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 October 2014

Sentence adjudged 23 September 2013 by SPCM convened at Tinker

Air Force Base, Oklahoma. Military Judge: Natalie D. Richardson (sitting 

alone).

Approved Sentence: 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 Ramírez and 

Gerald R. Bruce, Esquire.

Before

HECKER, MITCHELL, and CONTOVEROS

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before final 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 Articles 112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934. The adjudged sentence 

consisted of a bad-conduct discharge and confinement for 2 months. The 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. 
2 ACM S32184

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 execution 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 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 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. 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). 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 sentence.” 

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

34 M.J. 129, 134 (C.M.A. 1992)). The SJAR and addendum 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 been 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, rather than waived, a claim that erroneous information was 

attached to the staff judge advocate’s recommendation).
3 ACM S32184

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