UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39811

________________________

UNITED STATES

Appellee

v.

Jordan L. HICKMAN

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 22 January 2021

________________________

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 2019 by GCM convened at Ramstein Air Base, Germany.

For Appellant: Major Meghan R. Glines-Barney, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Matthew L. Tusing, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military 

Judges.

Judge MEGINLEY delivered the opinion of the court, in which Senior 

Judge POSCH and Judge 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This is an unpublished opinion and, as such, does not serve as 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, in 
United States v. Hickman, No. ACM 39811

2

violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 920, and one specification of larceny, in violation of Article 121, UCMJ, 10 

U.S.C. § 921.1 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, we 

affirm the findings and sentence.

I. BACKGROUND

Appellant entered active duty in June 2017 and was stationed 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 at his dormitory, wearing 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, according to JC, the onesie is similar 

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 39811

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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 security 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, motherf**kers.”6

Because the Government charged Appellant with assaulting JC while he 

was incapable 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 JC was like “dead weight to carry” and JC was mumbling

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 dormitory, 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 

others searched for JC’s room. Having found his room, approximately four people helped carry JC up the stairs, including 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.” The Government introduced surveillance videos taken by cameras at JC’s dormitory. According 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 2018 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. Given 

that 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. 
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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 LM 

helped 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 room to check on him, and according 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 BR related

that JC was yelling “random things,” but it was not intelligible. Once they entered JC’s room, “[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 know if he threw up or not at that point. I didn’t 

actually 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 once “the guy” said he was going to watch JC, SrA MB and A1C 

NC left. 

Appellant, 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.” A1C 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 testified the group left JC’s door cracked so that they could check 

on JC throughout 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. He was on his mattress 

without any sheets “huddled up against the wall side of the bed.” JC realized 
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his knee and arm were wet, and believed 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 opined 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, and 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 information, as he wanted to see if the dormitory manager would let him look at video camera footage taken outside his 

room. When the manager denied his request, JC, who stated he was still intoxicated, walked to meet with security forces, where he told them what had happened, including that he thought he had been sexually 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 individuals in the video. 

The video footage from the dormitory shows that at 0047, two Airmen (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, Appellant entered JC’s room without knocking. 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 identify 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 pursuant to a verbal search 

authorization and with Appellant’s consent, AFOSI agents searched Appellant’s room. Agents seized the PS4 that Appellant was seen taking on the dorm 

video. Agents also obtained a DNA swab from Appellant and sent both it and 
United States v. Hickman, No. ACM 39811

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JC’s underwear to the United States Army Criminal Investigation Laboratory

(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. MC 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 profile 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 the 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. DISCUSSION

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 prosecution, 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 term 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 omitted). 

As a result, “[t]he standard for legal sufficiency involves a very low threshold 
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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. 

1641 (2019).

The “government 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. 427, 432 (C.M.A. 1958).

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 whether 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. The 

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 anus 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 conduct 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 dress 

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 determining whether a person gave consent, or whether a person did not resist or 
United States v. Hickman, No. ACM 39811

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ceased to resist only because 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 id.; 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 the burden to 

prove beyond a reasonable doubt that the defense does not exist. R.C.M. 

916(b)(1); see 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]ppellant’s actions could 

only be considered innocent if he had formed a reasonable belief that he had 

obtained consent. The Government 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 collection are dwarfed by the other 

corroborating 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 in his rectum, a pain which lasted 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 trial 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 charged sexual act on JC. 

We next turn to whether the Government proved that JC was incapable of 

consenting due to impairment by alcohol. The testimony and evidence admitted at trial overwhelmingly shows JC was incapable of consenting to any sexual act with Appellant. The Snapchat video that was taken shortly before JC 
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returned to his 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 laying 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 Airmen. The 

testimonies of Airmen who came to his aid establish a collective concern 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 about 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. 

During 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 Appellant 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 sexually 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 consenting to sexual activity with Appellant during the 17 

minutes Appellant 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 Government 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. Furthermore, 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 would 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, knowing that 
United States v. Hickman, No. ACM 39811

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JC was incapable of consenting, 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 to 

consider 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 the 

elements to support Appellant’s conviction of sexual assault against JC. Furthermore, in assessing factual sufficiency, after weighing all the evidence in 

the 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 find 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). “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). 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 for 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 prepared 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 by 

the staff judge advocate. The response may consist of a statement of agreement or disagreement with the matter raised by 

the 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 39811

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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.” Appellant 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 information.”

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, when 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 has failed to identify what, if 

any, legal error 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 

necessary. 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. CONCLUSION

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 The 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). 
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Accordingly, the findings and the sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court