UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM S32469 (f rev)

________________________

UNITED STATES

Appellee

v.

Morgan C. HILL

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

________________________

Appeal from the United States Air Force Trial Judiciary

Upon Further Review

Decided 21 August 2018

________________________

Military Judge: Michael D. Schag.

Approved sentence: Bad-conduct discharge, confinement for 75 days, and 

reduction to E-1. Sentence adjudged 23 March 2017 by SpCM convened 

at McConnell Air Force Base, Kansas.

For Appellant: Patrick A. Clary, Major, USAF.

For Appellee: Mary Ellen Payne, Major, USAF.

Before MAYBERRY, MINK, and DENNIS, Appellate Military Judges.

Chief Judge MAYBERRY delivered the opinion of the court, in which 

Senior Judge MINK and Judge DENNIS joined. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________

MAYBERRY, Chief Judge:

We have this case for further review because we ordered new post-trial processing because of errors in the addendum to the staff judge advocate’s recommendation (SJAR), which misstated the amount of adjudged forfeiture of pay

and erroneously recommended the convening authority (CA) disapprove the 
United States v. Hill, No. ACM S32469 (f rev)

2

automatic forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b. United 

States v. Hill, No. ACM S32469, 2017 CCA LEXIS 718 (A.F. Ct. Crim. App. 21 

Nov. 2017) (unpub. op.). 

The military judge sentenced Appellant to confinement for six months, forfeitures of $900.00 pay for six months, reduction to the grade of E-1, and a badconduct discharge. On 6 April 2017, the original CA deferred the automatic 

and adjudged forfeitures until action pursuant to Article 57a, UCMJ, 10 U.S.C. 

§ 857a. The original action taken on 10 May 2017 disapproved the adjudged 

forfeitures. In our previous opinion, we found there were no material errors 

associated with the pleas, findings, or adjudged sentence but remanded for new 

post-trial processing in light of the erroneous SJAR addendum. Id. at *5, *7. 

Appellant submitted no supplemental pleading but we address additional errors in the new post-trial process. Finding no error materially prejudicial to 

the substantial rights of Appellant, we affirm the findings and sentence.

I. BACKGROUND

On remand, Appellant’s case underwent new post-trial processing and the 

staff judge advocate (SJA) prepared a new SJAR that included an accurate 

recitation of the adjudged punishment and maximum allowable punishment. 

Additionally, the SJAR correctly stated the CA could not disapprove, commute, 

or suspend, in whole or in part, the punitive discharge or automatic forfeitures 

but did have the authority to disapprove, commute, or suspend, in whole or in 

part, Appellant’s term of confinement, reduction in rank, and adjudged forfeitures. The SJA recommended the CA approve only so much of the sentence 

that included a bad-conduct discharge, confinement for 75 days, and reduction 

to the grade of E-1—explicitly recommending the CA disapprove the adjudged 

forfeitures. 

The matters submitted by Appellant’s counsel include a comment on “an 

additional limitation” on the CA’s authority not covered by the SJAR. It goes 

on to state:

Although the addendum to the first [SJA’s] recommendation endorsed the disapproval of the adjudged forfeitures, and the first 

[CA] action did not approve this portion of the punishment, your 

[SJA’s] current recommendation advises you to approve the adjudged forfeitures. For the following reasons, any convening authority action purporting to approve the adjudged forefeitures 

[sic] would not be legally sufficient. . . . [N]ew processing . . . 

cannot lead to a worse outcome for the accused [citing to Article 

60(f)(2)(C) and Article 63, UCMJ]. In other words, you are free 

to provide relief in addition to what was granted by the first [CA] 

action, but any [CA] action that leaves [Appellant] in a worse 
United States v. Hill, No. ACM S32469 (f rev)

3

position than the original action would be outside of your discretion. 

The 9 April 2018 SJAR addendum does not correct the defense counsel’s 

misstatement as to the 10 January 2018 recommendation to disapprove the 

adjudged forfeitures and goes so far as to “amend” the recommendation, stating:

Defense counsel asserts you may not approve the adjudged forfeitures in this case. I concur. Accordingly, my earlier recommendation has changed. I recommend you approve the findings as 

adjudged and only so much of the sentence as calls for a bad conduct discharge, confinement for 75 days, and reduction to the 

grade of E-1.

II. DISCUSSION

A. Law

Proper completion of post-trial processing is a question of law 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 (C.A.A.F. 2000)). If we find 

error, Appellant must nevertheless make some “colorable showing of possible 

prejudice” to his opportunity for clemency from the CA in order to secure relief. 

United States v. LeBlanc, 74 M.J. 650, 660 (C.A.A.F. 2015) (quoting United 

States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005)). 

R.C.M. 1107(f)(2) provides in pertinent part: 

When so directed by a higher reviewing authority . . . the convening authority shall modify any incomplete, ambiguous, void, 

or inaccurate action noted in review of the record of trial under 

Article[ ] . . . 66 . . . . The convening authority shall personally 

sign any supplementary or corrective action.

B. Analysis

The errors associated with the new post-trial processing of this case may 

not have huge financial consequences or persuade this court to exercise its authority to grant relief. They do, however, illustrate a pervasive lack of attention 

to detail and the importance of correctly documenting the particularities of an 

appellant’s sentence and the applicable law, by both parties. 

Under certain circumstances pursuant to R.C.M. 1107(f)(2), the CA’s ability 

to modify an action is expressly restricted in that it cannot “result in action 

less favorable to the accused than the earlier action.” This language is contained in neither the subsequent verbiage of R.C.M. 1107(f)(2) nor R.C.M. 

1107(g) authorizing a higher reviewing authority to direct a new action. As 
United States v. Hill, No. ACM S32469 (f rev)

4

such, defense counsel’s reliance on Articles 60(f)(2)(C) and 63, UCMJ, 10 U.S.C. 

§§ 860(f)(2)(C), 863, is misplaced. Those provisions address proceedings in revision or rehearing, not new post-trial processing. See also United States v. 

Garza, 61 M.J. 799, 802 (A. Ct. Crim. App. 2005).

Appellant has not asserted, and we do not find, any colorable showing of

possible prejudice in his opportunity to receive clemency. In the end, Appellant 

requested and received deferment and ultimately disapproval of the adjudged 

forfeitures totaling $900.00. 

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). Accordingly, the findings and sentence are AFFIRMED. 

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court