UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32712

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UNITED STATES

Appellee

v.

Jackson J. MCCLENNEY

Airman First Class, U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 29 September 2022

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

Sentence: Sentence adjudged on 10 May 2021 by SpCM 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 Appellee: 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 court, in which Senior 

Judge POSCH and Judge CADOTTE 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This is an unpublished opinion and, as such, does not serve as 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 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 S32712

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GOODWIN, Judge:

A military judge sitting as a special court-martial convicted Appellant, in 

accordance with his pleas, of one charge and three specifications of wrongful 

use and possession of illegal drugs in violation of Article 112a, Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. § 912a.

2,3 The adjudged and approved 

sentence consisted of a bad-conduct discharge, 45 days of confinement, and reduction to the grade of E-1.

In this appeal, Appellant raises three assignments 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 pay and 

TRICARE medical insurance coverage stopped upon entry into pretrial confinement.

We agree with Appellant that the Government included a ruling from a 

different court-martial as Appellate Exhibit VI; and that his PDS, admitted as 

Prosecution Exhibit 2 (PE 2), included information about civilian misconduct. 

We find these alleged errors 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 pay and medical insurance 

coverage were stopped upon entry into pretrial confinement. We therefore affirm the findings and sentence.

I. BACKGROUND

In December 2020, NH and EH, Appellant’s neighbors in Grand Forks Air 

Force Base, 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. § 934. The Government withdrew and dismissed with 

prejudice the 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).
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forces personnel responded and confirmed, based on their training, the smell 

of burning marijuana. 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 burning 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, the military judge sentenced Appellant to a badconduct discharge, confinement for 45 days, and reduction to the grade of E-1.

II. DISCUSSION

A. Incomplete Record of Trial

Appellant first asserts that his ROT is incomplete because the military 

judge’s ruling granting a defense 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 incomplete, and requiring remand. While we find 

the 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

During Appellant’s arraignment on 4 March 2021, the military judge had 

pretrial motions and responses marked as appellate exhibits. Appellant’s motion for a continuance was marked as Appellate Exhibit II. After marking several other exhibits related to the motion for a continuance, the military judge 

asked that the court’s ruling granting the continuance be marked as an appellate exhibit. The Government did not have a copy of the order available and 

requested a moment to locate it. Trial defense counsel told the military judge 

that he had a copy of the ruling, which he provided to be marked as Appellate 

Exhibit VI (AE VI). The document marked as AE VI in the ROT is not, however, 

the ruling pertaining to Appellant’s court-martial.
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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 proceedings 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 includes “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 record 

of 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 were insubstantial omissions when other exhibits of similar sexually explicit material 

were included). We address whether an omission is substantial on a case-bycase 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 Government requested permission to attach 

trial counsel’s declaration with the omitted order. We granted the Government’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. We do not consider this attachment to the appellate record a means of completing the record. 

The Government was required to include appellate exhibits in the record and 

failed to do so. 

However, after reviewing the ROT and trial counsel’s declaration, we conclude that the Government’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 Government’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).
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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 Government introduced PE 2. The military judge 

asked Appellant and counsel whether the information in the PDS was correct, 

and Appellant, trial defense counsel, and the Government all agreed that it 

was correct. The military judge admitted the PDS without defense objection. 

The “nature of pretrial restraint” section of Appellant’s PDS states, “Wrongful 

use, 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 determine “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 substantially influenced a 

sentence, we consider “(1) the strength of the 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 Government presented a comparatively stronger sentencing case than did Appellant. The Government 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 After a successful defense objection to certified civilian 

convictions, the Government withdrew the evidence and did not reoffer it during its case-in-chief. The only remaining testimony regarding Appellant’s civilian 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 S32712

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lant’s rehabilitation potential. Likely for strategic purposes, 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, we 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; 

nor 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 deciding 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, when he entered pretrial confinement, 

his pay stopped, and his TRICARE 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

During 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 Government 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 several months. In addition, TRICARE 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.
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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 inquiry, trial defense counsel 

stated that the Defense was using the pay and benefits loss in mitigation and 

extenuation and not urging an Article 13, UCMJ, violation. 

2. Law and Analysis

When “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 illegal 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 they 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 sua 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 appeal.

III. CONCLUSION

The findings and sentence as entered are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court