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_______ _______ __________

No. ACM 39811

_______ _______ __________

UNITED STATES Appellee

v.

Jordan L. HICKMAN
Airman First Class (E

- 3 ) , U.S. Air Force, Appellant

________________________ Appeal from the United S tates Air Force Trial Judiciary

Decided 22 January 20 2 1

_______ _______ __________ Military Judge: Mark W. Milam (arraignment); Willie J. Babor (motions); Christina M. Jimenez

. Approved sentence: Dishonorable discharge, confinement for 3 years

, forfeiture of all pay and allowances, and reduction to E

- 1 . Sentence adjudged 20 June 201 9 by GCM convened at Ramstein Air Base, Germany

. For Appel lant: Major Meghan R. Glines

- Barney, USAF

. For App ellee: Lieutenant Colonel Brian C. Mason, USAF; M ajor Matthew L. Tusing , USAF; Mary Ellen Payne , Esquire

. Before POSCH, RICHARDSON, and MEGINLEY

, Appellate Military Judges

. Judge MEGINLEY delivered the opinion of the c ourt, in which Senior Judge POSCH and Ju dge RICHARDSON joined.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.

________________________

MEGINLEY

, Judge:
Contrary to his pleas, a general court

- martial composed of a military judge sitting alone found Appellant guilty of one specification of sexual assault, inUnited States v. Hickman , No. ACM 39 811

2 violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 , and one specification of larceny , in violation o f Article 12 1 , UCMJ, 10 U.S.C. § 92 1

. 1 Appellant was sentenced to a dishonorable discharge, confinement for three years

, forfeiture of all pay and allowances, and reduction to the grade of E

- 1. The convening authority approved the sentence as adjudged.
Appellant raises three assignments of error on appeal: (1) whether the evidence is legally and factually sufficient to support his sexual assault conviction; (2) whether the omission of an appellate exhibit renders the record of trial incomplete ; 2 and ( 3) whether Appellant is entitled to new post

- trial processing
because of an error in the staff judge advocate’s recommendation (SJAR)

. Finding no error materially prejudicial to the substantial rights of Appellant , w e affirm the findings and sentence

.

I. B ACKGROUND
Appellant entered active duty in June 2017 and was st ationed at Ramstein Air Base, Germany

, where he committed the offenses. On 4 May 2018, between
2100 and 2130 hours

, JC , the victim in this case, 3 attended a party being held
in a common room a t his dormitory , we aring a “Chewbacca” onesie. 4 JC did not recall having any drinks prior to going to the common room. Once he arrived,

1 Unless otherwise noted, references to the Uniform Code of Military Justice (UCMJ) and Rules for Courts

- Martial are to the Manual for Courts

- Martial, United States (2016 ed.). Appellant’s case was referred to trial on 21 December 2018.

2 Appellant argues the record of trial ( ROT) is incomplete because an appellate exhibit is missing . Based on our review of the ROT

, including the transcript of proceedings, we determine that the missing exhibit is a slide presentation used by trial counsel in findings argument. We are confident that the omission is insubstantial and the ROT is substantially complete. See United States v. Henry , 53 M.J. 108, 111 (C.A.A.F 2000). Accordingly, we find the omission of the appellate exhibit is harmless and did not prejudice Appellant or hinder this court’s statutory duty to conduct appellate review under Article 66, UCMJ , 10 U.S.C. § 866

. We find this assignment of error does not require further discussion or warrant relief

. See United States v. Matias , 25 M.J. 356, 361 (C.M.A. 1987).

3 At the time of the offense, JC was an active duty Airman

.

4 The court notes that “Chewbacca” is a character from the “Star Wars” film franchise

. May 4th is referred to by fans as “Star Wars Day,” as a pun off a notable saying in the films, “May the force be with you.” Additionally, a ccording to JC, the onesie is s imilar

to a one

- piece pajama set with a zipper that extended to just below JC’s bellybutton towards his waist. It did not have covered feet or socks, and in JC’s words, “stopped like regular jogger pants.” It also had a hood at the top of the head.United States v. Hickman , No. ACM 39 811

3 he started drinking beer, and later, drank “jungle juice.” 5 At trial, JC recalled drinking eight to nine cups of jungle juice throughout the evening.
At some point in the evening , security forces personnel were called to the dormitory because the party became too loud. The party moved to a pond next to the dormitory after s ecurity forces left . JC’s last memory of that night was walking from the pond to a pavilion, where he stood on the table and yelled, “May the fourth be with you, mother f ** k ers.” 6
Because the Government charged Appellant with assaulting JC while he
was inc apable of consenting due to impairment by alcohol , the trial counsel presented evidence tending to show JC’s condition before the sexual assault. Towards the end of the night, Senior Airman ( SrA ) MB saw JC lying on a bench. SrA MB asked JC if he wanted to go home in which JC said yes. SrA MB, along with another Airman, helped walk JC to his dorm room, noting JC was not able to walk well and was a little disoriented. Towards the end of the walk, SrA MB stated J C was like “dead weight to carry” and JC was mum bling incomprehensibly. SrA MB stated it was an eight

- to ten

- minute walk from the pavilion to JC’s dorm room.
When they arrived at the dorm itory , SrA MB asked JC where his room was
located. JC did not verbally respond, but “pointed up.” JC was able to tell SrA MB his keys were in his pocket. SrA MB put JC on the ground while he and
other s searched for JC’s room. Having found his room, a pproximately four people helped carry JC up the stairs , inc luding SrA MB, SrA DB , A1C LM, and Appellant

. SrA DB testified JC was “being dragged” to his room and “was also not in a good mental state. I believe he was crying.” T he Government introduced surveillance videos taken by cameras at JC ’s dormitory. Accordin g to the timestamp on the video evidence, JC was brought to his room at approximately 0009 on 5 May 2018. 7

5 A1C KM, who made the “jungle juice,” testified that the drink contained rum, vodka, gin, and tequila, mixed with Hawaiian punch.

6 A witness took a “Snapchat” video of JC standing on the table drinking out of a bottle. The video was recorded at 0005 on 5 May 2 018 according to the witness who made it. “Snapchat” is a popular social media application.

7 The Snapchat video of Appellant drinking at the pavilion was taken at 0005, whereas the dormitory video of Appellant being taken to his room was recorded at 0009 . Giventhat the walk from the pavilion was no less than eight minutes, the court notes a possible time discrepancy between those two videos. The court also notes that any references to timestamps on the dormitory videos in this opinion are to timestamps located in the upper right corner of the videos.United States v. Hickman , No. ACM 39 811

4 A1C LM testified that he was in his dorm room when he heard people outside. He left his room and saw JC lying down on the ground outside the dormitory on his stomach. A1C LM stated JC was “crying, really upset,” talking about an individual who had committed suicide in the dormitory. A1C LMhelped carry JC, as “he wasn’t walking at all.” A1C LM stated that JC eventually calmed down, laid down on his bed, and fell asleep. A little after 0300, A1C
LM went to JC ’s roo m to check on him , and a ccording to A1C LM, the light was
still on in JC’s room, JC was still in his onesie, and it looked like he was in the same position that A1C LM had left him

. A1C BR , who was also present when the group carried JC to his room, testified JC was “yelling hysterically and just being really loud.” A1C B R related that JC was yelling “random things,” but it was not intelligible. O nce they entered JC’s roo m, “ [ a ] t first he wasn’t wanting to calm down,” but as soon as the group put him into bed, he settled down, passed out, and went to sleep.

SrA MB ’s observations of the scene were as follows:

There [ were ] quite a few people in his room. Everyone just kind
of

— someone’s grabbing water, someone’s grabbing the trash bin. It’s pretty hectic. Everyone is around. Once that happens, I was towards the door making sure

— I was just asking [JC], are you okay? I don’t k now if he threw up or not at that point. I didn’tactually see anything. I thought he did because there was something on my shirt. I wasn’t for sure

. . . I don’t know who the gentleman was, but there was another man and he said he was going to be looking after [JC]

. SrA MB testified that when he left the room, JC was wearing the “onesie type thing,” but it was down to his hips. JC also did not have a shirt on. SrA
MB stated that o nce “the guy” said he was going to watch JC, SrA MB and A1C NC left.
Appell ant , who did not live on Ramstein Air Base, planned to spend the night in A1C RM’s dorm room . A1C RM testified that at some point after JC was brought to his room, Appellant told A1C RM he was leaving to “ check on the person that was taken to his room.” A1 C RM did not know how long Appellant was gone. A1C RM also noted that that Appellant was “probably not really intoxicated. Like maybe buzzing, but that’s about it.”

A1C NC testif ied the group left JC’s door cracked so that they could check

on JC throughou t the night to make sure he would be okay, which A1C NC and A1C LM did several hours later. He also stated that they took JC’s arms out of
his onesie so he would not overheat.
JC woke up on 5 May 2018 between 1300 and 1400. H e was on his mattress without any sheets “huddled up against the wall side of the bed.” JC realizedUnited States v. Hickman , No. ACM 39 811

5 his knee and arm were wet, and believ ed that he had urinated on himself as he slept . JC eventually got up to go to the restroom. When he went to sit down

on the toilet, JC said his rectum “was hurting abnormally ,” which was a sensation he had never had, and opin ed his pain level was a seven or eight out of

ten . JC felt this “[pain for] two to three weeks.”
After he pulled up his underwear (boxer shorts) , he felt a “sticky kind of crust” on his right buttock, but went back to his bed. As his “consciousness” started to come back, he could feel the pain in his body, so he got back up and took a shower. Sitting in the shower for 30 minutes to an hour, the pain JC was experiencing did not subside. After he got out of the shower, JC noticed
the boxers he had been wearing the night before were on the floor, and he had a different pair of boxers on when he woke up. He also noticed his entire room smelled like urine, a nd that the clothing he was wearing was also wet. Finally, he realized that his “ PlayStation 4” (PS4) , a video gaming system, was missing.

JC got dressed and went downstairs to the common room, where he found the dormitory emergency contact info rmation , a s he wanted to see if the dormitory manager would let him look at video camera footage taken outside his
room. When the man a ger denied his request, JC, who stated he was still intoxicated, walked to meet with s ecurity f orces, where he told them what had ha ppened , including that he thought he had been sexual ly assaulted

. JC was taken to the hospital, where a sexual assault forensic examination was performed.
Air Force Office of Special Investigations (AFOSI) agents initiated an investigation based on JC’s report

. Reviewing the video footage from JC’s dormitory, and conducting interviews of people who were at the party, agents were able to identify the individuals who helped carry JC to his room

. Appellant was identified as one of those indivi duals in the video.
The video footage from the dormitory shows that at 0047, two A irmen (identified as A1C LM and A1C NC) went back to JC’s room , apparently to check up
on him , and stayed for about one minute

. Approximately 75 seconds after A1C
LM and A1C NC left , App ellant entered JC’ s room without knock ing

. Within

two minutes, Appellant shut the door . The video later shows Appellant , at 0107, leaving JC’s room and carrying a white box, which JC would later identif y as his stolen PS4. JC testified that, other than a single interaction with Appellant at a club, he had no contact, much less any relationship

, with Appellant.
After identifying Appellant in the video, and p ursuant to a verbal search authorization and with Appellant’s consen t, AFOSI agents searched Appellant’s room . Agents seiz ed the PS4 that Appellant was seen taking on the dorm
video

. Agents also obtained a DNA swab from Appellant and sent both it andUnited States v. Hickman , No. ACM 39 811

6 JC’s underwear to the United States Army Criminal Investigation Lab orator y (USACIL) for DNA analysis.
Ms. MC, a forensic biologist employed by USACIL

, testified for the Government. Ms. MC analyzed JC’ s sexual assault kit, which included rectal swabs from JC, the known DNA standards from Appellant and JC , and JC’s underwear. Ms

. M C first “tested the rectal swabs” and “identif[ied] semen on the rectal swabs.” Ms. MC then performed a DNA analysis which determined that“the semen DNA profile . . . was consistent with originating from two individuals.” Ms. MC compared the DNA profil e of the semen against the “known standards of [JC] and [Appellant],” and concluded that, assuming one profile was from JC, the remaining DNA profile was consistent with Appellant’s . Ms. MC further testified that based on her analysis, the DNA profile of t he semen
on the rectal swabs was “ at least one quintillion times more likely ” to have originated from JC and Appellant than from JC and an unknown individual

. At some point, A1C JK, a friend of Appellant, heard that Appellant was a part of an investigation “about something that happened during that night at
the dorm.” A1C JK pressured Appellant to tell him what happened. Appellant told A1C JK, “it was a onetime thing,” and that Appellant “just want[ed] to try
it. ”

II. D ISCUSSION

A. Legal and Factual Sufficiency

1. Law
We review issues of legal and factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. United States v. Dykes , 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosec ution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Robinson , 77 M.J. 294, 297

– 98 (C.A.A.F. 2018) (quoting United States
v. Rosario , 76 M.J. 114, 117 (C.A.A.F. 2017) ). “The ter m reasonable doubt, however, does not mean that the evidence must be free from conflict.” United States
v. Wheeler , 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. Lips , 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d , 77 M.J. 289 (C.A.A.F. 2018).“[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner , 56 M.J. 131, 134 (C.A.A.F. 2001) (citations om itted). As a result, “[t]he standard for legal sufficiency involves a very low thresholdUnited States v. Hickman , No. ACM 39 811

7 to sustain a conviction.” United States v. King , 78 M.J. 218, 221 (C.A.A.F. 2019) (alteration in original) (citation omitted), cert. denied , __ U.S. __, 139 S. Ct.
164 1 (2019).

The “ g overnment is free to meet its burden of proof with circumstantial
evidence.” Id. (citations omitted). This includes proving an accused’s knowledge

. See United States v. Curtin

, 9 U.S.C.M.A. 4 27 , 4 3 2 (C. M. A. 19 58 )

. The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [we are ourselves ] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner

, 25 M.J. 324, 325 (C.M.A. 1987). “In conducting this unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our] own independent determination as to wheth er the evidence constitutes proof of each required element beyond a reasonable doubt.’”
Wheeler , 76 M.J. at 568 (alteration in original) (quoting Washington , 57 M.J. at 399).
Appellant was convicted of sexual assault while JC was incapable of consenting due to impairment by alcohol, in violation of Article 120, UCMJ

. T he
Prosecution was required to prove three elements beyond a reasonable doubt: (1) that Appellant committed a sexual act upon JC by causing penetration, however slight, of JC’s a nus by Appellant’s penis; (2) that JC was incapable of consenting to the sexual act due to impairment by alcohol ; and ( 3 ) that Appellant knew or reasonably should have known of the impairment. See Manual for Courts

- Martial, United States (2016 ed.) ( MCM ), pt. IV, ¶ 45.b.(3)( f ).
With regard to consent, the statute explains,
[t]he term “consent” means a freely given agreement to the con

duct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dr ess of the person involved with the accused in the conduct at issue
shall not constitute consent.

See MCM

, pt. IV, ¶ 45.a.(g)(8)(A). The statute further explains that “[a] sleeping, unconscious, or incompetent person cannot consent.” See MCM

, pt. IV, ¶ 45.a.(g)(8)(B) . “Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in deter

mining whether a person gave consent, or whether a person did not resist orUnited States v. Hickman , No. ACM 39 811

8 ceased to resist only be cause of another person’s actions.” See MCM

, pt. IV, ¶ 45.a.(g)(8)(C)

. The affirmative defense of mistake of fact as to consent requires that an appellant, because of ignorance or mistake, incorrectly believe that another
consented to the sexual contact. See Rule for Courts

- Martial ( R.C.M. ) 916(j)(1). In order to rely on this defense , Appellant’s belief must be honest and reasonable. See i d

. ; United States v. Jones , 49 M.J. 85, 91 (C.A.A.F. 1998) (quoting United States v. Willis , 41 M.J. 435, 438 (C.A.A.F

. 1995)) ; United States v. Gans , No. ACM 39321, 2019 CCA LEXIS 162, at *14 (A.F. Ct. Crim. App. 11 Apr. 2019) (unpub. op.). Once raised, the Government bears t he burden to prove beyond a rea sonable doubt that the defense does not exist. R.C.M. 916(b)(1); se e United States v. McDonald , 78 M.J. 376, 379 (C.A.A.F. 2019). Yet, the “burden is on the actor to obtain consent, rather than the victim to manifest
a lack of consent .” McDonald , 78 M.J. at 381. An “[a]ppell ant’s actions could only be con sidered innocent if he had formed a reasonable belief that he had
obtained consent . The G overnment only need [s] to prove that he had not done so to eliminate the mistake of fact defense.” Id

.
2. Analysis
Appellant argues there was no evidence that the rectal swabs taken from
JC were obtained from JC’s rectum, as the Government did not present any testimony regarding the collection of the rectal swabs , and did not prove beyond a reasonable doubt that Appellant penetrated JC’s anus. While there was no testimony from a witness with personal knowledge of the collection of these swabs, questions about the integrity of the collect ion are dwarfed by the other

cor roborating evidence supporting our finding that Appellant’s conviction is factually and legally sufficient

. If nothing else, the DNA analysis proves that Appellant engaged in sexual contact with JC

, as Appellant’s semen was found on JC

. JC testified about the pain he felt i n his rectum, a pain which last ed for two to three weeks, which
led him to report a sexual assault. The video footage from outside JC’s dorm room shows Appellant enter the room, shut the door, and remain for approximately 17 minutes. Additionally

, the tria l counsel presented testimony from
A1C JK, who testified Appellant told him , “it was a onetime thing,” and that Appellant “just want[ed] to try it. ” We find that under these circumstances a rational factfinder could determine that Appellant committed the c harged sexual act on JC

. We next turn to whether the Government proved that JC was incapable ofconsenting due to impairment by alcohol. The testimony and evidence admitted at trial overwhelming ly shows JC was incapable of consenting to any sexual act with Appellant . The Snapchat video that was taken shortly before JCUnited States v. Hickman , No. ACM 39 811

9 return ed to h is dormitory shows him drinking and clearly intoxicated. JC
needed assistance to walk back to his room from the pavilion

. Once he arrived

at his dormitory, and as he was layin g on the ground, JC could not communicate the location of his room other than pointing up . The surveillance video shows JC being dragged and carried up the stairs by multiple A irmen

. The
testimon ies of Airmen who came to his aid establish a collective conc ern about JC’s well

- being because of his impairment

. Additionally, at 0047, less than 40 minutes after bringing him to his room and about two minutes before Appellant re

- entered the room

, when A1C LM went back to check on JC , he observed
that “[JC] was laying [sic] in the same position [as they had left him], [and]
hadn’t moved.” Finally, although JC was never asked at trial whether he consented, or whether he was able to consent to having sexual activity with Appellant, from JC’s testimony ab out what he could remember , including the facts that he soiled himself in his sheets and was wearing a different pair of underwear when he awoke in the morning, we can reasonably infer JC was incapable of consenting to sexual activity with Appellant.

Duri ng his cross

- examination of the Government’s forensic psychologist, civilian defense counsel referenced statements made by Appellant to AFOSI,
which alluded to the possibility that JC was capable of consenting to a sexual

act with Appellant, and that Appel lant labored under a mistaken belief that JC consented to the sexual act. However, no evidence was admitted to support such a claim

. The evidence shows that Appellant was an opportunist who entered into another Airman’s room for the explicit purpose of sex ually assaulting a virtual stranger, with whom he had no relationship. We find that a rational factfinder could infer from the facts and circumstances that JC would have
been incapable of consent ing to sexual activity with Appellant during the 17
minutes A ppellant was in JC’s room

. Finding JC was incapable of consenting, we look to the last element of this offense, in that JC’s condition was known or reasonably should have been known to Appellant. Again, strong direct and circumstantial evidence shows the G overnment met its burden. Testimony and video evidence indicate that Appellant helped carry JC to his room and was present as the group tried to calm JC and convince him to sleep. Further more , there was testimony from A1C RM that Appellant told him he was going to help JC get to his room safely as the group was trying to get JC to his room

. Later, Appellant, who was spending the night in A1C RM’s dorm room, and according to A1C RM, was not that intoxicated, told A1C RM he was leaving to check on JC and woul d return. A
rational factfinder could determine that Appellant knew or should have known JC was incapable of consenting to the charged sexual act.

The evidence shows that a rational factfinder could conclude that Appellant’s sexual assault of JC was planned and calculated. That is, k nowing thatUnited States v. Hickman , No. ACM 39 811

10 JC was incapable of consent ing , Appellant feigned concern for JC, only to lie in wait for an opportunity to sexually assault him

. In assessing legal sufficiency, we are limited to the evidence produced at trial and are required toconsider it in the light most favorable to the Government. In doing so, we conclude a rational factfinder could have found beyond a reasonable doubt all theelements to support Appellant’s conviction of sexual assault against JC. Furth ermore, in assessing factual sufficiency, after weighing all the evidence inthe record of trial and having made allowances for not having personally observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. Therefore, we fin d Appellant’s conviction of sexual assault against JC both legally and factually sufficient.

B. Claim of SJAR Error

1. Law
Proper completion of post

- trial processing is a question of law that 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 SJAR, or matters attached to the recommendation, forfeits any later claim of error in the absence of plain error.
R.C.M. 1106(f)(6); United States v. Scalo , 60 M.J. 435, 436 (C.A.A.F. 2005)

. “ Toprevail under a plain error analysis, [the appellant bears the burden of showing] that: ‘ (1) there was an error; (2) it was pla in or obvious; and (3) the error materially prejudiced a substantial right. ’” Scalo , 60 M.J. at 436 (quoting Kho

, 54 M .J. at 65 ). Although the threshold for establishing prejudice in this context is low, the appellant must nonetheless make at least some “ colorable showing of possible prejudice in terms of how the [perceived error] potentially affected [his] opportunity fo r clemency. ” Id . at 437

. R.C.M. 1106(d)(4) states:
The staff judge advocate or legal officer is not required to examine the record for legal errors. However, when the recommendation is pr epared by a staff judge advocate, the staff judge advocate shall state whether, in the staff judge advocate ’ s opinion, corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted
under R.C. M. 1105 or when otherwise deemed appropriate bythe staff judge advocate. The response may consist of a statement of agreement or disagreement with the matter raised bythe accused. An analysis or rationale for the staff judge advocate ’ s statement, if any, concerning legal error is not required.United States v. Hickman , No. ACM 39 811

11 2. Analysis
Appellant asserts that this court should reassess his sentence or remand the case for a new convening authority action because the SJAR incorrectly stated, “The defense did not allege legal error.” Appellan t argues this statement “was made before [he] was given the opportunity to submit matters to the convening authority for clemency,” and in turn, impacted his “decision
whether to submit matters at all” and left “the Convening Authority with incorrect infor mation.”
We agree it was premature for the staff judge advocate to state that “ [t] he [D] efense has not alleged error” in the SJAR if referring to matters submitted
under R.C.M. 1105

. Yet, w hen given the opportunity to address the incorrect language in the SJAR, neither Appellant nor his trial defense counsel chose to do so, as Appellant waived his right to submit clemency matters. Finally, even in the appellate processing of his case, Appellant h as failed to identify what, if any, legal err or is at issue

. Based upon the staff judge advocate’s recommendation to approve the findings and sentence as adjudged, we find that any further discussion would have only reinforced the staff judge advocate’s position that no corrective action was

necess ary. The convening authority indicated in his indorsement to the addendum to the SJAR that he considered post

- trial submissions , which would include Appellant’s waiver . The convening authority followed the staff judge advocate’s recommendation and approved the findings and sentence as adjudged. 8 We find no colorable basis to conclude the convening authority would have acted differently had the staff judge advocate not included this language
in the SJAR . This assignment of error is without merit.

III. C ONCLUSION
The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

8 T he convening authority had no power to affect the findings

, and, as to the sentence, had the power to affect the forfeitures and reduction in grade only

. See Article 60(c)(4), UCMJ, 10 U.S.C. § 860(c)(4)

.United States v. Hickman , No. ACM 39 811

12 Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court