UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39751

________________________

UNITED STATES

Appellee

v.

Zakery J. SCHRAM

Airman Basic (E-1), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 4 December 2020

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Military Judge: Mark F. Rosenow.

Approved sentence: Dishonorable discharge, confinement for 8 years, 

and forfeiture of all pay and allowances. Sentence adjudged 30 March

2019 by GCM convened at Davis-Monthan Air Force Base, Arizona.

For Appellant: Major Benjamin H. DeYoung, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant 

Colonel Matthew J. Neil, USAF; Major Jessica L. Delaney, USAF; Captain Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military 

Judges.

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

Judge POSCH and Judge MEGINLEY joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

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United States v. Schram, No. ACM 39751

2

RICHARDSON, Judge:

The case before us is Appellant’s second court-martial.1 A general courtmartial composed of officer members found Appellant guilty, contrary to his 

pleas, of one specification each of aggravated sexual assault of a child (ML) on 

divers occasions, aggravated sexual assault of ML, aggravated sexual abuse of

a child (ML) on divers occasions, and sexual assault of NM on divers occasions, 

in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 920 (Charge I); and three specifications of assault consummated by a battery 

of NM, one of which was on divers occasions, in violation of Article 128, UCMJ, 

10 U.S.C. § 928 (Charge II).2,3 Appellant was sentenced to a dishonorable discharge, confinement for eight years, and forfeiture of all pay and allowances. 

The convening authority approved the sentence as adjudged.

Appellant raises four issues on appeal: (1) whether the evidence is legally 

and factually sufficient to support the convictions for offenses against NM; (2) 

whether the military judge erred when he did not recuse himself from presiding over Appellant’s court-martial; (3) whether the staff judge advocate’s recommendation (SJAR) to the convening authority and addendum properly advised the convening authority of the correct clemency options; and (4) whether 

the military judge erred in denying the defense motion to exclude the testimony 

of ML, or dismiss the specifications relating to her in Charge I, because she 

testified as a witness under Mil. R. Evid. 413 or 414 at Appellant’s prior courtmartial.4 We have carefully considered issue (4), which Appellant personally 

raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and 

find it does not require further discussion or warrant relief. See United States 

 

1 In his previous court-martial, this court affirmed the findings and sentence to a dishonorable discharge, confinement for five years, total forfeitures, and reduction to E1. See United States v. Schram, No. ACM 38954, 2017 CCA LEXIS 350 (A.F. Ct. Crim. 

App. 22 May 2017) (unpub. op.), rev. denied, 2017 CCA LEXIS 862 (C.A.A.F. 5 Sep. 

2017).

2 All references in this opinion are to the Manual for Courts-Martial, United States

(2016 ed.), including Appendix 28, as applicable.

3 Appellant was acquitted of one specification of aggravated sexual contact with a child 

(ML), and three specifications (Specifications 1, 2, and 5) of assault consummated by a 

battery (NM).

4 ML was not a named victim in Appellant’s previous court-martial, but testified at 

Appellant’s prior court-martial to the conduct that is charged in the court-martial now 

before this court. ML was 15 years old at the time of the alleged offenses against her 

and 18 years old at the time of Appellant’s previous court-martial.
United States v. Schram, No. ACM 39751

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v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Finding no error that materially 

prejudiced Appellant’s substantial rights, we affirm the findings and sentence.

I. BACKGROUND

Appellant and then-Airman First Class NM met around July 2014 through 

their duties in the aircraft maintenance squadron at Davis-Monthan Air Force 

Base, Arizona. They spent off-duty time together at Appellant’s apartment and 

carpooled to work in her vehicle. Appellant began calling NM his girlfriend and 

NM “was fine with him at that time, so [she] didn’t disagree.” They went on 

one “date,” to a restaurant. While they were planning to travel to Texas to attend NM’s sister’s graduation from basic training, NM’s family said they could 

not share a room unless they were married. Appellant asked NM, “You want 

to get married then?” to which she replied, “Okay.” They married at the local 

county courthouse in September 2014. In November 2014, they moved from his 

apartment to a house. 

When Appellant and NM met, Appellant was under investigation for 

charges which were the subject of Appellant’s previous court-martial. NM attended Appellant’s trial in June 2015, after which he was convicted and imprisoned. She signed a letter for Appellant to provide to the convening authority requesting clemency. She visited Appellant while he was confined locally, 

and wrote him intimate letters. NM stated she did these things because she 

knew Appellant wanted her to, she did not want to anger him, and she wanted 

him to feel better.

NM was deployed the first half of 2016, and in October 2016 filed for divorce 

from Appellant. NM’s divorce from Appellant was final in May 2017. Five days 

later NM reported the allegations before this court against Appellant to Air 

Force Office of Special Investigations agents. By the time of Appellant’s second 

court-martial, NM was married to an Airman whom she met at work in July 

2015 and had started dating sometime after Appellant’s first court-martial.

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant challenges the legal and factual sufficiency of the findings of 

guilt with respect to NM. The focus of Appellant’s assignment of error is NM’s

credibility. Appellant claims NM was not a credible witness for the following 

reasons: (1) she failed to report, and she specifically denied, any alleged wrongdoing previously; (2) she continued to support Appellant during his court-martial and some period of his confinement; (3) she had a religious motive to lie; 

(4) she had a romantic motive to lie; and (5) her “story was wildly inconsistent 

over time” and “suspiciously similar” to a victim in Appellant’s previous court-
United States v. Schram, No. ACM 39751

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martial, raising reasonable doubt. We are not persuaded by Appellant’s claims

and conclude the convictions are legally and factually sufficient.

1. Additional Background

At trial, NM described Appellant as “a very jealous person” and “very controlling.” For example, Appellant would not “allow” NM to wear perfume or 

talk to men at work, or wear more revealing shorts or shirts outside the home. 

He timed her trips home from work, and would question her if the commute 

took her a minute longer than he expected. If she wore lacy underwear to work, 

he would get angry and accuse her of wearing them for someone else. Once, he 

demanded to smell her underwear to “see if [she] had been cheating on him.” 

On her phone and social-media accounts, he either would not allow her to have, 

or demanded to know, the password. He usually would monitor her phone calls, 

sometimes making her use the speakerphone. He got angry when her car was 

parked next to someone he disliked, and when her relationship with her sister 

was too close. Appellant regularly called NM derogatory names and laid blame 

on her for his shortcomings, telling NM “if [she] was a better wife, he would be 

a better husband.” He sometimes angrily confronted NM at her workplace, 

usually when her lunch break was delayed or she had to work late. He required 

her to awaken before him, around 0300−0400, to make coffee and “start the 

coals,” then wake him up so “they would be ready for him to just get on his 

[computer or video] game and start smoking his hookah.”

NM described the effect of Appellant’s behavior on her. She felt she couldn’t 

do anything or go anywhere without his approval. She “would just go along 

with whatever he wanted” and “[i]t almost seemed like he wanted to live [her] 

life for [her].”

NM described several instances of Appellant’s violence towards her during 

arguments in their home, including those for which Appellant was convicted. 

At one point, Appellant slapped NM with an open hand (Specification 3 of 

Charge II). She had tried to dodge the blow, which struck her on the eye, causing a bruise. On another occasion, Appellant pushed her onto the couch and 

told her she could not get up. When she tried to get up, he pushed her back 

down. NM said something that angered Appellant greatly, and he “got up and 

he started beating down on [NM’s] head with both of his closed fists” (Specification 4 of Charge II). She saw “stars,” and the next day had nausea, soreness, 

and a headache. Another time, while NM sat on their bed, “something [NM] 

had said caused him to lift his right foot and kick” NM, causing an open wound 

on her big toe (Specification 6 of Charge II). 

NM also described occasions when Appellant sexually assaulted her by penetrating her anus. On the eve of her twenty-first birthday, Appellant and NM 

went for a walk near their home. Appellant wanted to have sex outside, and 
United States v. Schram, No. ACM 39751

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NM reluctantly agreed. They engaged in vaginal sex, then Appellant pushed 

his penis inside NM’s anus. She protested physically and verbally. Appellant 

got angry with NM and finally stopped penetrating her. He threw across the 

street a glass special to NM that she had been carrying. She retrieved the glass, 

which hadn’t broken. Appellant convinced her to give it to him, denying he was 

going to throw it. When she gave it to him, he threw it and it shattered. NM 

then ran away down the road as he chased her, convinced he was trying to hit 

her. 

NM testified Appellant had anal sex with her multiple times against her 

wishes. She recalled that it happened more than once in the shower: 

I remember that, um, he was behind me and he wanted anal sex, 

and he would hold me and just hold me there until he pushed 

himself inside of me. And at this time I remember I was crying, 

and I remember that it hurt, and he kept going until he finished.

And once he finished he got out of the shower, and I was in so 

much pain that I could not move. 

Whenever NM was asked about the causes of her injuries, or whether she 

felt safe at home, she lied. When she went to the hospital for a possible concussion, she “made up a story.” Because she falsely said she had been drinking 

and must have blacked out when she fell and hit her head, she was required to 

go to a local alcohol-treatment program. When she sought medical treatment 

for her big toe, she said she stubbed her toe. She did not tell the truth “because 

[she] knew that if [she] had told them that [Appellant] would most likely hurt 

[her] more.” 

NM did not report Appellant’s behavior to her family, friends, coworkers, 

law enforcement, or medical personnel. She explained Appellant “monitored 

everything [she] did.” When anyone asked, she affirmatively denied any abuse 

at home.

NM had several reasons for staying in the relationship with Appellant. She 

loved him. She was taught through her Christian faith that divorce was a last 

resort. She believed Appellant when he told her she would never find someone 

as good as him. She believed Appellant when he said he would not hurt her 

again.

The Government offered testimony and documentary evidence to support 

NM’s testimony. When they were apart, Appellant and NM communicated 

with each other using Facebook Messenger. In messages between them, NM 

told Appellant in a sarcastic tone that she was leaving work and going to the 

hospital for a concussion, to which Appellant replied, “Awesome, is that why 

the [S]hirt wants to talk to me?” 
United States v. Schram, No. ACM 39751

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In their testimony, the medical providers that NM saw for her head and 

neck pain and her lacerated toe confirmed NM’s complaint of injury, as well as 

her “story” about what caused the injuries. They also agreed NM’s injuries 

were consistent with her allegations against Appellant. One provider believed 

the head and neck pain was not consistent with a fall because she would expect 

to see additional injuries. The Government introduced some evidence Appellant may have been in the room when NM talked to the provider about her 

head injury. The Government introduced the photo NM took of her lacerated 

big toe and sent to her sister. 

Some of NM’s coworkers saw Appellant’s controlling behavior in her workplace and bruising to her upper arm. They noticed she started wearing her 

uniform blouse in the hangar, even in the height of summer in Arizona, and 

she stopped interacting with her male coworkers. In 2016, after her deployment, NM told her friend over the phone briefly that she “was forced to have 

anal” with Appellant. In April 2017, around NM’s birthday, NM took a walk 

with her sister around the neighborhood. NM emotionally pointed out things 

related to the “incident,” including where her favorite glass broke. 

Appellant and NM messaged each other after the sexual assault near the 

home. NM reminded Appellant “it hurt” even as she “was saying wait[.]” Later 

in this conversation, NM accused Appellant of going to see “[m]aybe someone 

who likes it up the a[*]s" and further messaged, “You’ll be so much happier 

then. My p[**]sy isn’t good enough for you.”5 Appellant responded, “Lmmfao[6]

keep goin[g].”

The messages also corroborate NM’s characterization of Appellant being 

very controlling of her. Topics include, inter alia, her manner of dress and underwear, speaking to men, waking up early to prepare his coffee and hookah, 

and accusing her of being a horrible wife. They also show Appellant monitoring 

NM’s conversations, replying with profanity (e.g., “f[**]k [yo]u”), and calling 

her derogatory names. 

 

5 The military judge instructed the members they could consider these statements of 

NM only for the purpose of providing context for Appellant’s responses, or lack thereof, 

and to put the entire conversation into context, but not for the truth thereof.

6 Testimony indicates this refers to laughing. 
United States v. Schram, No. ACM 39751

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2. Evidence Admitted Pursuant to Mil. R. Evid. 413 and 404(b)7

The Government introduced Appellant’s previous convictions for violations 

of Articles 120, 120b, and 128, UCMJ, 10 U.S.C. §§ 920, 920b, and 928. Specifically, the evidence showed Appellant was found guilty of divers sexual assaults against EB (both penile/vaginal and penile/anal), and abusive sexual 

contact of RM (touching her buttocks); sexual abuse of HS, a child (placing her 

hand on his penis through the clothing); and assaults consummated by a battery against MZ (striking her head, choking her neck, pushing her body, and 

grabbing her arms, all on divers occasions). 

The members heard testimony of one of these victims, EB, admitted pursuant to Mil R. Evid. 413. She testified about her relationship with Appellant, 

whom she described as “really controlling.” Appellant texted her “all the time,” 

controlled what she wore and who she talked to, insisted on knowing her passwords, and called her derogatory names. EB described occasions on which Appellant grabbed and pushed her, and sexually assaulted her vaginally and 

anally, including in the shower. EB stayed with Appellant for two years because she “loved him, and [she] didn’t think that [she] would have anything 

else after [she] left him” and she “tried to fix what was wrong with [her], or 

what she thought was wrong with [her], because [she] loved him and [she] 

thought he loved [her] too.” 

The military judge provided the members instructions on evidence and testimony admitted pursuant to Mil. R. Evid. 413 and 404(b). Regarding Appellant’s sexual offenses against EB, HS, and RM, the military judge instructed 

the members they could consider this evidence and testimony “for their tendency, if any, to show [Appellant’s] propensity to engage in acts alleged in 

Charge I and its specifications.”8 Regarding other misconduct, the military 

judge instructed the members they could consider evidence of Appellant’s physical or emotional abuse of NM, ML,9 EB, and MZ for the limited purpose of 

explaining Appellant’s intent and motive, if any, to dominate and control 

 

7 Appellant unsuccessfully moved to exclude evidence under Mil. R. Evid. 404(b) and 

413. On appeal, Appellant does not challenge the military judge’s ruling and we find 

no basis in the record to do so ourselves.

8 He added that they could consider this evidence “for the limited purpose of explaining 

[Appellant’s] intent and motive, if any, to dominate and control women within dating 

and intimate relationships” and to determine Appellant’s “intent and motive, if any, to 

commit any of the charged offenses in this court-martial.”

9 ML testified to Appellant’s controlling behaviors as well as the substance of the sexual offenses against her alleged under Charge I.
United States v. Schram, No. ACM 39751

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women within dating and intimate relationships, and they could consider this 

evidence in determining Appellant’s intent and motive, if any, to commit the 

charged offenses.10 He warned them they could not consider this evidence for 

any other purpose, “unless identified separately by the Court,” nor conclude 

from it that Appellant is a bad person or has general criminal tendencies and 

therefore committed the offenses charged.

3. Law

We review issues of legal and factual sufficiency de novo. Article 66(c), 

UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 

(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 

M.J. 270, 272 (C.M.A. 1993) (citations omitted). 

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States 

v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, however, does not mean that the evidence must be free from conflict.” United States 

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. 

Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018). 

“[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” 

United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).

As a result, “[t]he standard for legal sufficiency involves a very low threshold 

to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) 

(alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct. 

1641 (2019).

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a 

reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In 

conducting this unique appellate role, we take ‘a fresh, impartial look at the 

evidence,’ applying ‘neither a presumption of innocence nor a presumption of 

guilt’ to ‘make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.’” 

 

10 The military judge also instructed the members they could consider evidence of physical and emotional abuse of the named victims “for its bearing, if any, on her decisions 

regarding reporting the charged offenses and to rebut any charge that she recently 

fabricated her allegations or has testified from a recent improper influence or motive.”
United States v. Schram, No. ACM 39751

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Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J. 

at 399).

For Appellant to be found guilty of sexual assault of NM in violation of 

Article 120, UCMJ, as charged in Specification 5 of Charge I, the Government

was required to prove beyond a reasonable doubt that on divers occasions Appellant committed a sexual act upon NM by causing bodily harm to her, specifically penetrating her anus with his penis, without her consent.11 See Manual 

for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 45.a.(b)(1). For 

Appellant to be found guilty of assault consummated by a battery of NM in 

violation of Article 128, UCMJ, as charged in Specifications 3, 4, and 6 of 

Charge II, the Government was required to prove beyond a reasonable doubt 

that Appellant did bodily harm to NM with unlawful force or violence. See 

MCM, pt. IV, ¶ 54.b.(2). Specifically, the Government alleged that Appellant 

struck NM on the face with his hand (Specification 3); struck NM on the head 

with his hand on divers occasions (Specification 4); and kicked NM on the toe 

with his foot (Specification 6).

4. Analysis

Appellant questions the legal and factual sufficiency of Specification 5 of 

Charge I and Specifications 3, 4, and 6 of Charge II based solely on the credibility of NM. Appellant’s attacks on NM’s credibility are not new; he raised 

them at trial. We are convinced any rational trier of fact could have found the 

essential elements of the crimes against NM of which Appellant was convicted 

beyond a reasonable doubt. 

The Government proved Appellant abused NM by striking her head multiple times, striking her face, kicking her toe, and anally penetrating her on at 

least two occasions. The Government proved these offenses primarily with 

NM’s testimony, supported by medical testimony and records, as well as evidence of other misconduct to explain Appellant’s intent and motive to dominate 

and control women within dating and intimate relationships. The best explanation for NM’s failure to report, denial of harm, and supporting Appellant 

through trial and post-trial is Appellant’s control over her. Even when he was 

confined, she acted in accordance with what she believed were his wishes. With 

time and separation, that control dissipated. 

 

11 By specifically alleging the conduct was without consent, the Government was required to prove lack of consent in order for Appellant to be convicted. We note that to 

prove “bodily harm,” the Government was required to prove an offensive touching, 

which could include nonconsensual sexual contact. See MCM, pt IV, ¶ 45.a.(g)(3).
United States v. Schram, No. ACM 39751

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We are unconvinced NM’s religious or romantic views provided a motive for 

her to fabricate Appellant’s violence towards her. The evidence does not support Appellant’s claims that NM’s family would only approve of a divorce if NM 

reported to law enforcement officials that Appellant sexually and physically 

assaulted her. If NM needed an excuse to divorce Appellant, she could point to 

his prolonged incarceration for sexual and physical offenses against a girl and 

two young women. Similarly, it would be speculative to find that NM fabricated 

Appellant’s violence to somehow advance her relationship with her then boyfriend. 

NM’s story was not “wildly inconsistent over time” as claimed. While she 

lied during her marriage to Appellant about harm she suffered, she stayed consistent in her later description of that harm. Finally, one easily could find that 

the similarity between NM’s testimony and any previous victim’s testimony is 

not because NM observed the previous victim testify four years earlier, but 

because the women were abused by the same person in a similar way. We have 

no reason to doubt the members followed the military judge’s instructions

about the allowable uses of other misconduct and propensity evidence. See

United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012).

Considering the evidence in the light most favorable to the Prosecution, we 

find that a rational factfinder could have found Appellant guilty beyond a reasonable doubt of all the elements of Specification 5 of Charge I and Specifications 3, 4 and 6 of Charge II. Furthermore, after weighing all the evidence in 

the record of trial and having made allowances for not having personally observed the witnesses, we are convinced of Appellant’s guilt beyond a reasonable 

doubt. Therefore, we find Appellant’s convictions both legally and factually sufficient.

B. Challenge of the Military Judge 

1. Additional Background

The military judge served as a senior trial counsel and as the Special Victims Unit Chief of Policy and Coordination from 2014 to 2016, in the two years 

leading up to his assignment as a military judge. In that capacity, then Major 

(Maj) Rosenow12 was involved in drafting template responses for the government on new legal issues, including challenges based on changes to preliminary hearings under Article 32, UCMJ, 10 U.S.C. § 832. 

The military judge was detailed to Appellant’s court-martial on 8 November 2018. The next day, the military judge conducted a telephonic scheduling 

 

12 In this opinion, we use “Maj Rosenow” when referring to the military judge when he 

was a senior trial counsel. 
United States v. Schram, No. ACM 39751

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conference with counsel under Rule for Courts-Martial (R.C.M.) 802. Trial defense counsel provided notice that Appellant would elect to be tried by officer 

members. The military judge “alerted the parties to his brief and limited involvement in the processing of [Appellant’s] previous court-martial” relevant 

to whether he was disqualified. He had “no concerns about [his] ability to serve 

as the detailed military judge.” 

In the hearing leading to arraignment, trial defense counsel orally moved 

for the military judge to recuse himself. After the military judge stated he was 

aware of no grounds for challenge against him, he allowed counsel to question

him. Trial defense counsel elicited that trial counsel in the previous court-martial—who was the same trial counsel in the present court-martial—requested 

a template response to an issue related to Appellant’s Article 32, UCMJ, hearing. Also, a different prosecutor—whom Maj Rosenow knew when they were 

defense counsel—reached out to him for a template on a different Article 32, 

UCMJ, issue in that case. Maj Rosenow provided this prosecutor a template 

response. 

The military judge reviewed this court’s decision in Appellant’s previous 

court-martial when it was released, as was his practice, and after he was detailed to Appellant’s present court-martial as military judge. He read it again 

the morning of the motion hearing “and it jogged nothing other than what [he] 

remember[ed] from reading the appellate decision the last time.” 

The military judge had looked through his files and found no indication of 

involvement beyond providing those template responses. He stated he did not 

discuss the merits of Appellant’s previous court-martial with those prosecutors 

or provide tailored advice. He was not involved in charging. He did not supervise senior trial counsel or review their case reports. Even if he had more involvement in Appellant’s case than he could remember at the time, “in terms 

of independent recollection of Airman Schram, [he had] no recollection at all.” 

After answering all of trial defense counsel’s questions, the military judge 

stated, “If it wasn’t clearly implicated on the record before, my going-in position, certainly, is that under [R.C.M.] 902 I have no concerns about my ability 

to serve as an impartial military judge in this case. And I don’t believe that my 

impartiality can be reasonably questioned.” He then allowed the Defense to 

make an oral argument and gave them time to put a motion for recusal in writing. After receiving and considering those, the military judge denied Defense’s

motion. In his oral ruling, he stated, “I don’t have any concerns about any impartiality or bias towards or against any party, any knowledge of the case, or 

anything that would be disqualifying under [R.C.M. 902’s] subsections. I also 

don’t believe a member of the public fully informed could reasonably challenge 

my impartiality in this case.” The military judge also issued a detailed written 

ruling denying the defense motion. 
United States v. Schram, No. ACM 39751

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2. Law

We review a military judge’s decision not to recuse himself for an abuse of 

discretion. See United States v. Sullivan, 74 M.J. 448, 454 (C.A.A.F. 2015). “A 

military judge’s ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous;” the standard is not merely if 

we have a difference of opinion or would reach a different conclusion. Id. at 453 

(citing United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)) (internal quotations marks omitted).

R.C.M. 902 governs disqualification of the military judge. R.C.M. 902(a) 

requires disqualification “in any proceeding in which th[e] military judge’s impartiality might reasonably be questioned.” Disqualification pursuant to 

R.C.M. 902(a) is determined by applying an objective standard of “whether a 

reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned.” Sullivan, 74 M.J. 

at 453 (citing United States v. Hasan, 71 M.J. 416, 418 (C.A.A.F. 2012)). In 

addition, R.C.M. 902(b) sets forth five specific circumstances in which a “military judge shall disqualify himself or herself,” including when “the military 

judge has acted as counsel, preliminary hearing officer, investigating officer, 

legal officer, staff judge advocate, or convening authority as to any offense 

charged or in the same case generally.” R.C.M. 902(b)(2).

“An accused has a constitutional right to an impartial judge.” United States 

v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999) (citations omitted). “There is a 

strong presumption that a judge is impartial, and a party seeking to demonstrate bias must overcome a high hurdle. . . .” United States v. Quintanilla, 56 

M.J. 37, 44 (C.A.A.F. 2001) (citation omitted). A military judge “should not 

leave a given case ‘unnecessarily.’” Wright, 52 M.J. at 141 (quoting R.C.M. 

902(d)(1), Discussion). That is, a “judge has as much obligation not to disqualify himself when there is no reason to do so as he does to disqualify himself 

when the converse is true.” United States v. Kincheloe, 14 M.J. 40, 50 n.14 

(C.M.A. 1982) (alterations, internal quotations, and citations omitted).

“Where the military judge makes full disclosure on the record and affirmatively disclaims any impact on him, where the defense has full opportunity to 

voir dire the military judge and to present evidence on the question, and where 

such record demonstrates that [an] appellant obviously was not prejudiced by 

the military judge’s not recusing himself, the concerns of R.C.M. 902(a) are 

fully met.” United States v. Campos, 42 M.J. 253, 262 (C.A.A.F. 1995) (citation 

omitted).

3. Analysis

At the outset, we note the record does not show the military judge acted as 

counsel, preliminary hearing officer, investigating officer, legal officer, staff 
United States v. Schram, No. ACM 39751

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judge advocate, or convening authority as to any offense charged or in Appellant’s case generally, which would be disqualifying under R.C.M. 902(b)(2).

On appeal, Appellant claims a “reasonable man, knowing that the military 

judge in the present case was involved in helping the government successfully 

prosecute Appellant in a prior case that is so interrelated to the present case, 

might reasonably question the judge’s impartiality.” Additionally, he highlights that a prosecutor to whom Maj Rosenow sent a template was also a prosecutor in Appellant’s second court-martial, and some of the victim-witnesses 

are the same. Appellant states his “forum choice to not appear before Judge 

[Rosenow] reflects that he was not unaffected by the appearance of partiality 

in this case.” 

We find the military judge did not abuse his discretion in denying the defense motion to disqualify him from presiding over Appellant’s court-martial.

First, we disagree with Appellant that the military judge “was intimately involved in Appellant’s first court-martial, and that he took a position in clear 

contravention to Appellant’s interests involving an important and contested 

trial matter” and “provided tactical level guidance.” Maj Rosenow provided to 

prosecutors template responses based on the emergence of new legal issues and 

with no knowledge of any specific facts of Appellant’s case. He knew nothing 

about the charging scheme, the victims, or the witnesses. We see no evidence 

the military judge knew the content of the filings in Appellant’s first courtmartial, the strategy the prosecutors chose, or whether they were successful. 

He reviewed this court’s decision on appeal, as many other military justice 

practitioners do, and had no recollection of any personal involvement in the 

case. 

We also disagree with Appellant’s assertion on appeal that “the role [the 

military judge] played in Appellant’s previous case undoubtedly factored into 

his decision to be tried by officer members, rather than [the military judge].” 

We note that at the same conference in which the military judge disclosed his 

limited participation relating to Appellant’s first court-martial, Appellant provided notice of his intent to be tried by officer members. This timing strongly 

suggests Appellant did not factor in the military judge’s involvement in Appellant’s previous case and instead had different reasons for choosing to be tried 

by a panel of officers. Moreover, Appellant gave no indication that his forum 

choice would change if his motion for the military judge to disqualify himself 

was successful. See United States v. Oakley, 33 M.J. 27, 34 (C.A.A.F. 1991) 

(finding no basis to conclude appellant did not get a fair trial based on forum 

choice when appellant’s request for members had been signed before the military judge denied his recusal motion, and he gave no affirmative indication 

that he would have changed his request if his motion had been granted).
United States v. Schram, No. ACM 39751

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Finally, we find the concerns of R.C.M. 902(a) were fully met. See Campos, 

42 M.J. at 262. The military judge gave full disclosure of his previous involvement with Appellant’s previous court-martial, and provided a full opportunity 

for counsel to question or “voir dire” him and to present evidence and argument 

on the motion. Moreover, we see no indication in the record that Appellant was 

prejudiced by the military judge’s failure to disqualify himself. See id.

Based on the foregoing, we find Appellant has not overcome the high hurdle 

to demonstrate bias on the part of the military judge. We are satisfied that a 

reasonable person knowing all the circumstances in this case would not question the military judge’s impartiality.

C. Erroneous Advice to the Convening Authority

Appellant requests this court direct new post-trial processing or, in the alternative, reduce Appellant’s period of confinement due to errors in the SJAR 

and addendum thereto provided to the convening authority. We are not persuaded.

1. Additional Facts

The military judge sua sponte merged Specifications 1 and 2 of Charge I for 

purposes of sentencing. He instructed the members that in determining an appropriate sentence, they must consider them as one offense. He correspondingly advised them that the maximum punishment to confinement was 81 

years and 6 months. Before the merger, the maximum imposable confinement

was 101 years and 6 months.

Appellant was convicted of offenses committed as early as October 2011 

and as recent as June 2015. During that period, Congress changed the law 

governing what relief a convening authority could grant an appellant in clemency. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 

113–66, § 1702, 127 Stat. 954–58 (2013) (codified at 10 U.S.C. § 860(c)(4)(A)). 

For offenses before 24 June 2014, convening authorities had unfettered discretion to grant clemency, including setting aside a finding of guilt. For offenses

on or after 24 June 2014, convening authority discretion was limited to a prescribed set of circumstances. Because the specifications for which Appellant 

was convicted included dates both before and after 24 June 2014, Appellant 

was entitled to the convening authority’s unfettered discretion in clemency for

all convicted offenses. See National Defense Authorization Act for Fiscal Year 

2015, Pub. L. No. 113–291, § 531(g)(2)(A), 128 Stat. 3292, 3365–66 (2014); see

also United States v. Rogers, 76 M.J. 621, 626 (A.F. Ct. Crim. App. 2017) (“We 

will not conduct a post-trial dive below the charged dates to attempt to determine with certitude when an offense occurred for Article 60, UCMJ, purposes.”).
United States v. Schram, No. ACM 39751

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Despite the fact that one of the specifications Appellant was charged with 

committing included an offense before 24 June 2014, the acting staff judge advocate erroneously advised the convening authority in the SJAR that he had 

“the authority to approve or disapprove the finding of guilt for Charge I and all 

Specifications except Specification 5” and “[f]or Charge II and its Specifications, 

[he] only [had] the authority to approve the finding of guilt and cannot dismiss 

the finding of guilt.” (Emphasis added). Regarding sentence, the SJAR correctly advised the convening authority he had “the authority to disapprove, 

commute or suspend the adjudged sentence.”

In the Defense’s clemency submission, trial defense counsel did not correct 

the error in the SJAR regarding the power of the convening authority to affect 

the findings. Although trial defense counsel alleged errors at trial, the only 

relief he requested from the convening authority was reduction or disapproval 

of Appellant’s sentence to confinement. In the addendum to the SJAR, the staff 

judge advocate did not correct the erroneous advice in the SJAR regarding the 

convening authority’s power to affect the findings, but then provided incorrect 

advice about the power he did have to affect Appellant’s sentence. The SJAR

misadvised that “[u]nder R.C.M. 1107(d)(1)(B), a convening authority may not 

disapprove, commute, or suspend, in whole or in part, that portion of an adjudged sentence that includes confinement for more than six months or a dishonorable discharge” and that “[i]n this case, no exceptions to this rule exist.” 

The convening authority approved Appellant’s sentence as adjudged. 

Following Appellant’s assignment of error, we granted the Government’s

motion for leave to attach to its motion the convening authority’s declaration 

regarding the effect of the erroneous advice he received from his acting staff 

judge advocate in the SJAR and from the staff judge advocate in the addendum.13 In it, the convening authority stated his “action in this case would not 

have been impacted had [he] received [accurate] advice at the time of clemency.” He “considered all of the matters in clemency” at the time he took action, 

and while he recognized Appellant’s mitigating evidence, “his offenses were 

repeated and severe.” He concluded, “Considering the entirety of the record, I 

am confident that I still would have approved the findings and sentence as 

adjudged by the court-martial.” 

2. Law and Analysis 

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

reviews de novo.” United States v. Zegarrundo, 77 M.J. 612, 613 (A.F. Ct. Crim. 

 

13 We consider the convening authority’s declaration as necessary to resolve errors 

“raised by the record but [ ] not fully resolvable by the materials in the record,” namely 

the contradictory advice to the convening authority. United States v. Jessie, 79 M.J. 

437, 442 (C.A.A.F. 2020).
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App. 2018) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure 

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

the SJAR waives or forfeits any later claim of error unless there was plain 

error. Id. at 614; R.C.M. 1106(f)(6). In 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.” Kho, 54 M.J. at 65 (citations omitted). In terms of how an SJAR error potentially affected an appellant’s opportunity for clemency, the threshold for prejudice is low: there must be a colorable showing of possible prejudice. United States v. Scalo, 60 M.J. 435, 437 

(C.A.A.F. 2005). This low threshold “reflects the convening authority’s vast 

power in granting clemency and is designed to avoid undue speculation as to 

how certain information might impact the convening authority’s exercise of 

such broad discretion.” Id. 

As the Government concedes the errors in the SJAR and addendum, our 

analysis focuses solely on whether Appellant suffered prejudice. To be sure, 

conflicting guidance from the staff judge advocate about the power the convening authority had to affect the findings and sentence should have generated 

confusion. If the convening authority was confused about his ability to affect 

the findings, we note Appellant did not request any findings be disapproved in 

clemency. We find no colorable showing that the convening authority nevertheless may have done so if he had been accurately advised. Appellant did request the convening authority reduce or completely disapprove the sentence to 

confinement. Without more, the conflicting guidance to the convening authority might meet the low threshold for prejudice.

Whether an appellant was prejudiced by a mistake in the SJAR or the addendum generally requires a court to consider whether the convening authority would have taken action more beneficial to the appellant had he or she been 

provided accurate or more complete information. See United States v. Green, 

44 M.J. 93, 95 (C.A.A.F. 1996); see also United States v. Harris, 52 M.J. 665, 

670 (A. Ct. Crim. App. 2000). However, in this case we need not speculate about 

the convening authority’s decision had he received clear and accurate advice. 

We have no cause to doubt the convening authority’s declaration that he would 

have approved the findings and sentence as adjudged. Based on our review of 

the record and this declaration, we find “a properly prepared [SJAR and] addendum to the recommendation would not have resulted in beneficial action by 

the convening authority.” Harris, 52 M.J. at 670. As Appellant is unable to 

demonstrate a colorable showing of possible prejudice, we find he cannot prevail on this issue. Scalo, 60 M.J. at 436–37. 
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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 the sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court