UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman CANDON S. BRAKE

United States Air Force

ACM S32172

15 October 2014

Sentence adjudged 20 August 2013 by GCM convened at Peterson 

Air Force Base, Colorado. Military Judge: Michael J. Coco (sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 90 days, 

forfeiture of $1,010.00 pay per month for 5 months, and reduction to E-1.

Appellate Counsel for the Appellant: Captain Lauren A. Shure.

Appellate Counsel for the United States: Major Robert Ramírez and Gerald 

R. Bruce, Esquire.

Before

ALLRED, HECKER, and TELLER

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final release.

TELLER, Judge:

Consistent with his pleas, the appellant was convicted at a special court-martial 

composed of a military judge alone of one specification of violation of a lawful general 

order, in violation of Article 92, UCMJ, 10 U.S.C. § 892. The court sentenced him to a 

bad-conduct discharge, confinement for 5 months, forfeiture of $1,010.00 pay per month 

for 5 months, and reduction to E-1. 

In accordance with a pretrial agreement (PTA), the convening authority reduced

confinement to 90 days but approved the rest of the sentence as adjudged. By the time of 

his trial, the appellant had been in pretrial confinement for 83 days, which in combination 
2 ACM S32172

with credit for good time, would satisfy the adjudged term of confinement. The 

convening authority therefore deferred confinement from the date of trial until action in 

anticipation of enforcing the PTA, in order to prevent the appellant from serving more 

confinement than the convening authority would ultimately approve.

The appellant contends the staff judge advocate (SJA) erred when he omitted the 

appellant’s combat service from the personal data sheet (PDS) presented to the convening 

authority prior to action. While we concur the omission was error, we find under a plain 

error analysis that there was no colorable showing of possible prejudice and affirm.

Background

The appellant, a security forces Airman, admitted to smoking “Spice” on- and 

off-duty on an almost daily basis between 1 April 2012 and 30 May 2013. Among other 

instances of on-duty use, he admitted to using Spice while serving as the team leader of 

an armed four-person detail assigned to the alarms monitoring area of the North 

American Aerospace Defense Command/United States Northern Command building on 

Peterson Air Force Base, Colorado, a protection level 1 facility.

When his drug use was discovered, he was offered and completed an inpatient 

substance abuse rehabilitation program. Shortly after completing the program, the 

appellant’s supervisor found him using Spice again while on-duty.

Omission of Combat Duty on the PDS

Proper completion of post-trial processing is a question of law, which this court 

reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) 

(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to timely comment 

on matters in the staff judge advocate’s recommendation (SJAR), or on matters attached 

to the SJAR, forfeits1any later claim of error in the absence of plain error. Rule for 

Courts-Martial 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005). 

“To prevail under a plain error analysis, [the appellant bears the burden of showing] that: 

‘(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced 

a substantial right.’” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65).

 

1 Rule for Courts-Martial 1106(f)(6) and United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) both indicate that 

waiver occurs when counsel fails to comment on matters in the staff judge advocate’s recommendation. However, 

our superior court’s decision in United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) recognizes that military 

courts had failed to “consistently distinguish between the terms ‘waiver’ and ‘forfeiture.’” Gladue held that waiver 

is the “intentional relinquishment or abandonment of a known right,” which precludes appellate review of an issue, 

while forfeiture is “the failure to make the timely assertion of a right” leading to plain error review on appeal

(quoting United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks omitted). Following Gladue, 

the term “forfeiture” should generally characterize the effect of a failure to timely comment on matters in the staff 

judge advocate’s recommendation. See United States v. Parker, __ M.J. __ ACM 38384 (A.F. Ct. Crim. App. 

15 October 2014) (stating that the appellant forfeited, rather than waived, a claim that erroneous information was 

attached to the staff judge advocate’s recommendation). 
3 ACM S32172

In this case, the SJA attached to the SJAR a copy of the PDS that incorrectly 

stated the appellant had no combat service. This was plain or obvious error.

2

Thus, the 

only question before us “is whether the [erroneous PDS] resulted in material prejudice to 

Appellant’s substantial right to have his request for clemency judged on the basis of an 

accurate record.” See United States v. Wellington, 58 M.J. 420, 427 (C.A.A.F. 2003). 

“Because of the highly discretionary nature of the convening authority’s action on the 

sentence, we will grant relief if an appellant presents ‘some colorable showing of possible 

prejudice’” affecting his opportunity for clemency. Kho, 54 M.J. at 65 (quoting 

United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)); Scalo, 60 M.J. at 436–37.

In this case, the appellant has failed to make a colorable showing of potential 

prejudice. The military judge, who reviewed an accurate PDS which listed the combat 

service as “Al Jaber, Kuwait: Aug 11 – Feb 12,” sentenced the appellant to a more severe 

sentence than that approved by the convening authority. The convening authority 

reduced the sentence in accordance with a PTA. The question is whether the nature of 

the appellant’s combat service was such that the convening authority might have reduced 

the sentence even further had he been aware of it.

The only detailed information in the record of trial about the appellant’s combat 

service comes from the appellant’s unsworn written statement. According to the 

statement, the appellant served six months in Kuwait during 2011 and 2012, where he 

re-opened a closed facility. He related that for the first couple months he was primarily 

tasked to re-establish defenses with sandbags and concertina wire. Although he 

mentioned being assigned to a detail that provided security for personnel traveling off the 

base, he did not mention being subjected to hostile fire or any particularized threat. The 

Government did not offer any rebuttal of the appellant’s statement.

The appellant did not include his unsworn statement as part of his clemency 

submission and did not provide the convening authority with any details about his combat 

service. See Scalo, 60 M.J. at 437. Instead, the clemency submission consisted only of a 

memorandum from his trial defense counsel arguing that the reduction, pretrial 

confinement, and 3 months forfeitures were sufficient punishment and that the remainder 

of the forfeitures and the bad-conduct discharge would only make the appellant’s 

reintegration unnecessarily more difficult. 

Although the threshold under the plain error analysis is low, it does require at least 

a colorable showing that the result would have been different but for the asserted error. 

On the facts of this case and in light of the severity of the appellant’s misconduct, we find 

 

2

 Prior to 2010, Rule for Courts-Martial 1106(d)(3)(C), expressly stated that the staff judge advocate must provide 

the convening authority with a “summary of the accused’s service record.” See Manual for Courts-Martial,

United States (MCM), Part II-150 (2008 ed.). In 2010, the rule was modified to eliminate that requirement, although 

the Drafter’s Analysis states this was done to “allow[] for the use of personnel records of the accused instead.” 

MCM, A21-88 (2012 ed.). Regardless of the language of the rule, the information provided to the convening 

authority must be correct.
4 ACM S32172

no reasonable possibility that the convening authority would have approved a less severe 

sentence had the PDS accurately reflected the appellant’s combat service to Kuwait.

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and 

sentence are AFFIRMED.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court