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_______ _______ __________
No. ACM S32712

_______ _______ __________
UNITED STATES Appellee

v.
Jackson J. MCCLENNEY Airman First Class , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 29 September 202 2

_______ _______ __________ Military Judge : Charles G. Warren (pretrial), Matthew P. Stoffel

. S entence: Sentence adjudged on 10 May 2021 by S p CM convened at Grand Forks Air Force Base, North Dakota . Sentence entered by military judge on 9 June 2021 : Bad

- conduct discharge , confinement for 45 days
, and reduction to E

- 1. For Appellant: Major Kasey W. Hawkins , USAF ; Sarah Urie (legal intern). 1

For A ppellee : Lieutenant Colonel Thomas J. Alford, USAF; Major Sarah L. Mottern, USAF; Major John P. Patera, USAF; Major Zachary T. West
, USAF; Mary Ellen Payne , Esquire

. Before POSCH
, CADOTTE
, and GOODWIN
, Appellate Military Judges

. Judge GOODWIN delivered the opinion of the c ourt, in which Senior Judge POSCH and Judge CADOTTE joined

.

_______ _______ __________
This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Pr actice and Procedure 30.4

.

1 Ms. Urie served as a law student extern and was at all times supervised by attorneys in accordance with Rule 14.1(c) of this court’s Rules of Practice and Procedure.United States v. McClenney , No. ACM S32 712

2 _______ _______ _____ _____
GOODWIN
, Judge :
A military judge sitting as a special court

- martial convicted Appellant, in accordance with his pleas, of one charge and three specification s of wrongful

use and possession of illegal drugs in violation of Article 112a , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 9 1 2 a

. 2
, 3 The adjudged and approved sentence consisted of a bad

- conduct discharge
, 4 5 days of confinement, and reduction to the grade of E

- 1

. In this appeal, Appellant rais es three assignment s of error : (1) whether his record of trial (ROT) is substantially incomplete because it contains a ruling from a different court

- martial as an appellate exhibit rather than the ruling from his court

- martial ; (2) whether he is entitled to sentence relief as a result of an error in his personal data sheet (PDS) ; and (3) whether he was illegally punished in violation of Article 13, UCMJ
, 10 U.S.C. § 813, when his pa y and TRICARE medical insurance coverage stopped upon entry into pretrial confinement. We agree with Appellant that the G overnment included a ruling from a different court

- martial as A ppellate E xhibit VI ; and that his PDS , admitted as P rosecution E xhibit 2 (PE 2) , included information about civilian misconduct

. W e find these alleged error s did not materially prejudice Appellant ’s substantial rights

. We also find Appellant waived the issue of illegal punishment and is not entitled to sentence relief for his claim that p ay and medical insurance
coverage were stopped upon entry into pretrial confinement

. W e therefore affirm the findings and sentence.

I. B ACKGROUND In December 2020, NH and EH, Appellant’s neighbors in Gra nd Forks A ir F orce B ase , North Dakota base housing , reported to security forces that they smelled burning marijuana coming from their ventilation system. NH had training that made him familiar with the smell of burning marijuana. Security

2 Appellant was convicted of one specification each of wrongful use of marijuana, possession of cocaine, and possession of steroids

. Appellant was also charged with one charge and one specification of wrongful possession of drug paraphernalia in violation of Article 134, UCMJ, 10 U.S.C. § 9 34 . The G overnment withdrew and dismissed with prejudice th e Article 134 charge and specification pursuant to its plea agreement with Appellant.

3 Unless otherwise specified, all references in this opinion to the UCMJ and Rules for Courts

- Martial are to the Manual for Courts

- Martial, United States (2019 ed.). See Exec. Order 13,825, §§ 3 and 5, 83 Fed. Reg. 9889, 9890 (8 Mar. 2018).United States v. McClenney , No. ACM S32 712

3 f orces personnel responded and confirmed, based on their training, the smell of burning marijua na. Based on the layout of the ventilation system, it appeared the marijuana smell was coming from Appellant’s residence

. After receiving search authorization, security forces investigators entered Appellant’s home where they immediately smelled b urning marijuana. Investigators found in plain view, a grinder with a leafy, green substance ; an ash tray with a marijuana “blunt ; ” and a plate containing a white powder. During the search, investigators also found a bag containing a leafy, green substance ; unused syringes ; vials of what field tested as steroids ; and pills. The items located in Appellant’s home later tested positive for marijuana,cocaine, and steroids. Appellant’s urine tested positive for tetrahydrocannabinol, a psychoactive compound in marijuana. During Appellant’s court

- martial, the military judge accepted his pleas and found him guilty of wrongful use of marijuana
, and wrongful possession of cocaine and steroids . Thereafter, t he military judge sentenced Appellant to a bad

conduct discharge, confinement for 45 days, and reduction to the grade of E

- 1.

II. D ISCUSSION
A. Incomplete Record of Trial Appellant first asserts that his ROT is incomplete because the military judge’s ruling gran ting a d efense request for a continuance of the court

- martial is missing and contains instead an order from a different, unrelated court

- martial. Appellant claims this missing appellate exhibit constitutes a substantial omission, rendering the ROT incomple te, and requiring remand. While we findthe appellate exhibit of the military judge’s order is missing from the authenticated ROT , we are not persuaded that the ROT is substantially incomplete or that Appellant suffered prejudice

. 1. Additional Background

Dur ing Appellant’s arraignment on 4 March 2021, the military judge hadpretrial motions and responses marked as appellate exhibits. Appellant’s motion for a continuance was marked as A ppellate E xhibit II. After marking several other exhibits related to the mo tion for a continuance, the military judge asked that the court ’s ruling granting the continuance be marked as an appellate exhibit. The G overnment did not have a copy of the order available and requested a moment to locate it. Trial defense counsel told t he military judge that he had a copy of the ruling, which he provided to be marked as A ppellate E xhibit VI (AE VI)

. The document marked as AE VI in the ROT is not, however, the ruling pertaining to Appellant’s court

- martial.United States v. McClenney , No. ACM S32 712

4 On 30 August 2021, the court reporter certified that the ROT was accurate and complete in accordance with Rule for Courts

- Martial (R.C.M.) 1112(b). On 22 September 2021, the record was docketed with the court. When docketed, the ROT contained as AE VI the ruling from an unrelated case
, and did not contain the ruling from Appellant’s court

- martial.

2. Law and Analysis

We review de novo whether a ROT is complete. United States v. Davenport
, 73 M.J. 373, 376 (C.A.A.F. 2014) (citation omitted). A complete record of proceeding s is required for every court

- martial in which the sentence adjudged includes , among other things, a bad

- conduct discharge. Article 54, UCMJ, 10 U.S.C. § 854. A complete record include s “ any exhibits that were received in evidence and any appellate exhibits.” R.C.M. 1112(b)(6). “[A] substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the [G] overnment must rebut.” United States v. Harrow , 62 M.J. 649, 654 (A.F. Ct. Crim. App. 2006). However, “ [i]nsubstantial omissions from a recordof trial do not raise a presumption of prejudice or affect that record’s characterization as a complete one.” United States v. Henry , 53 M.J. 108, 111 (C.A.A.F. 2000) (holding that four missing prosecution exhibits w ere insubstantial omissions when other exhibits of similar sexually explicit material were included). We address whether an omission is substantial on a case

- by

case basis

. United States v. Abrams , 50 M.J. 361, 363 (C.A.A.F. 1999) (citation omitted).

The authenticated ROT clearly does not contain the military judge’s ruling granting Appellant a continuance and instead contains as AE VI a ruling from

an unrelated court

- martial. The G overnment requested permission to attach trial counsel’s declaration with t he omitted order. We granted the G overnment’s motion under United States v. Jessie , 79 M.J. 437 (C.A.A.F. 2020)
, and attached the declaration and the order to the appellate record

. W e do not consider th is attachment to the appellate record a means of compl eting the record

. The G overnment was required to include appellate exhibits in the record and failed to do so.
However, a fter reviewing the ROT and trial counsel’s declaration , we conclude that the G overnment’s inclusion of an unrelated ruling and omission of the actual ruling constituted an insubstantial omission. The missing ruling has no impact on the underlying evidence or the providence of Appellant’s plea. Furthermore, because the ruling granted Appellant his requested continuance, he was not prejudiced by its omission. Consequently, we find the G overnment’s omission was harmless, and that nothing prejudiced Appellant’s substantial rights . We do not order remand and do not order the ROT returned for correction under R.C.M. 1112(d).United States v. McClenney , No. ACM S32 712

5 B. Personal Data Sheet Appellant next asserts, for the first time on appeal, that he is entitled to sentence relief because PE 2, his PDS
, contained references to civilian misconduct. While we agree with Appellant that PE 2 contained references to civilian misconduct, we are not persuaded that Appellant suffered any prejudice as a result.

1. Additional Background
During sentencing, the G overnment introduced PE 2. The military judge asked Appellant and counsel whether the infor mation in the PDS was correct, and Appellant, trial defense counsel, and the G overnment all agreed that it
was correct . The military judge admitted the PDS without d efense objection. The “nature of pretrial restraint” section of Appellant’s PDS states
, “Wr ongfuluse, possession of controlled substances, Drunken Operation of a Vehicle, Driving Under Suspension .”

2. Law and Analysis Because trial defense counsel did not object to the admission of Appellant’s PDS at trial, we review this issue for plain error. See United States v. Cary , 62 M.J. 277 (C.A.A.F. 2006). If there exists an error in the admission of sentencing evidence, we de termine “whether the error substantially influenced the adjudged sentence.” United States v. Barker , 77 M.J. 377, 384 (C.A.A.F. 2018) (citation omitted). To determine whether an error substantial ly influenced a sentence, we consider “(1) the strength of th e Government ’ s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question.” Id . (citation omitted). Assuming error here, Appellant has demonstrated no prejudice . The G overnm ent presented a comparatively stronger sentencing case than did Appellant. The G overnment introduced evidence that Appellant used and possessed multiple illegal drugs and had previously received nonjudicial punishment

. In contrast, Appellant did not submit sentencing evidence or provide a sworn or unsworn statement. 4 A fter a successful d efense objection to certified civilian convictions, the G overnment withdrew the evidence and did not reoffer it during its case

- in

- chief. The only remaining testimony regarding Appellant’s civi lian convictions provided foundation for opinion testimony regarding Appel4 As discussed below, we assume trial defense counsel elected to forego sentencing evidence for a strategic purpose.United States v. McClenney , No. ACM S32 712

6 lant’s rehabilitation potential. Likely for strategic purpose s , trial defense counsel forewent presenting sentencing evidence

. 5 Consequently, trial defense counsel kept evidence of Appellant’s civilian convictions out of the record except for the limited , foundational purpose discussed above

. Given the military judge’s comments during sentencing about trial counsel arguing facts that were not in evidence , it is clear he gave very little weight to Appellant’s civilian convictions. Consequently , w e conclude that any error here did not substantially influence Appellant’s sentence. Appellant also alleges that the civilian misconduct included in his PDS “possibly influenced” the convening authority ’s denial of Appellant’s requested clemency. Appellant did not submit a motion under R.C.M. 1104 alleging an error in post

- trial processing or an error in the convening authority’s action ;

n or did he comment on the PDS in his clemency submission. Accordingly, we review this allegation for plain error. Here, Appellant presents no evidence of prejudice. Rather, he speculates that, when decid ing whether to take action, the convening authority might have recalled the civilian misconduct listed on Appellant’s PDS that was part of Appellant’s referral package
, and that this recollection might have influenced his clemency decision. 6 Appellant’s speculation , however, fails to demonstrate prejudice.

C. Pretrial Confinement and Stoppage of Pay and Insurance Benefits Appellant finally asserts, for the first time on appeal, that he was subjected to illegal pretrial confinement because, whe n he entered pretrial confinement, his pay stopped, and his T RICARE benefits ceased. While we sympathize with the hardships these mistakes created for Appellant, we find that Appellant waived the issue of illegal pretrial confinement and is not entitled to sentence relief.

1. Additional Background

D uring sentencing, the military judge asked Appellant whether he had been punished in any way that might constitute illegal pretrial punishment under Article 13, UCMJ. Appellant and trial defense counsel responded in the negative. Later, the G overnment called Appellant’s first sergeant, KL, as a witness. During cross

- examination of KL, trial defense counsel elicited evidence that
, upon entry into pretrial confinement, Appellant ’s pay was erroneously stopped for severa l months. In addition, T RICARE dropped Appellant from its

5 By not introducing sentencing exhibits, trial defense counsel did not cause relaxation of the evidence rules and did not give the Government the opportunity to reoffer the civilian convictions in its sentencing rebuttal case.

6 In his clemency request, Appellant asked the convening authority to disapprove the reduction in rank to the grade of E

- 1.United States v. McClenney , No. ACM S32 712

7 medical coverage. Following KL’s testimony, the military judge again asked trial defense counsel whether Appellant had suffered any illegal pretrial punishment . In response to the military judge’s i nquiry , trial defense counsel stated that the D efense was using the pay and benefits loss in mitigation and extenuation and not urging an Article 13, UCMJ
, violation.

2. Law and AnalysisWhen “an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.” United States v. Gladue , 67 M.J. 311, 313 (C.A.A.F. 2009) (citations omitted). Additionally, the “failure at trial to raise the issue of il legal pretrial punishment waives that issue for the purposes of appellate review absent plain error.” United States v. Inong , 58 M.J. 460, 461 (C.A.A.F. 2003). Appellant expressly denied having experienced illegal pretrial punishment under Article 13, UCMJ
, when asked about it during his arraignment. However, our superior court urges “ military judges to remember that nothing precludes them from inquiring sua sponte into whether Article 13 violations have occurred, and prudence may very well dictate that the y should. ” Inong , 58 M.J. at 465. Here, during sentencing, the military judge did exactly as urged by our superior court . After hearing about Appellant’s loss of pay and benefits during trial defense counsel’s cross

- examination of KL, the military judge su a sponte asked a second time about the potential illegal pretrial punishment issue. Thereafter, Appellant again waived the issue. In so doing, Appellant intentionally gave up his right to seek relief under Article 13, UCMJ, thereby waiving this issue on ap peal.

III. C ONCLUSION The findings and sentence as entered are correct in law and fact, and noerror materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66( d ), UCMJ, 10 U.S.C. §§ 859(a), 866( d ). Accord ingly, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court