UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32430

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UNITED STATES

Appellee

v.

Brandon M. ZEGARRUNDO

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

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Appeal from the United States Air Force Trial Judiciary

Decided 31 January 2018

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Military Judge: J. Wesley Moore.

Approved sentence: Bad-conduct discharge, confinement for 30 days, 

and reduction to E-1. Sentence adjudged 3 June 2016 by SpCM convened at Moody Air Force Base, Georgia. 

For Appellant: Major Allen S. Abrams, USAF; Major Megan E. Hoffman-Logsdon, USAF; Captain Patrick A. Clary, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary 

Ellen Payne, USAF; Major Meredith L. Steer, USAF; Captain Michael 

T. Bunnell, USAF. 

Before HARDING, SPERANZA, and HUYGEN, Appellate Military 

Judges.

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

Judge HARDING and Judge SPERANZA joined. 

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PUBLISHED OPINION OF THE COURT

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HUYGEN, Judge:

Appellant pleaded guilty at a special court-martial to one specification 

each of attempt to wrongfully possess lysergic acid diethylamide (LSD) with 
United States v. Zegarrundo, No. ACM S32430

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the intent to distribute; conspiracy to distribute 3,4-

methylenedioxymethamphetamine (MDMA) and cocaine; wrongful possession 

of cocaine and 3,4-methylenedioxy-N-ethylcathinone; wrongful use of cocaine; 

attempted wrongful use of LSD; and wrongful use of marijuana, in violation 

of Articles 80, 81, and 112a, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 880, 881, 912a. A panel of officers sentenced Appellant to a badconduct discharge, confinement for 30 days, reduction to the grade of E-1, and 

forfeiture of $1,044.00 pay per month for one month. The convening authority 

approved the adjudged sentence except for the forfeiture of pay. 

Appellant submitted his case on its merits with no specific assignment of 

error. The court specified the following issue: whether Appellant is entitled to 

new post-trial processing consistent with the decision of the United States 

Court of Appeals for the Armed Forces (CAAF) in United States v. Addison, 

75 M.J. 405 (C.A.A.F. 2016) (mem), because the addendum to the staff judge 

advocate’s recommendation (SJAR) failed to correct an error in Appellant’s 

clemency submission. We find Appellant is so entitled and thus order new 

post-trial processing. 

I. BACKGROUND

In January 2015, Appellant smoked marijuana. In February 2015, he 

bought what he thought was LSD and offered it to an Airman. Appellant also 

asked another Airman about obtaining illegal drugs and then agreed to obtain MDMA and cocaine for two other people. In March 2015, Appellant ingested what he believed to be LSD and, on a separate occasion, snorted and 

smoked cocaine. Appellant was tried, convicted, and sentenced in June 2016. 

The SJAR correctly advised the special court-martial convening authority 

(SPCMCA) that the SPCMCA could not affect the adjudged bad-conduct discharge and that the SPCMCA could “disapprove, commute or suspend in 

whole or in part the reduction in rank and forfeiture of pay and confinement.” 

The SJA recommended approving the adjudged sentence.

Appellant’s clemency submission alleged error regarding the report of result of trial attached to the SJAR and a decision by the military judge to exclude testimony concerning the conditions of post-trial confinement. When 

discussing the latter, Appellant’s trial defense counsel wrote, 

Due to changes in the law you no longer have the ability to disapprove confinement (which has been served anyway), but you 

do still have the power to disapprove the reduction in rank and 

the forfeitures imposed by the panel. Doing this will recognize 

that AB Zegarrundo was confined in conditions not authorized 
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by the Air Force, and also give him a better financial footing as 

he transitions to civilian life . . . .

The addendum to the SJAR addressed the two allegations of error; corrected the report of result of trial; and recommended granting clemency by 

disapproving the adjudged forfeiture of pay. The addendum neither mentioned the clemency submission’s incorrect assertion that the SPCMCA could 

not disapprove the adjudged confinement nor repeated the SJAR’s correct 

statement that the SPCMCA could disapprove, commute, or suspend the confinement. 

After Appellant waived his right to submit additional matters for the 

SPCMCA’s consideration, the SJA completed an additional addendum, which 

repeated the addendum’s recommendation that the SPCMCA approve only 

the bad-conduct discharge, confinement for 30 days, and reduction to E-1. 

The SPCMCA approved the sentence as recommended in both addenda. 

II. DISCUSSION

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

court reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)

(citing United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to 

comment in a timely manner on matters in the SJAR or matters attached to 

the SJAR waives in the absence of plain error, or forfeits, any later claim of 

error. Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60 

M.J. 435, 436 (C.A.A.F. 2005). Analyzing for plain error, we assess whether 

“(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. 

at 65). “To meet this burden in the context of a post-trial recommendation 

error . . . an 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 (alteration in original). 

We find plain error in the failure of the addendum to the SJAR to correct 

the clemency submission’s erroneous statement that “Due to changes in the 

law you no longer have the ability to disapprove confinement.” Contrary to 

trial defense counsel’s assertion, the change in the law, specifically, Article 

60, UCMJ, 10 U.S.C. § 860, limits a convening authority’s ability to affect 

confinement of more than six months. Appellant’s adjudged sentence included 

confinement for 30 days. The SJAR correctly informed the SPCMCA that he 

could “disapprove, commute or suspend in whole or in part” the adjudged 30-

day confinement. Trial defense counsel followed with an incorrect statement 

of the law—that the SPCMCA could not disapprove the confinement—and 
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requested instead that the SPCMCA disapprove the reduction to E-1 and forfeiture of pay. In accordance with the CAAF’s disposition in Addison, the SJA 

was then obligated to correct the Defense’s error in the addendum; the SJA 

did not do so. See Addison, 75 M.J. at 405. The SJA also did not give the Defense the opportunity to correct the error. See, e.g., United States v. Olson, 

No. ACM 39093, 2017 CCA LEXIS 791, at *11 (A.F. Ct. Crim. App. 22 Dec. 

2017) (unpub. op.) (“the SJA rendered the courtesy of permitting the Defense 

to correct its own error”); United States v. Harrington, No. ACM 39112, 2017 

CCA LEXIS 748, at *10 (A.F. Ct. Crim. App. 6 Dec. 2017) (unpub. op.) (“trial 

defense counsel was alerted to the misstatement and submitted a corrected 

memorandum”). 

As we noted in United States v. Moore, No. ACM S32423, 2017 CCA LEXIS 763, at *11 (A.F. Ct. Crim. App. 19 Dec. 2017) (unpub. op.), an addendum’s 

correction of an error in the clemency submission would likely constitute a 

new matter and prompt notice and opportunity for the Defense to respond. 

R.C.M. 1106(f)(7). The problem is avoided altogether when trial defense counsel does not make an incorrect statement of the law concerning the convening 

authority’s clemency options. A correct statement of the law in a clemency 

submission also evidences trial defense counsel’s understanding of Article 60, 

UCMJ, and thus competency to advise clients during post-trial processing. 

The combination of trial defense counsel’s erroneous statement that the 

SPCMCA could not disapprove confinement; the corresponding clemency request for disapproval of the reduction in rank and forfeiture of pay instead of 

confinement; and the SJA’s failure to correct the Defense’s erroneous statement resulted in plain error and constitutes a colorable showing of possible 

prejudice to Appellant in light of Addison.

III. CONCLUSION

The action of the convening authority is set aside. The record of trial is returned to The Judge Advocate General for remand to the convening authority 

for new post-trial processing and conflict-free trial defense counsel consistent 

with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, the 

record of trial will be returned to this court for completion of appellate review 

under Article 66, UCMJ. 

FOR THE COURT

KATHLEEN M. POTTER

Acting Clerk of the Court