UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman Basic SIR EDWARD S. THOMAS JR.

United States Air Force

ACM S32184

29 Oc t ober 2014

Sentence adjudged 23 Septem ber 201 3 by SP CM convened at Tinker Air Force Base, Oklahoma . Military Judge: Natalie D. Richardson (sitting alone)

.

Approved S entence: Bad

- conduct discharge and confinement for 2 months

.

Appellate Counsel for the Appellant: Major Christopher D. James.

Appellate Counsel for the United States: Major Roberto Ram í rez and Gerald R. Bruce, Esquire

.

Before

HECKER , MITCHELL, and CONT OVEROS

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before fina l release

.

PER CURIAM :

A special court

- martial composed of a military judge convicted the appellant, pursuant to his pleas, of wrongfully using marijuana and breaking restriction, in violation

of Article s 112a and 134 , UCMJ, 10 U.S.C. §§ 9 12a

, 934

. The adjudged sentence

consisted of a bad

- conduct discharge and confinement for 2 months . T he convening authority approved the sentence as adjudged.

On appeal, the appellant argues he is entitled to a new convening authority action where the staff judge advocate failed to advise the convening authority of the military judge ’ s recommendation to suspend the bad

- conduct discharge.ACM S32184 2 Staff Judge Advocate ’ s Recommendation

The appellant pled guilty to using marijuana and breaking restriction

— behavior which caused multiple members of his unit to search for him. Following announcement of the sentence, the military judge said

, “I recommend clemency in the form of suspension of the executio n of the bad

- conduct discharge.” Because this clemency recommendation was not included in the staff judge advocate ’ s recommendation (SJAR)

, the appellant argues he is entitled to a new convening authority action.

Proper completion of post

- trial processi ng is a question of law which this c ourt
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 comment in a timely manner on matters in the SJAR, or on matters attached to the SJAR, forfeits * any later claim of error in the absence of plain error. R ule for C ourts

- M artial 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

, 6 0 M.J. at 436 (quoting Kho , 54 M.J. at 65). Because of the highly discretionary nature of the convening authority’s action on a sentence, we may 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 MJ 283, 289 (1998))

.

“A recommendation by a military judge must be brought to the attention of the convening authority to assist him in considering the action to take on the sent ence.”

United States v. Lee , 50 M.J. 296, 297 (C.A.A.F. 1999) ( c iting United States v. Clear

, 34 M.J. 129 , 134 (C.M.A. 1992) )

. The SJAR and a ddendum plainly omit any reference

to the military judge ’ s clemency recommendation. This omission constitutes plain and

obvious error.

We also find the appellant has made a colorable showing of prejudice from this error. Although the military judge ’ s recommendation was referenced within the appellant ’ s clemency submission, the convening authority should have bee n informed by

* 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, rathe r than waived, a claim that erroneous information was attached to the staff judge advocate’s recommendation).ACM S32184 3 his legal advisor of this significant and uncommon recommendation from a military judge , especially in light of the appellant ’ s significant medical issues.

Conclusion

The record of trial is returned to The Judge Advocate General for remand to the convening authority for withdrawal of the action and for post

- trial processing consistent with this opinion. R.C.M. 1107(g); Article 66(e), UCMJ, 10 U.S.C. § 866(e)

. Thereafter, Article 66(c), UCMJ, 10 U.S.C. § 866(c) , will apply.

FOR THE COURT

STEVEN LUCAS

Clerk of the Court