UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 40324

________________________

UNITED STATES

Appellee

v.

Dekota M. DOUGLAS

Cadet, U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary 

Decided 5 December 2023

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Military Judge: Shad R. Kidd.

Sentence: Sentence adjudged 29 April 2022 by GCM convened at the 

United States Air Force Academy, Colorado. Sentence entered by 

military judge on 18 May 2022: Dismissal, confinement for 31 days, 

forfeiture of $1,185 pay per month for one month, and a reprimand. 

For Appellant: Major Heather M. Caine, USAF. 

For Appellee: Captain Olivia B. Hoff, USAF; Captain Tyler L. 

Washburn, USAF; Mary Ellen Payne, Esquire.

JOHNSON, CADOTTE, and MASON, Appellate Military Judges.

Judge MASON delivered the opinion of the court, in which Chief Judge 

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This is an unpublished opinion and, as such, does not serve as 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

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MASON, Judge:

A general court-martial composed of officer members convicted Appellant, 

contrary to his pleas, of two specifications of negligent dereliction of duty, in 
United States v. Douglas, No. ACM 40324

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violation of Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 892.

1,2 The members sentenced Appellant to a dismissal, confinement for 

31 days, forfeiture of $1,185 pay per month for one month, and a 

reprimand. The convening authority took no action on the findings or 

sentence.

Appellant raises three issues on appeal, which we reword: (1) whether the 

sentence is inappropriately severe; (2) whether Appellant is entitled to relief 

because he was not provided an opportunity to rebut victim matters prior to 

the convening authority’s decision on action; and (3) whether Appellant was 

entitled to a unanimous verdict. 

As to Appellant’s second issue, the Government concedes error and 

suggests that we remand the case. We agree. We find the convening authority 

erred by not providing Appellant the full five days from receipt of matters

provided by RH to submit any matters in rebuttal and that remand to the Chief 

Trial Judge, Air Force Trial Judiciary, is appropriate. 

Though not raised by the parties, review of the record of trial revealed a 

problem with Prosecution Exhibit 3. Specifically, the single CD exhibit 

contains multiple file folders purporting to be 28 video clips as discussed at 

trial. However, attempts to view these video clips were unsuccessful as the file 

folders each contained a variety of other data files and did not contain playable

video clips. Remanding the record for correction of Prosecution Exhibit 3 is also 

appropriate.

We defer addressing Appellant’s other assignments of error until the record 

is returned to this court for completion of its Article 66(d), UCMJ, 10 U.S.C. 

§ 866(d), review.

I. BACKGROUND

Appellant was sentenced on 29 April 2022. On the same day, the trial 

counsel prepared a memorandum entitled “Submission of Matters to the 

Convening Authority,” which gave Appellant a deadline by which to submit 

matters for the convening authority’s consideration. The memorandum also 

informed Appellant that the victim would have an opportunity to submit 

written matters for the convening authority’s consideration, and that if 

submitted, Appellant would be forwarded a copy of the victim’s submission so 

that Appellant could rebut it, if he chose to do so. 

1 All references in this opinion to the UCMJ and the Rules for Courts-Martial (R.C.M.) 

are to the Manual for Courts-Martial, United States (2019 ed.).

2 Appellant was acquitted of two specifications of sexual assault in violation of Article 

120, UCMJ, 10 U.S.C. § 920. 
United States v. Douglas, No. ACM 40324

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On 2 May 2022, RH, the individual to whom Appellant was convicted of 

wrongfully providing alcohol and with whom Appellant was convicted of having 

an unprofessional relationship, provided matters to the convening authority 

for consideration. Amongst other expressions, RH stated that it was “extremely 

relieving to know that [Appellant] will be dismissed from the Air Force and 

will never be allowed to serve as either an officer or enlisted member.” She 

urged the convening authority not to reduce Appellant’s confinement opining, 

“It is again very telling that the members sentenced him to more confinement 

than what was recommended by the government counsel. I view this as a 

strong rebuke of [Appellant]’s actions and serves as a more immediate 

punishment and deterrent that should be allowed to stand as-is.”

On 5 May 2022, trial defense counsel submitted a clemency request asking 

for reduction of confinement. The request included a letter from Appellant as 

well as letters of support.

On 9 May 2022, a paralegal from the servicing legal office emailed the 

matters submitted by RH to Appellant’s counsel.

On 13 May 2022, the convening authority issued his decision on action in 

Appellant’s case. He stated that he considered matters timely submitted by 

Appellant and the victim. He took no action on the findings or the sentence. 

On appeal, Appellant contends that, had he received RH’s matters and been

provided the full five days prior to the convening authority’s decision on action, 

per Rule for Courts-Martial (R.C.M.) 1106(d)(3), he would have responded to 

the victim’s submission of matters. He states that he would have: (1) argued 

that RH was not a victim and thus, consideration of her matters was improper; 

(2) asserted that RH repeatedly engaged in actions amounting to an 

unprofessional relationship and when questioned about it, that she was 

evasive and misleading; (3) asserted that RH had consumed alcohol on multiple 

occasions prior to 16 October 2020 which speaks to her ability to be coerced by 

him or impaired by alcohol; and (4) argued that RH’s in-court testimony 

contradicts her description that Appellant tricked or coerced her. 

II. DISCUSSION 

A. Law

Proper completion of post-trial processing is a question of law this court 

reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. 

App. 2004) (citing United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000)). We review 

de novo interpretations of statutes and Rules for Courts-Martial because they 

are matters of law. See United States v. Valentin-Andino, 83 M.J. 537, 541 (A.F. 

Ct. Crim. App. 2023) (citations omitted).
United States v. Douglas, No. ACM 40324

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“In a case with a crime victim, after a sentence is announced in a courtmartial any crime victim of an offense may submit matters to the convening 

authority for consideration in the exercise of the convening authority’s powers 

under R.C.M. 1109 or 1110.” R.C.M. 1106A(a). “The convening authority shall 

ensure any matters submitted by a crime victim under this subsection be 

provided to the accused as soon as practicable.” R.C.M. 1106A(c)(3).

If a crime victim submits matters under R.C.M. 1106A, “the accused shall 

have five days from receipt of those matters to submit any matters in rebuttal.” 

R.C.M. 1106(d)(3). “Before taking or declining to take any action on the 

sentence under this rule, the convening authority shall consider matters timely 

submitted under R.C.M. 1106 and 1106A, if any, by the accused and any crime 

victim.” R.C.M. 1109(d)(3)(A).3 A convening authority “may not consider 

matters adverse to the accused without providing the accused an opportunity 

to respond.” R.C.M. 1106A(c)(2)(B), Discussion (citation omitted).

“Post-trial conduct must consist of fair play, specifically giving the 

appellant ‘notice and an opportunity to respond.’” Valentin-Andino, 83 M.J. at 

541 (internal quotation marks omitted) (quoting United States v. Hunter, No. 

201700036, 2017 CCA LEXIS 527, at *4 (N.M. Ct. Crim. App. 8 Aug. 2017) 

(unpub. op.)). “Serving victim clemency correspondence on the accused for 

comment before convening authority action protects an accused’s due process 

rights under the Rules for Courts-Martial and preserves the actual and 

perceived fairness of the military justice system.” Id. (internal quotation marks 

omitted) (quoting United States v. Bartlett, 64 M.J. 641, 649 (A. Ct. Crim. App. 

2007)). Additionally, “‘the concepts of basic fairness and procedural due 

process’ require service and opportunity to comment” on victim matters 

submitted to the convening authority. Id. at 543 (quoting United States v. 

Spears, 48 M.J. 768, 775 (A.F. Ct. Crim. App. 1998), overruled on other grounds 

by United States v. Owen, 50 M.J. 629, 630 (A.F. Ct. Crim. App. 1998) (en 

banc)).

Where an appellant has not been provided an opportunity for rebuttal of 

matters provided to the convening authority, for relief on appeal we require an 

appellant to demonstrate prejudice. See id. at 542. ‘“[W]e will not ‘speculate on 

what the convening authority might have done’ if defense counsel had been 

given an opportunity to comment.” Id. (citing United States v. Chatman, 46 

M.J. 321, 323–24 (C.A.A.F. 1997) (quoting United States v. Jones, 44 M.J. 242, 

3 R.C.M. 1109(d) has an apparent scrivener’s codification error because it includes two 

paragraphs designated as paragraph (3). The first paragraph (3) addresses the 

convening authority’s Consideration of matters, while the second paragraph (3) 

addresses the Timing of the convening authority’s action. All references in this opinion 

are to the first paragraph (d)(3) in R.C.M. 1109.
United States v. Douglas, No. ACM 40324

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244 (C.A.A.F. 1996)). To demonstrate prejudice, an appellant must “show what 

he would do to resolve the error if given such an opportunity.” United States v. 

Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998). “If the appellant makes such a 

showing, the Court of Criminal Appeals must either provide meaningful relief 

or return the case to the Judge Advocate General concerned for a remand to a 

convening authority for a new post-trial . . . action.” Id. at 289.4

B. Analysis 

The record is clear that Appellant was not provided an opportunity to rebut

the matters submitted by RH before the convening authority’s decision on 

action. The Government concedes this was error. We find that not affording 

Appellant an opportunity to rebut RH’s submission under R.C.M. 1106A was 

not simply error, but a violation of Appellant’s most basic due process rights 

under the Rules for Courts-Martial. See Bartlett, 64 M.J. at 649; United States 

v. Kim, No. ACM 40057, 2022 CCA LEXIS 276, at *7 (A.F. Ct. Crim. App. 9 

May 2022) (unpub. op.), rev. denied, __ M.J. __, No. 23-0058, 2023 CAAF LEXIS 

156 (C.A.A.F. 20 Mar. 2023); United States v. Halter, No. ACM S32666, 2022 

CCA LEXIS 9, at *8 (A.F. Ct. Crim. App. 6 Jan. 2022) (unpub. op.), rev. denied, 

83 M.J. 30 (C.A.A.F. 2022). 

By articulating what Appellant would have submitted in response to RH’s 

submission, Appellant has demonstrated “what, if anything, would have been 

submitted to deny, counter, or explain the new matter.” Chatman, 46 M.J. at 

323 (internal quotation marks omitted). We will not speculate as to the likely 

efficacy of such an approach, nor what the convening authority may have done 

differently, if anything. See id. Here, “some colorable showing of possible 

prejudice” is demonstrated because Appellant has articulated how he would 

have rebutted RH’s submission had he been given the required opportunity, 

and the convening authority had the power to grant some clemency relief. 

We conclude the relief warranted in this case is to provide Appellant with 

what he is entitled to: the right to be served with RH’s submission of matters, 

and the opportunity to submit rebuttal matters for the convening authority’s 

consideration before deciding whether to grant Appellant sentence relief.

4 Although the United States Court of Appeals for the Armed Forces (CAAF) was 

interpreting a different version of Article 60, UCMJ, 10 U.S.C. § 860, in United States 

v. Scalo, 60 M.J. 435 (C.A.A.F. 2005), and Wheelus, the CAAF has not indicated its 

jurisprudence regarding the appropriate standard for assessing post-trial processing 

error has changed. See, e.g., United States v. Miller, 82 M.J. 204, 208 (C.A.A.F. 2022)

(applying “some colorable showing of possible prejudice” standard to an asserted posttrial processing error (quoting Scalo, 60 M.J. at 436–37)).
United States v. Douglas, No. ACM 40324

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III. CONCLUSION

The record is REMANDED to the Chief Trial Judge, Air Force Trial 

Judiciary, to resolve a substantial issue with the post-trial processing, as the 

convening authority signed the Decision on Action memorandum prior to 

Appellant being afforded five days to submit a rebuttal to RH’s submission of 

matters. Our remand returns jurisdiction to a detailed military judge and 

dismisses this appellate proceeding. See JT. CT. CRIM. APP. R. 29(b)(2). 

A detailed military judge shall:

(1) return the record of trial to the convening authority for posttrial processing consistent with this opinion, specifically 

affording Appellant the opportunity to respond to victim matters

already submitted under R.C.M. 1106A,

5 and any additional 

matters Appellant chooses to submit under R.C.M. 1106,6 before 

the convening authority takes action; 

(2) correct or modify the entry of judgment; and

(3) ensure that Prosecution Exhibit 3 is corrected to contain the 

28 video clips admitted into evidence in a format accessible by 

standard Air Force configured computer systems to enable this 

court’s review.

The detailed military judge may also conduct one or more Article 66(f)(3), 

UCMJ, 10 U.S.C. § 866(f)(3), proceedings using the procedural rules for posttrial Article 39(a), UCMJ, 10 U.S.C. § 839(a), sessions.

Thereafter, the record of trial will be returned to the court for completion 

5 “The crime victim is entitled to one opportunity to submit matters to the convening 

authority under this rule.” R.C.M. 1106A(c)(2)(B).

6 In United States v. Rosenthal, our superior court held, 

When a case is remanded for a new convening authority’s [(CA’s)] 

action, the [CA] is not limited to considering the circumstances as they 

existed at the time of the initial review. The [CA] may consider other 

appropriate matters—including changes in circumstances following 

the initial action on the case—for purposes of determining whether 

clemency or other post-trial action is warranted. 

62 M.J. 261, 262–63 (C.A.A.F. 2005) (citations omitted).
United States v. Douglas, No. ACM 40324

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of appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court