UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32433

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UNITED STATES

Appellee

v.

James I. MILLER

Senior Airman (E-4), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 25 April 2018

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Military Judge: Brendon K. Tukey.

Approved sentence: Bad-conduct discharge, confinement for 7 months, 

forfeiture of $1000.00 pay per month for 7 months, and reduction to E1. Sentence adjudged 26 July 2016 by SPCM convened at Misawa Air 

Base, Japan.

For Appellant: Major Allen S. Abrams, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Meredith L. Steer, USAF; Captain Michael T. Bunnell, USAF; Mary Ellen 

Payne, Esquire.

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

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

JOHNSON and Judge DENNIS joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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United States v. Miller, No. ACM S32433

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MINK, Judge:

A special court-martial composed of a military judge sitting alone convicted 

Appellant, in accordance with his pleas and a pretrial agreement (PTA), of two 

specifications of committing lewd acts upon a child, in violation of Article 120b, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. The adjudged and 

approved sentence consisted of a bad-conduct discharge, confinement for seven 

months, forfeiture of $1000.00 pay per month for seven months, and reduction 

to E-1.1 

The sole issue raised by Appellant on appeal is whether he is entitled to 

new post-trial processing because the convening authority considered new victim impact matters that Appellant was not given the opportunity to address. 

Although not raised by the parties, we also address additional errors in the 

staff judge advocate’s recommendation (SJAR) to include erroneous advice regarding the maximum sentence and the fact that an incorrect personal data 

sheet (PDS) was attached to the SJAR. Finding no error materially prejudicial 

to a substantial right of Appellant, we affirm the findings and sentence.

I. BACKGROUND

In July 2015, Appellant was a 24-year-old Airman and member of a band 

hired to perform music at a 35th Security Forces Squadron barbeque on 

Misawa Air Base (AB), Japan. During the barbeque, HF, the 14-year-old dependent daughter of MSgt MF and Mrs. AF, approached Appellant, who played 

the guitar in the band, and told him that she was interested in learning to play 

the guitar. Appellant offered to teach HF how to play the guitar. Appellant, 

HF, and HF’s parents agreed Appellant would provide HF free weekly guitar 

lessons at the Mokuteki Teen Center on Misawa AB.

During one of the subsequent weekly guitar lessons, Appellant told HF that 

he was physically and emotionally attracted to her and kissed her on the lips. 

Appellant kissed HF on the lips during four other guitar lessons between July 

and December of 2015.

 

1 The PTA between Appellant and the convening authority providing that the latter 

would refer Appellant’s case to trial by special court-martial contained no limitation 

on the sentence that could be approved, and therefore, had no impact on the convening 

authority’s ability to approve the adjudged sentence. 
United States v. Miller, No. ACM S32433

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On a separate occasion in September 2015, after HF invited Appellant to 

her house, Appellant drove to HF’s house, parked his car nearby, and HF came

outside and got into the front passenger seat of Appellant’s car. Appellant then 

pulled HF onto his lap and they began kissing. While they were kissing, Appellant grabbed HF’s buttocks and fondled her breasts. 

In December 2015, after discovering an unfamiliar cell phone in HF’s bedroom, MSgt MF pretended to be HF and exchanged text messages with Appellant, who asked HF to come to his dormitory room and expressed the desire to 

kiss her. MSgt MF then reported what he had discovered to the Air Force Office 

of Special Investigations.

HF did not testify during the sentencing portion of Appellant’s court-martial, but she did submit a handwritten statement discussing the impact of Appellant’s actions on her life. Her father, MSgt MF, did testify about the consequences of Appellant’s actions on HF and his family, including the decision to 

return HF and her mother back to the continental United States at the family’s

own expense in an effort to make sure that HF was further protected. MSgt 

MF also testified as to the family separation that followed and the stress resulting from these circumstances. 

II. DISCUSSION

A. Victim Impact Statement

On 12 September 2016, the staff judge advocate (SJA) signed the SJAR, 

which was served on Appellant. On 20 September 2016, Appellant submitted 

a clemency letter to the convening authority, requesting that his time in confinement be reduced. Also attached to his clemency letter were several documents that had been admitted during the sentencing portion of his trial. The 

SJA then prepared the addendum to the SJAR, which listed an attachment 

identified as “Victim’s Submission of Matters” and included a parenthetical 

indicating that it had been “Provided to [Appellant] on 13 Sep 16,” the day after 

Appellant was served with the SJAR. The “Victim’s Submission of Matters”

memorandum was a two-page document dated 12 September 2016 and signed 

by MSgt MF. The memorandum submitted by MSgt MF constituted a victim 

impact statement authorized under Rule for Courts-Martial (R.C.M.) 1105A. 

See also Air Force Instruction (AFI) 51-201, Administration of Military Justice, 
United States v. Miller, No. ACM S32433

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¶ 9.9 (6 Jun. 2013, as amended by AFGM 2016-1, 3 Aug. 2016).2 A victim of an 

offense is entitled to submit matters for consideration by the convening authority before action is taken on the court-martial. R.C.M. 1105A. When a victim 

is under 18 years of age, the child’s parent is included in the definition of a 

“victim” who may submit a victim impact statement. Id. MSgt MF’s statement 

discussed much of the same information he related during his trial testimony, 

but also included a recommendation that the convening authority approve the 

adjudged sentence. 

On appeal, relying on the various detailed receipts included in the record, 

appellate defense counsel asserts there is no indication that Appellant’s trial 

defense counsel ever received MSgt MF’s statement. In addition, appellate defense counsel argues that the record has conflicting information as to when 

Appellant received MSgt MF’s statement, but asserts the receipt Appellant 

signed on 30 September 2016 demonstrates that he did not receive the SJAR 

addendum or MSgt MF’s statement until after the convening authority’s action

on that same date, depriving Appellant of the opportunity to respond to what 

constituted a “new matter.” See R.C.M. 1106(f)(7). Appellant only requested 

reduced confinement in his clemency request, which appellate defense counsel 

acknowledges the convening authority lacked the power to grant.3 See R.C.M. 

1107(d)(1)(B). However, appellate defense counsel asserts that Appellant suffered prejudice in that, had he received MSgt MF’s statement, Appellant “may 

have joined his character letters in generally requesting leniency,” since MSgt 

MF’s statement echoed the SJAR advice that the convening authority approve 

the sentence as adjudged. Appellate defense counsel also asserts that Appellant suffered prejudice due to the lack of opportunity to respond to MSgt MF’s 

reactions to the offenses as Appellant’s trial defense counsel had at trial. 

As a result of Appellant’s assertion of this error, the Government submitted 

and this court accepted a declaration by a paralegal in the Misawa AB legal 

office and email correspondence between the paralegal and the defense paralegal. These documents established that Appellant’s trial defense counsel received a copy of MSgt MF’s statement on 13 September 2016, the same date 

that the addendum to the SJAR indicates MSgt MF’s statement was provided 

 

2 This version of AFI 51-201 was in effect during the post-trial processing of Appellant’s 

case in September 2016. 

3 Appellant’s trial defense counsel did not submit a memorandum with Appellant’s 

clemency matters to the convening authority. 
United States v. Miller, No. ACM S32433

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to Appellant. However, the record still contains no receipt from Appellant indicating that he received MSgt MF’s statement, other than when he received 

the SJAR addendum after action had been taken. The inclusion of such a receipt in the record would have obviated the need for this issue to be addressed 

on appeal.

Despite the absence of a separate receipt indicating that Appellant received 

MSgt MF’s statement on 13 September 2016, we disagree that the record is 

“conflicting” as to when Appellant received MSgt MF’s statement. To the contrary, the information contained within the record indicates that Appellant received MSgt MF’s statement on 13 September 2016 (as stated by the SJA in 

the addendum to the SJAR), and again on 30 September 2016 when he received 

a copy along with the addendum to the SJAR. The record, as it stands now, is 

clear that Appellant’s trial defense counsel received MSgt MF’s statement on 

13 September 2016, allowing sufficient time for Appellant and his trial defense 

counsel to consult and determine whether and how to respond to MSgt MF’s 

statement prior to the due date for submission of Appellant’s clemency matters. Notably, Appellant has not provided any evidence that he did not receive 

a copy of MSgt MF’s statement on 13 September 2016. In the absence of any

such information in the record, we are left to conclude that Appellant and his 

trial defense counsel received MSgt MF’s statement with sufficient time to address any matter contained therein upon the submission of clemency matters.

Accordingly, despite the absence of a receipt, we find Appellant has not demonstrated error with respect to service of the victim impact statement. 

Even assuming arguendo that Appellant did not personally receive a copy 

of MSgt MF’s statement until 30 September 2016, after the convening authority had taken action, we find no colorable showing of possible prejudice. See 

United States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005). Appellant’s trial 

defense counsel had received MSgt MF’s statement prior to Appellant’s submission of clemency matters. Further, we find appellate defense counsel’s assertions as to how Appellant might have asked for different relief had he received MSgt MF’s statement prior to submission of his clemency request unpersuasive. Finally, even had Appellant modified his clemency request, considering the totality of the circumstances we find no reasonable likelihood that 

the convening authority might have taken different action in this case.

B. SJAR Errors

Our review of the record in this case also revealed two errors in the SJAR.

First, the SJA incorrectly advised the convening authority as to the maximum 
United States v. Miller, No. ACM S32433

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sentence that could be imposed. Second, the PDS attached to the SJAR contained incorrect information. 

The proper completion of post-trial processing is a question of law this court 

reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. 

App. 2015). If the Defense does not make a timely comment on an error in the 

SJAR, the error is waived “unless it is prejudicial under a plain error analysis.” 

United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (citing R.C.M. 1106(f); 

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Under a plain error analysis, we assess whether: “(1) there was an error; (2) it was plain or obvious; and 

(3) the error materially prejudiced a substantial right.” Id. (quoting Kho, 54 

M.J. at 65). To meet the third prong of the plain error test in the context of a 

post-trial SJAR error, whether that error is preserved or is otherwise considered under the plain error doctrine, we must find “some colorable showing of 

possible prejudice.” Id. at 436–37 (quoting Kho, 54 M.J. at 65). Because Appellant did not object to the SJAR, we test for plain error. Scalo, 60 M.J at 436. 

The maximum sentence that could be imposed in Appellant’s case was the 

jurisdictional limit of a special court-martial, to include: a bad-conduct discharge; confinement for 12 months; forfeiture of two-thirds pay for 12 months;

and reduction to E-1. R.C.M. 201(f)(2)(B)(i). The SJAR erroneously stated that 

the maximum sentence that could be imposed was a dishonorable discharge, 

confinement for 12 months, forfeiture of all pay and allowances, and a reduction to E-1.

Despite this obvious error, we find no colorable showing of possible prejudice. The adjudged and approved sentence including a bad-conduct discharge, 

confinement for seven months, forfeiture of $1000.00 per month for seven 

months, and reduction to E-1 was a legally permissible sentence, well within 

the jurisdictional limits of a special court-martial. The Government did not 

seek an impermissible sentence and none was adjudged. While Appellant requested a reduction in the adjudged confinement of seven months, he did not 

allege any error in the SJAR and does not assert he suffered any prejudice as 

a result. In some cases, an SJAR that overstates the maximum punishment 

may prejudice an appellant. See, e.g., United States v. Gooding, No. ACM 

S32337 (A.F. Ct Crim. App. 6 Dec. 2016) (unpub. op.). However, in this case we 

find no basis to conclude the SJAR’s erroneous inclusion of impermissible maximum punishments influenced the convening authority to Appellant’s detriment. Given the sentence adjudged by the court-martial and the convening authority’s agreement to refer Appellant’s case to a special court-martial under 
United States v. Miller, No. ACM S32433

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the terms of the PTA, we are confident that a correct statement of the maximum imposable sentence in the SJAR would not have led to a more favorable 

recommendation by the SJA or clemency by the convening authority. Therefore, no relief is warranted on this basis.

Next, we note that both the PDS introduced during Appellant’s court-martial and the copy attached to the SJAR contained an error. Specifically, the 

PDS failed to record the fact that Appellant had received a prior action under 

Article 15, UCMJ, 10 U.S.C. § 815, unrelated to the offenses charged in this 

case. We find this error also plainly obvious, given the fact that Appellant’s 

Record of Nonjudicial Punishment (NJP) Proceedings pursuant to Article 15, 

UCMJ, was introduced into evidence during Appellant’s court-martial. However, we again find no colorable showing of possible prejudice and conclude 

that a correct PDS indicating that Appellant had a previous Article 15 action 

would not have led to a more favorable recommendation by the SJA or clemency by the convening authority. To the contrary, the absence of the notation 

of a prior Article 15 action on the PDS could have worked to Appellant’s benefit,

even though the Article 15 record was included in the sentencing exhibits admitted at trial, since it was not highlighted on the PDS. Again, we find no relief 

warranted for this error. 

Lastly, we note that this is yet another case before this court where the lack 

of attention in the post-trial processing of a court-martial has resulted in avoidable clear errors requiring appellate review even though we ultimately find 

Appellant is not entitled to any relief. 

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