UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class ZAVIAN M. T. ADDISON

United States Air Force

ACM S32287

6 May 2016

Sentence adjudged 3 December 2014 by SPCM convened at Joint Base Pearl 

Harbor-Hickam, Hawaii. Military Judge: Gregory O. Friedland.

Approved Sentence: Bad-conduct discharge, confinement for 30 days, and 

reduction to the grade of E-1.

Appellate Counsel for Appellant: Major Jeffrey A. Davis.

Appellate Counsel for the United States: Captain Rebecca A. Magnone and 

Gerald R. Bruce, Esquire.

Before

ALLRED, TELLER, and BENNETT

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

BENNETT,Judge:

At a special court-martial composed of a military judge sitting alone, Appellant 

pleaded guilty to two specifications of physically controlling a passenger car while drunk, 

two specifications of assault consummated by a battery, and three specifications of 

communicating a threat in violation of Articles 111, 128, and 134, UCMJ, 10 U.S.C. §§ 

911, 928, and 934. The military judge sentenced him to a bad-conduct discharge, 

confinement for 45 days, and reduction to the grade of E-1. Pursuant to a pretrial 
2 ACM S32287

agreement, the convening authority approved only the bad-conduct discharge, confinement 

for 30 days, and reduction to the grade of E-1. 

Appellant contends that (1) he is entitled to new post-trial processing because the 

staff judge advocate (SJA) failed to correct an error in Appellant’s clemency submission, 

and (2) that the trial counsel made an improper sentencing argument. We disagree and 

affirm the findings and sentence. 

Background

The crimes that Appellant pleaded guilty to were fueled by alcohol and took place 

over the course of approximately five days. On or about 6 April 2014, the trouble started 

when two Airmen came upon Appellant who was drunkenly urinating on a vehicle in their

dormitory parking lot. They offered him assistance when they saw how inebriated he was. 

In response, Appellant threatened to kill one of the Airmen and rape the other. Then he 

assaulted them. Soon after, security forces responded and Appellant was found drunk in 

his parked car. After he was apprehended, he threatened to beat one of the officers. On or 

about 11 April 2014, Appellant was again apprehended on suspicion of drunk driving on 

Joint Base Pearl Harbor-Hickam. 

Additional facts necessary to resolve the assigned errors are included below.

Post-trial Processing

In his clemency submission, Appellant’s trial defense counsel erroneously 

interpreted an amendment to Article 60, UCMJ, 10 U.S.C. § 860—one that limits a 

convening authority’s ability to mitigate an accused’s sentence post-trial—to be applicable 

in Appellant’s case. This amendment was made pursuant to Section 1702(b) of the 

National Defense Authorization Act of Fiscal Year 2014 (2014 NDAA) and was not 

effective for crimes committed prior to 24 June 2014. Appellant was convicted of offenses 

that occurred on or about 6 and 11 April 2014. Hence, the trial defense counsel’s 

interpretation of the amendment’s applicability was mistaken. In his first asserted issue, 

Appellant argues that he is entitled to new post-trial processing because the staff judge 

advocate (SJA) failed, in his addendum to the staff judge advocate’s recommendation 

(SJAR), to correct the trial defense counsel’s mistake. 

We review allegations of error in post-trial processing de novo. United States v. 

Kho, 54 M.J. 63, 65 (C.A.A.F. 2000). If defense counsel fails to timely comment on an 

error or omission in the SJAR, that 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). To prevail, under 

plain error review, Appellant must demonstrate: “(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). “[B]ecause of the highly discretionary nature of the convening authority’s 
3 ACM S32287

clemency power, the threshold for showing [post-trial] prejudice is low.” United States v. 

Lee, 52 M.J. 51, 53 (C.A.A.F. 1999). Only a colorable showing of possible prejudice is 

necessary. Id. Even so, an error in the SJAR “does not result in an automatic return by the 

appellate court of the case to the convening authority.” United States v. Green, 44 M.J. 93, 

95 (C.A.A.F. 1996). “Instead, an appellate court may determine if the accused has been

prejudiced by testing whether the alleged error has any merit and would have led to a 

favorable recommendation by the SJA or corrective action by the convening authority.” 

Id. 

Under Rule for Courts-Martial (R.C.M.) 1106(d)(4), an SJA is only required to state 

whether corrective action is needed if the defense makes an allegation of legal error in the 

matters submitted under R.C.M. 1105 or it is otherwise deemed appropriate by the SJA. 

United States v. Foy, 30 M.J. 664, 666 (A.F.C.M.R. 1990). “[T]he staff judge advocate is 

not required to specifically advise the convening authority on issues the appellant raises in 

[his] clemency submissions unless those issues are raised as legal error.” United States v. 

Taylor, 67 M.J. 578, 580 (A.F. Ct. Crim. App. 2008). While the trial defense counsel may 

have erroneously interpreted a 2014 NDAA amendment to Article 60, UCMJ, as being 

effective and applicable to the convening authority, he did not allege any legal errors in his

clemency submission. The SJAR in this case correctly indicates that no corrective action 

was required with regard to the findings or sentence. The SJAR and addendum complied 

with the requirements of R.C.M. 1106(d)(4). Appellant has not met his burden to show 

plain error in post-trial processing.

Improper Sentencing Argument

Assistant trial counsel argued, during presentencing and without objection, that 

Appellant deserved a bad-conduct discharge because it was like a brand and it was the best 

characterization of his service in the Air Force. Appellant now cites our decision in United 

States v. Gehlhausen, ACM 35280 (A.F. Ct. Crim. App. 14 October 2004) (unpub. op.), 

for the proposition that it was improper for the assistant trial counsel to argue that a badconduct discharge was an appropriate punishment because it was the best characterization 

of Appellant’s service. Because there was no objection, we review the propriety of the 

assistant trial counsel’s argument for plain error. United States v. Halpin, 71 M.J. 477, 479 

(C.A.A.F. 2013). To prevail under plain error analysis, Appellant must show “(1) there 

was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a 

substantial right.” United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (quoting 

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

Gelhausen is distinguishable from the present case. In Gelhausen, we cited our 

superior court’s decision in United States v. Ohrt, 28 M.J. 301 (C.A.A.F. 1989), and we 

agreed with Appellant that it was “improper to describe a punitive discharge as a service 

characterization.” Gelhausen, unpub. op. at 11. At first blush, this language from 

Gelhausen seems to support Appellant’s argument. However, the Ohrt decision is rooted 
4 ACM S32287

in R.C.M. 1001(b)(5) which is the procedural rule that governs the admission of evidence 

of rehabilitative potential. In Ohrt, our superior court was faced with the question of 

whether it was improper for the prosecution to elicit testimony from the appellant’s 

squadron commander concerning whether the appellant should be retained or separated. 

Ohrt, 28 M.J. at 304–305. The court concluded that:

RCM 1001(b)(5) was not designed to give the prosecutor an 

opportunity to influence court members to punish the accused 

by imposing a punitive discharge. It also was not intended to 

be a vehicle to make an administrative decision about whether 

an accused should be retained or separated.

Id. at 306.

The court reasoned that the line of questioning employed by trial counsel during 

sentencing had “misplac[ed] the role of the punitive discharge in the military justice 

sentence model.” Id. at 305. A punitive discharge serves a different purpose than an 

administrative discharge. Id. The former is a punishment that a court-martial is convened

to consider. Id. The latter is an administrative termination of employment.1 Moreover, 

the court held that the question of how to punish an accused—including whether to punish 

an accused with a punitive discharge—was a decision reserved solely for the sentencing 

authority. Id. Thus, it was wrong for the Government to offer testimony that could 

improperly influence the sentencing authority, such as testimony from the accused’s 

squadron commander that he should be punitively discharged. Id. The holding in Ohrt

was not about what should or should not be argued by trial counsel during sentencing. 

If there were any questions about the meaning of our holding in Gelhausen, they 

should have been laid to rest by our more recent decision in United States v. Lozano, ACM 

S32043 (A.F. Ct. Crim. App. 19 September 2013) (unpub. op.). In that case we found no 

error where the trial counsel repeatedly argued that a bad-conduct discharge would be the 

appropriate service characterization for the appellant.

There is nothing wrong with describing a bad-conduct discharge as a negative 

service characterization. It is, after all, a discharge one becomes eligible for after 

committing some type of bad conduct.2 How, then, could it be improper for a trial counsel 

 

1

It is worth noting that, for administrative discharges, there are three different discharge characterizations: Honorable, 

Under Honorable Conditions (General), Under Other than Honorable Conditions. Air Force Instruction (AFI) 36-

3208, Administration Separation of Airmen, ¶ 1.16.1 (9 July 2004).

2 R.C.M. 1003(b)(8)(C) describes the nature of this type of punitive discharge as follows: 

A bad-conduct discharge is less severe than a dishonorable discharge and is 

designed as a punishment for bad-conduct rather than as a punishment for serious 

offenses of either a civilian or military nature. It is also appropriate for an accused 
5 ACM S32287

to argue that an accused deserves a bad-conduct discharge because he or she behaved badly, 

broke the law, or did anything else that, arguably, would call for a negative service 

characterization? 

As noted by our superior court:

The punitive discharge was designed to sever a servicemember 

from the military community and to put a mark upon him 

which would make it difficult for him to reenter the civilian 

society and economy. The punitive discharge thus had two 

effects by design: first, it punished by ejection from a familiar 

society and by imposing social and economic hardships; and, 

second, it deterred others by its visible, swift, effective and 

harsh character. 

The punitive discharge is a stigma. It is a badge of dishonor, 

and it has a significant historical background and basis. 

Importantly, it can be adjudged with or without regard to 

whether an accused has rehabilitative potential.

Ohrt, 28 M.J. at 306 (internal citation omitted) (emphasis added).

Nevertheless, a problem does arise when a trial counsel blurs the lines between 

punitive and administrative discharge. Lozano, unpub. op. at 7–8 (citing United States v. 

Motsinger, 34 M.J. 255, 256 (C.A.A.F. 1992)). However, that did not happen in the case 

at bar. Thus, there was no error, plain or otherwise.3 

Furthermore, we “may affirm only such findings of guilty and the sentence or such 

part or amount of the sentence, as [we] find[] correct in law and fact and determine[], on 

the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 

 

who has been convicted repeatedly of minor offenses and whose punitive 

separation appears to be necessary . . . . 

(Emphasis added). See also Department of the Army Pamphlet 27-9, Military Judges' Benchbook, ¶ 8-3-23 (10 

September 2014) (“The stigma of a punitive discharge is commonly recognized by our society. A punitive discharge 

will place limitations on employment opportunities and will deny the accused other advantages which are enjoyed by 

one whose discharge characterization indicates that (he) (she) has served honorably.”) (emphasis added).

3 Even if the assistant trial counsel’s argument had been improper, Appellant’s case was tried before a military judge 

sitting alone, and “[m]ilitary judges are presumed to know the law and to follow it absent clear evidence to the 

contrary.” United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 

484 (C.A.A.F. 1997)). The Court of Appeals for the Armed Forces has also recognized, “[a]s part of this presumption 

we further presume that the military judge is able to distinguish between proper and improper sentencing arguments.”

Id.; see also United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (“As the sentencing authority, a military 

judge is presumed to know the law and apply it correctly absent clear evidence to the contrary.”). 
6 ACM S32287

866(c). “We assess sentence appropriateness by considering the particular appellant, the 

nature and seriousness of the offenses, the appellant’s record of service, and all matters 

contained in the record of trial.” United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. 

App. 2006); see also United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). We have 

considered this particular appellant, the nature and seriousness of his offense, his record of 

service, all matters contained in the record of trial, and his arguments on appeal and we 

find the approved sentence is appropriate. 

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 approved findings and 

sentence are AFFIRMED.

FOR THE COURT

 LEAH M. CALAHAN

Clerk of the Court