UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39186

________________________

UNITED STATES

Appellee

v.

Terence N. EKABE

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

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 10 April 2018

________________________

Military Judge: Ryan A. Hendricks.

Approved sentence: Dishonorable discharge, confinement for 1 year and 

6 months, forfeiture of all pay and allowances, and reduction to E-1. 

Sentence adjudged 15 September 2016 by GCM convened at Joint Base 

McGuire-Dix-Lakehurst, New Jersey. 

For Appellant: Major Allen S. Abrams, USAF.

For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Major J. Ronald Steelman III, USAF; Mary Ellen Payne, Esquire.

Before HARDING, SPERANZA, and HUYGEN, Appellate Military 

Judges.

Judge SPERANZA delivered the opinion of the Court, in which Senior 

Judge HARDING and Judge HUYGEN joined. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________
United States v. Ekabe, No. ACM 39186

2

SPERANZA, Judge:

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

consistent with Appellant’s pleas pursuant to a pretrial agreement, of absence without leave; assault consummated by a battery of his spouse; and 

service-discrediting conduct for throwing a dog against a wall, in violation of 

Articles 86, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 886, 928, 934. The military judge sentenced Appellant to a dishonorable discharge, one year and six months of confinement, forfeiture of all pay 

and allowances, and reduction to E-1. The convening authority approved the 

adjudged sentence.1

On appeal, Appellant claims that he is entitled to new post-trial processing because the staff judge advocate’s recommendation (SJAR) and the 

court-martial order (CMO) “inaccurately captured the findings.” We find no 

prejudicial error and affirm.

I. BACKGROUND

Appellant, a naturalized citizen from the Republic of Cameroon, physically abused his Cameroonian wife over approximately four months after she 

joined him in New Jersey. During the last assault in which Appellant 

punched his wife in the eye, Appellant threw their two-month old pit bull 

against a wall. Appellant’s wife photographed her own injuries and flew to 

Texas to escape the abuse.

While in Texas, Appellant’s wife obtained a protective order against Appellant. The Air Force Office of Investigations (AFOSI) was notified of the 

domestic violence allegations against Appellant and interviewed Appellant, 

who admitted to physically abusing his wife while they lived together in New 

Jersey.

Three months after a second interview with AFOSI, Appellant requested 

and was granted leave in the local area in order to “rest and clear [his] head.” 

After approximately two and a half weeks of local leave, Appellant left near 

his apartment building’s dumpster four trash bags containing his uniform 

items and financial documents and wrote on a dry-erase board in his apartment a lengthy “suicide note” that confirmed his decision to choose “AWOL” 

 

1 The pretrial agreement limited any term of confinement to no more than 24 

months. The agreement placed no other restrictions upon the sentence that could be 

approved by the convening authority.
United States v. Ekabe, No. ACM 39186

3

over suicide. Appellant flew to Cameroon where he stayed with family for just 

over a month.

Appellant did not contact any Air Force officials during his absence but 

eventually flew back to North America and attempted to return to the United 

States on a bus from Toronto, Canada. Appellant was apprehended by border 

patrol agents during a passport check in New York. Appellant was subsequently ordered into pretrial confinement.

II. DISCUSSION

In addition to the assault and service-discrediting conduct, Appellant was 

charged with desertion in violation of Article 85, UCMJ, 10 U.S.C. § 885, and 

rape in violation of Article 120, UCMJ, 10 U.S.C. § 920. In accordance with 

the pretrial agreement, Appellant pleaded guilty to absence without leave

instead of desertion, all specifications of assault consummated by a battery 

with one exception and substitution, and the service-discrediting conduct of 

throwing the dog into a wall with excepted language. In exchange for Appellant’s guilty pleas, the convening authority agreed, in pertinent part, to 

amend the desertion charge to the lesser included offense of absence without 

leave (terminated by apprehension) and to dismiss with prejudice the rape 

charge and its specifications. 

Prior to trial, the Article 85, UCMJ, desertion charge was amended to allege a violation of Article 86, UCMJ, absence without leave; the rape charge

and its specifications were dismissed; one assault consummated by a battery 

specification was amended with the agreed exception and substitution; and 

the Article 134, UCMJ, specification was amended to remove the agreed excepted language. After these changes were made to the charge sheet, the 

charges were renumbered to reflect the dismissal of the rape charge (originally Charge II). Appellant was subsequently arraigned and pleaded guilty to all 

charges and specifications.

After trial, the staff judge advocate (SJA) provided the convening authority with the SJAR. Throughout the SJAR, the SJA referenced the charges as 

originally numbered on the charge sheet. The SJA also stated that the rape 

charge and its specifications “were withdrawn” rather than dismissed with 

prejudice in accordance with the pretrial agreement. However, the SJAR referred the convening authority to the attached report of result of trial that 

correctly stated the charges at arraignment, Appellant’s pleas, and the military judge’s findings. The SJAR also correctly stated the convening authority’s options for action on the findings and sentence. Appellant submitted a 

personal letter offering matters in extenuation and mitigation for the convening authority’s consideration in clemency. Appellant did not identify any legal 

errors with the SJAR or request any specific relief from the convening au-
United States v. Ekabe, No. ACM 39186

4

thority. The addendum to the SJAR restated the SJA’s recommendation that 

the convening authority approve the adjudged sentence. The convening authority approved the adjudged sentence.

The resulting CMO contained several errors. The order erroneously stated 

Appellant’s pleas and the findings as to the absence without leave charge and 

specification; Appellant’s pleas and findings as to one of the assault specifications; and the findings for the specification of service-discrediting conduct.

Although “not disputing what happened at his trial,” Appellant now 

claims that he was prejudiced in two ways by what he deems the “plain and 

obvious error” in the SJAR. First, Appellant maintains “the post-trial processing muddled whether the original Charge II was dismissed with prejudice 

as bargained for in the [pretrial agreement].” Second, Appellant notes “the 

convening authority affirmatively asserted he considered the incorrect 

SJAR.” Accordingly, Appellant concludes he was denied procedural due process required by the Fifth Amendment2 and requests we order new post-trial 

processing. We decline to do so.

The proper completion of post-trial processing is a question of law we review de novo. United States v. LeBlanc, 74 M.J. 650, 660 (A.F. Ct. Crim. App. 

2015) (citing United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 

2004)). “If defense counsel does not make a timely comment on an omission 

[or 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 Rule for Courts-Martial (R.C.M.) 1106(f); United States v. Kho, 54 M.J. 

63, 65 (C.A.A.F. 2000)). Under a plain error analysis, Appellant must persuade this court that “(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 an SJAR

error, Appellant must make “some colorable showing of possible prejudice.” 

Id. at 436–37 (quoting Kho, 54 M.J. at 65). “The threshold is low, but there 

must be some colorable showing of possible prejudice. . . . in terms of how the 

[error] potentially affected an appellant’s opportunity for clemency.” Id. at 

437.

As an initial matter, we note that we are once again compelled to resolve 

a post-trial processing issue in which hours of appellate review could have 

been avoided with several minutes of attention to detail. However, recogniz-

 

2 U.S. CONST. amend. V.
United States v. Ekabe, No. ACM 39186

5

ing that the careless errors in the SJAR and CMO were plain and obvious, 

Appellant does not articulate how he may have been prejudiced. Prior to the 

initial session and arraignment in Appellant’s court-martial, the Government, in accordance with the pretrial agreement, dismissed the rape charge 

and its specifications; amended the desertion charge; and changed one of the 

assault specifications. Accordingly, the rape charge and its specifications 

were not before Appellant’s court-martial. Appellant was properly arraigned 

on the remaining charges and specifications, as amended and modified. The 

dismissed rape charge and its specifications were not and should not have

been included in the CMO, as Appellant was not arraigned on those offenses. 

The report of result of trial accurately captured the disposition of all 

charges and specifications that were before Appellant’s court-martial. Importantly, the convening authority was referred to this correct document by 

the confusing SJAR. The SJAR’s references to the originally numbered 

charges and specifications do not, in and of themselves, amount to some possible prejudice to Appellant. The convening authority referred the original 

charges, was party to the pretrial agreement, and considered a correct report 

of result of trial. Furthermore, the SJAR’s mistaken comment about the rape 

charge being “withdrawn” rather than “dismissed” or “dismissed with prejudice” prior to Appellant’s court-martial does not, without further explanation, 

amount to some showing of possible prejudice. The practical effect remained 

the same—that charge and its specifications were dismissed, were no longer 

before Appellant’s court-martial, and were not presented to the convening 

authority for consideration when taking action. Moreover, Appellant makes 

no claim that the convening authority failed to abide by the terms of the pretrial agreement, that the convening authority intended not to comply with 

the agreement’s terms, or that Appellant would have sought some sort of specific relief in the absence of the SJAR errors. Rather, Appellant complains 

that the convening authority’s compliance with the pretrial agreement was 

somehow not captured in the post-trial documents. Although the Government’s decision to dismiss, amend, and modify charges and specifications prior to Appellant’s arraignment injected confusion during post-trial processing, 

Appellant raised no immediate objections, sought no specific relief from the 

convening authority who was correctly apprised of his authority on action, 

and offered no explanation as to how the post-trial processing would have 

proceeded differently—let alone more favorably to Appellant—absent the errors. See United States v. Johnson, 26 M.J. 686, 689 (A.C.M.R. 1988); see also 

United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996).

While we agree Appellant was entitled to action ordered by a properly advised convening authority, Appellant is nonetheless required on appeal to 

make some colorable showing that he suffered possible prejudice because of 

the post-trial processing errors in this case. Merely identifying errors and 
United States v. Ekabe, No. ACM 39186

6

concluding prejudice does not pass the low threshold. We find that Appellant 

failed to meet his burden. 

III. CONCLUSION

The findings of guilt and the 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.3

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

3 We order a corrected CMO to remedy the errors identified in this opinion.