U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 39479
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         Brian S. ARNOLD
            Master Sergeant (E-7), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 18 November 2019
                          ________________________

Military Judge: Christina M. Jimenez.
Approved sentence: Bad-conduct discharge, confinement for 20 months,
and reduction to E-1. Sentence adjudged 20 March 2018 by GCM con-
vened at Joint Base Charleston, South Carolina.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel G. Matt Osborn, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Senior Judge J. JOHNSON delivered the opinion of the court, in which
Judge KEY joined. Judge POSCH filed a separate opinion concurring in
part and dissenting in part.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                          ________________________

J. JOHNSON, Senior Judge:
    A general court-martial composed of a military judge alone convicted Ap-
pellant, in accordance with his pleas pursuant to a pretrial agreement (PTA),
of one specification of wrongful possession of child pornography in violation of
                     United States v. Arnold, No. ACM 39479


Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 The
military judge sentenced Appellant to a bad-conduct discharge, confinement
for 20 months, and reduction to the grade of E-1. The convening authority ap-
proved the adjudged sentence.
    Appellant raises three issues on appeal: (1) whether the court-martial
lacked jurisdiction to impose confinement on Appellant, a reservist, because
Appellant’s recall to active duty for trial was not properly authorized by the
Secretary of the Air Force; (2) whether Appellant’s conviction violated the Fifth
Amendment’s 2 Double Jeopardy Clause; and (3) whether Appellant is entitled
to new post-trial processing due to errors in the post-trial process. We find the
court-martial had jurisdiction over Appellant and his conviction was not con-
stitutionally barred, but we find that post-trial errors do require new post-trial
processing and action.

                                 I. BACKGROUND
   Appellant was a reservist attached to a security forces squadron located at
Joint Base Charleston, South Carolina, where he regularly attended monthly
unit training assemblies. Appellant exercised exclusive control of a Govern-
ment-issued external hard drive that he used for work related to his official
duties. Appellant’s unit permitted him to take the hard drive to his home in
Union County, North Carolina, to accomplish work while he was not on Air
Force orders. In 2014 and 2015, Appellant took the hard drive home with him
approximately seven or eight times.
    In June 2015, as Appellant was preparing to retire from the Air Force, he
returned the government hard drive to his unit. Other members of the unit
subsequently found child pornography on the hard drive, and took it to the Air
Force Office of Special Investigations (AFOSI). The Defense Computer Foren-
sics Laboratory (DCFL) analyzed the hard drive and identified three videos of
known child pornography; in addition, DCFL classified four other videos as
“possible” child pornography.
    On 29 June 2015, an AFOSI agent traveled to North Carolina and inter-
viewed Appellant in conjunction with local civilian law enforcement. Following
this interview, local law enforcement agents seized Appellant’s personal laptop



1All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).
2   U.S. CONST. amend. V.




                                         2
                       United States v. Arnold, No. ACM 39479


computer, on which they found multiple images and videos of child pornogra-
phy. Based on these images and videos, Appellant was charged in North Caro-
lina with two counts of second degree sexual exploitation of a minor. 3 Although
Appellant had connected the Air Force hard drive to the computer seized in
North Carolina, none of the images of child pornography found on the Air Force
hard drive were among those charged by civilian authorities.
    On 25 October 2016, while Appellant’s state charges were pending, the
628th Air Base Wing (628 ABW) commander signed a “Request for Secretary
of the Air Force Approval” to order Appellant to active duty for trial by court-
martial. The request was addressed to the Air Force Expeditionary Center
commander, the general court-martial convening authority (GCMCA). The re-
quest explained that because Appellant was a reservist, “Secretary of the Air
Force approval of the order is necessary to authorize execution of any adjudged
sentence to confinement if [Appellant] is tried by court-martial.” Among other
information, the request stated Appellant had “no prior convictions or nonju-
dicial punishment actions.”
    On 3 November 2016, Appellant pleaded guilty in a North Carolina supe-
rior court to a reduced charge of third degree aiding and abetting the sexual
exploitation of a minor. 4 As a result, Appellant was sentenced to a term of 6 to
17 months in confinement, suspended pending successful completion of 24
months of supervised probation, at which point any remaining portion of the
sentence would be remitted.
    A day later, on 4 November 2016, the 628 ABW staff judge advocate (SJA)
signed a legal review of the 628 ABW commander’s request for secretarial ap-
proval. The legal review “f[ou]nd the proposed recall legally sufficient,” and
recommended that the case be prosecuted at Joint Base Charleston. Although
the legal review, like the commander’s request itself, mentioned civilian law
enforcement’s involvement in the investigation, neither mentioned Appellant’s
civilian prosecution in North Carolina.
    On 8 December 2016, the GCMCA requested that the Secretary of the Air
Force (Secretary) approve Appellant’s recall to active duty to stand trial. A staff
summary sheet dated 15 February 2017 that circulated the GCMCA’s request
among various offices prior to the Secretary’s review reiterated, inter alia, that
Appellant “has no prior criminal convictions.” On 7 April 2017, the acting Sec-
retary approved “any recall to active duty of [Appellant] that [the GCMCA]
ha[d] ordered or may hereafter order.” On 5 May 2017, Appellant’s squadron
commander preferred one charge and specification against Appellant, alleging


3   See N.C. GEN. STAT. § 14-190.17 (2008).
4   See N.C. GEN. STAT. § 14-190.17A (2008).


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                     United States v. Arnold, No. ACM 39479


wrongful possession of child pornography between on or about 1 August 2012
and on or about 7 June 2015 in violation of Article 134, UCMJ.
    Before trial, the Defense moved to dismiss the Charge and its Specification
on the basis, inter alia, 5 that North Carolina had already tried Appellant for
the same criminal act of possessing child pornography, and the Government
had not complied with certain provisions of Air Force Instruction (AFI) 51-201,
Administration of Military Justice (6 Jun. 2013, as amended by AFGM 2016-
01, 3 Aug. 2016), 6 that applied in such circumstances. Specifically, the Defense
asserted the Government had not “coordinated” its intent to try Appellant with
either the State of North Carolina or the State of South Carolina. In addition,
the Defense asserted the request for secretarial approval was based solely on
the authorization to execute any sentence to confinement; it failed to
acknowledge Appellant’s impending court-martial was a second prosecution for
the same offense, which would require the Secretary to determine such a pros-
ecution was necessary because “the ends of justice and discipline can be satis-
fied in no other way.” The Government opposed the Defense’s motion on two
bases: (1) the State of North Carolina and the Government had charged differ-
ent images obtained from different devices, and therefore had not charged the
same offense; and (2) the elements of the offenses charged by North Carolina
and by the Government were different, and therefore the offenses were differ-
ent.
    In a written ruling, the military judge denied the Defense’s motion to dis-
miss. She found the Charge and its Specification pending trial by court-martial
“distinguishable” from the charge prosecuted in North Carolina because the
images in each case were obtained from different devices, and there was “no
evidence the laptop contained the videos before this court.” Therefore, the cur-
rent court-martial was not a second prosecution for the same offense that re-
quired secretarial approval in accordance with AFI 51-201. Because there was
also no indication of a “pending trial” in either North Carolina or South Caro-
lina for the offense that was before the court-martial, there was no violation of
any other provision of AFI 51-201. Furthermore, assuming arguendo there had




5 The Defense also alleged Appellant’s due process right to a speedy trial had been
violated, but Appellant has not raised that issue on appeal.
6Unless otherwise noted, all references in this opinion to AFI 51-201 are to this version
of the AFI, which was in effect at the time the acting Secretary approved Appellant’s
recall to active duty for trial.




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                    United States v. Arnold, No. ACM 39479


been a violation of the instruction, the military judge found the relevant poli-
cies set forth in AFI 51-201 did not create additional rights for an accused, and
therefore any regulatory violation did not have “jurisdictional effect.” 7
   Immediately after the military judge entered her ruling, Appellant entered
an unconditional guilty plea to the Charge and its Specification pursuant to a
PTA.

                                  II. DISCUSSION
A. Jurisdiction
    Appellant contends the court-martial lacked jurisdiction to sentence him to
confinement because the Secretary’s approval of his recall to active duty for
trial was defective. We disagree.
    1. Law
    We review questions of court-martial jurisdiction de novo. United States v.
Hale, 

, 270 (C.A.A.F. 2019) (citing EV v. United States, 

,
333 (C.A.A.F. 2016)). “When challenged, the government must prove jurisdic-
tion by a preponderance of evidence.” 

States v. Morita, 

, 121 (C.A.A.F. 2015)). We also review questions of statutory and reg-
ulatory interpretation de novo. United States v. Atchak, 

, 195
(C.A.A.F. 2016) (citing United States v. Vargas, 

, 5 (C.A.A.F. 2014));
United States v. Watson, 

, 419 (C.A.A.F. 2011) (citing United States
v. Estrada, 

, 47 (C.A.A.F. 2010)).
    “Generally, there are three prerequisites that must be met for courts-mar-
tial jurisdiction to vest: (1) jurisdiction over the offense, (2) jurisdiction over
the accused, and (3) a properly convened and composed court-martial.” United
States v. Ali, 

, 261 (C.A.A.F. 2012) (citing Rule for Courts-Martial
(R.C.M.) 201(b); United States v. Harmon, 

, 101 (C.A.A.F. 2006)). A
GCMCA may order a member of a reserve component to active duty involun-
tarily for the purpose of trial by court-martial. Article 2(d)(1), (4), UCMJ, 10
U.S.C. § 802(d)(1), (4). However, such a reservist may not be sentenced to con-
finement unless his recall was “approved by the Secretary concerned.” Article
2(d)(5), UCMJ, 10 U.S.C. § 802(d)(5). “The Secretary concerned shall prescribe
regulations setting forth rules and procedures for the exercise of court-martial



7The military judge’s ruling referred to the 8 December 2017 version of AFI 51-201, in
effect at the time of Appellant’s trial although not at the time the acting Secretary
approved Appellant’s recall. Although the 8 December 2017 version significantly reor-
ganized the order of paragraphs within the regulation, the content of the pertinent
provisions remained substantially the same as the previous version.


                                          5
                   United States v. Arnold, No. ACM 39479


jurisdiction . . . over reserve component personnel under Article . . . 2(d), sub-
ject to the limitations of [the Manual for Courts-Martial, United States] and
the UCMJ.” R.C.M. 204(a).
   AFI 51-201 articulates several policies with regard to bringing Air Force
reserve personnel to trial by court-martial. Relevant to Appellant’s case, AFI
51-201, ¶ 2.9.5 provides in pertinent part:
       A Reserve . . . member recalled to active duty for court-martial
       without [secretarial] approval may not be sentenced to confine-
       ment or be required to serve a punishment consisting of any re-
       striction on liberty during the recall period of duty. See Article
       2(d)(5), UCMJ. . . . Requests for [secretarial] approval to recall a
       reserve member for court-martial to preserve the possibility that
       the sentence may include confinement are forwarded, via com-
       mand channels, to AFLOA/JAJM [Air Force Legal Operations
       Agency Military Justice Division]. Generally, requests should be
       made prior to preferral of charges, but, in any case, must be ap-
       proved prior to arraignment. The GCMCA must concur in the
       request and the request shall include as a minimum, the follow-
       ing information:
       ....
       . . . Prior convictions and nonjudicial punishments.
    AFI 51-201 also articulates policies with respect to court-martial jurisdic-
tion in cases “involving state or foreign prosecution interest.” AFI 51-201, ¶
2.6. In particular, ¶ 2.6.1 provides, inter alia:
       When a member is subject to both UCMJ and state or foreign
       jurisdiction for substantially the same act or omission, the de-
       termination of which sovereign shall exercise jurisdiction should
       be made through consultation or prior agreement between ap-
       propriate Air Force and civilian authorities. RCM 201(d). If a
       state or foreign authority’s exercise of jurisdiction will not
       meet/or [sic] has not met the ends of good order and discipline,
       it may be appropriate to seek permission from [the Secretary] to
       exercise UCMJ authority. . . . Except as discussed in paragraph
       2.6.3. [regarding secretarial approval], a member who is either
       pending trial or has been tried by a state or foreign court, re-
       gardless of whether the member was convicted or acquitted of
       the offense(s), should not ordinarily be tried by a court-martial
       . . . for the same act or omission. This policy is based on comity
       between the Federal Government and state and foreign govern-
       ments and is not intended to confer additional rights upon the


                                        6
                   United States v. Arnold, No. ACM 39479


       accused. See United States v. Kohut, 

, 247 (C.A.A.F.
       1996) . . . .
(Emphasis added.) Relatedly, ¶ 2.6.3 provides, inter alia:
       Only [the Secretary] may approve initiation of court-martial . . .
       action against a member previously tried by a state or foreign
       court for substantially the same act or omission, regardless of
       whether the member was convicted or acquitted of the offense(s).
       These requests may only be submitted after the member has
       been tried in a state or foreign court. Submit requests, with full
       justification, through command channels to AFLOA/JAJM. [Sec-
       retarial] approval will be granted in only the most unusual cases
       when the ends of justice and discipline can be satisfied in no
       other way.
    “[P]olicy typically is not law. . . . [E]ven a regulation—which, as a general
rule, often is said to bind the authority that promulgates it . . . may be asserted
by an accused only if it was prescribed to protect an accused’s rights.” United
States v. Sloan, 

, 9 (C.M.A. 1992) (footnote omitted) (citations omit-
ted), overruled in part on other grounds by United States v. Dinger, 

(C.A.A.F. 2018). An appellate court is “not justified in attaching jurisdictional
significance to service regulations in the absence of their express characteriza-
tion as such by Congress.” 

(quoting United States v. Jette,

, 18 (C.M.A. 1987)).
   2. Analysis
    Essentially, Appellant contends the acting Secretary’s approval of his recall
to active duty for trial was defective in two respects. First, he argues that be-
cause North Carolina had tried him for the “same act” for which he was to be
tried by court-martial, AFI 51-201, ¶ 2.6.3 required the acting Secretary to
make a determination that his case was one of the “most unusual cases” that
additionally required military prosecution because “the ends of justice and dis-
cipline [could] be satisfied in no other way.” However, Appellant contends, the
acting Secretary could not have performed this analysis because she was not
informed that North Carolina had already prosecuted Appellant for this “same
act.” Second, Appellant argues the Government also failed to fulfill the require-
ments of AFI 51-201, ¶ 2.9.5, because the request incorrectly advised the acting
Secretary that Appellant had no prior convictions. That had been true when
the 628 ABW commander signed his initial request on 25 October 2016, but
was no longer true after Appellant’s conviction in North Carolina on 3 Novem-
ber 2016. Appellant suggests that these were material deficiencies because,
had the acting Secretary known of Appellant’s state prosecution, she may not
have authorized a second prosecution by the Air Force. Appellant concludes


                                        7
                   United States v. Arnold, No. ACM 39479


that because there was no valid secretarial approval, under Article 2(d)(5),
UCMJ, the court-martial lacked jurisdiction to sentence him to confinement.
However, we find Appellant’s arguments to be flawed in several respects.
    First, we agree with the military judge that Appellant was not in fact tried
twice for the “same act.” The State of North Carolina prosecuted Appellant
based on images of child pornography that it discovered on the laptop computer
it seized from his residence. The Government prosecuted Appellant for pos-
sessing different images of child pornography that it discovered on his Air
Force-issued hard drive. When Appellant pleaded guilty at his court-martial,
he stipulated to the fact that “[n]one of the charged images in North Carolina
found on his personal laptop were any of the images . . . found on the govern-
ment hard drive.” Accordingly, Appellant’s possession of the external hard
drive containing child pornography was a distinct crime from his concurrent
possession of his personal laptop computer containing different child pornog-
raphy. See United States v. Forrester, 

, 396–97 (C.A.A.F. 2017) (con-
cluding that Article 134, UCMJ, was “intended to separately criminalize and
punish possession of each ‘material that contains’ child pornography”).
    Second, even if there had been overlap between the images of child pornog-
raphy prosecuted in North Carolina and at Appellant’s court-martial, under
Forrester Appellant’s possession of the computer and of the hard drive were
still “distinct criminal acts of possession.” 

In Forrester, the United
States Court of Appeals for the Armed Forces (CAAF) explained that “[b]ecause
pt. IV, para. 68b [of the Manual for Courts-Martial] defines ‘[c]hild [p]ornogra-
phy’ not as images but ‘material[s]’ that contain them, it matters not that the
images extant on each material listed in the bill of particulars were visually
similar or identical for each count of possession.” 

(third, fourth, and
fifth alterations in original). Therefore, the CAAF found, Corporal Forrester
could be separately charged and separately punished for four separate specifi-
cations of possession of child pornography, where he possessed four different
devices containing child pornography, irrespective of whether the same images
were on each device. 

We perceive no basis to apply a different anal-
ysis to the question of whether an Airman has been tried by a state for “sub-
stantially the same act or omission” for purposes of AFI 51-201, ¶ 2.6.1 and
¶ 2.6.3.
    Third, assuming arguendo the Government had failed to comply with AFI
51-201, ¶ 2.6.3, such noncompliance was without jurisdictional significance.
See 

. In general, an accused or an appellant may assert
noncompliance with a regulation only if the regulation was prescribed in order
to protect an accused’s rights. 

(citations omitted). In this
case, AFI 51-201, ¶ 2.6.1 explicitly denies that the purpose of the Air Force
policy against prosecuting an Airman who has already been prosecuted by a


                                        8
                   United States v. Arnold, No. ACM 39479


state or foreign court for the same offense was to create rights for an accused.
Significantly, ¶ 2.6.1 expressly refers to the secretarial approval requirement
under ¶ 2.6.3, implying ¶ 2.6.3 was similarly not intended to give standing to
an accused. Moreover, this court previously found ¶ 2.6.3—in an earlier ver-
sion of AFI 51-201 with substantially similar language—in fact had no juris-
dictional effect in our unpublished opinion in United States v. Grafmuller, No.
ACM 37524, 2011 CCA LEXIS 335, at *17–19 (A.F. Ct. Crim. App. 

) (unpub. op.) (citing AFI 51-201, Administration of Military Justice, ¶
2.6.3. (21 Dec. 2007)), rev’d on other grounds, 

(C.A.A.F. 2011). Re-
lying on Kohut and Jette, this court concluded ¶ 2.6.3 “is a matter of policy
rather than jurisdiction,” and therefore any noncompliance was waived by the
appellant’s unconditional guilty plea. 

(citing 

;

; United States v. Lippoldt, 

, 525 (A.F.C.M.R.
1991)); accord United States v. Hardy, 

, 442 (C.A.A.F. 2018) (cita-
tions omitted) (holding an unconditional guilty plea generally waives all non-
jurisdictional defects at earlier stages of the proceedings). We reach a similar
conclusion in Appellant’s case.
    Fourth, although it appears the Government did fail to comply with the
requirement in AFI 51-201 ¶ 2.9.5 that a request for secretarial approval in-
clude information as to whether the individual has any “prior convictions,” we
find this noncompliance was also without jurisdictional effect. This court ad-
dressed a similar issue in our unpublished decision in United States v. Dutton,
No. ACM S32002, 2013 CCA LEXIS 483, at *6 (A.F. Ct. Crim. App. 5 Jun. 2013)
(unpub. op.) (per curiam). In that case, we reviewed the convictions of an Air
National Guardsman whose recall to active duty the Secretary approved pur-
suant to a request that omitted certain information required by AFI 51-201, ¶
2.9.5. 

Again relying on Kohut, this court found “this failure did not
affect the jurisdiction of the court-martial to impose confinement, as we find
this part of the AFI to be a matter of policy rather than jurisdiction.” 

7 (citing 

; 

; United States v. Hutchins,

, 192 (C.M.A. 1978)). Because the Secretary approved the appellant’s
recall, the jurisdictional requirements of Article 2(d), UCMJ, were met, and
the appellant could be lawfully sentenced to confinement. 

We find
our decision in Dutton well-founded in the CAAF’s established precedent, and
we reach a similar conclusion in Appellant’s case.
B. Double Jeopardy
   1. Law
   “No person shall be . . . subject for the same offence to be twice put in jeop-
ardy . . . .” U.S. CONST. amend. V; see also Article 44(a), UCMJ, 10 U.S.C. §
844(a) (“No person may, without his consent, be tried a second time for the
same offense.”).

                                        9
                   United States v. Arnold, No. ACM 39479


    However, the United States Supreme Court has “long held that a crime
under one sovereign’s laws is not ‘the same offence’ as a crime under the laws
of another sovereign.” Gamble v. United States, 

, 1964 (2019).
Under the Court’s longstanding “dual-sovereignty” doctrine, the Government
may prosecute a defendant under a federal statute even if a state has already
prosecuted him for the same conduct under state law, and vice versa. 

has applied the dual-sovereignty doctrine to court-martial proceedings.
See United States v. Delarosa, 

, 321 (C.A.A.F. 2009) (citing Heath
v. Alabama, 

, 89 (1985)) (additional citations omitted).
   2. Analysis
   Appellant contends this court should dismiss the findings and sentence
with prejudice because he was prosecuted twice for the same offense of pos-
sessing child pornography, in violation of the Fifth Amendment’s Double Jeop-
ardy Clause. We disagree. Appellant’s argument suffers from two fundamental
and fatal flaws.
    First, as we have explained above, the State of North Carolina and the Gov-
ernment prosecuted Appellant for two distinct acts of possessing child pornog-
raphy, specifically the possession of two different sets of images contained on
two different devices. See 

–97. Thus he was not pros-
ecuted twice for the “same offense,” and the conviction before us does not im-
plicate the Double Jeopardy Clause.
    Second, the United States Supreme Court recently reaffirmed its long-
standing adherence to the dual-sovereignty doctrine in 

, which was decided after Appellant filed his Assignments of Error in the
instant case. Therefore, even if the state and the Government had prosecuted
Appellant for the same act of possessing child pornography (which they did
not), he was not convicted twice for the “same offense” in a constitutional sense.
    To the extent Appellant suggests that unique aspects of the military justice
system require that the dual-sovereignty doctrine exert less force in the context
of trials by courts-martial, he cites no decision of the Court, of the CAAF, of
this court, or of any other court in support of such an exemption from estab-
lished constitutional doctrine. On the contrary, the CAAF has plainly found
the doctrine applicable to courts-martial. See 

; United
States v. Stokes, 

, 230 (C.M.A. 1982).
    Accordingly, the Double Jeopardy Clause was no bar to Appellant’s convic-
tion.
C. Post-Trial Process
   1. Additional Background



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                   United States v. Arnold, No. ACM 39479


    After trial, the acting SJA for the convening authority, Major (Maj) BA,
prepared a staff judge advocate’s recommendation (SJAR) which provided, in-
ter alia, the following advice:
       For the charge and its specification, you only have the authority
       to approve the finding of guilt and cannot dismiss the finding of
       guilt.
       ....
       . . . I recommend you approve the 20 months of adjudged confine-
       ment, as that duration of confinement falls within the terms of
       the pretrial agreement. Accordingly, you do not have the author-
       ity to disapprove, commute or suspend, in whole or in part, the
       confinement or punitive discharge. However, you do have the au-
       thority to disapprove, commute or suspend in whole or in part
       the reduction in rank. . . . I recommend you approve the confine-
       ment, punitive discharge, and reduction in rank as adjudged.
    Pursuant to R.C.M. 1105, trial defense counsel submitted, inter alia, a
memorandum on Appellant’s behalf for the convening authority’s considera-
tion before taking action on the court-martial. Trial defense counsel failed to
object to or to correct any erroneous advice in the SJAR. On the contrary, trial
defense counsel stated, inter alia:
       [Appellant] is devastated that he cannot be there to support both
       his mother and step-father [who was recently diagnosed with
       throat cancer], who he is very close to, and hopes to still have
       time with his step-father upon his release from confinement. He
       wishes he could request that his confinement sentence be re-
       duced so he can be reunited with his family during this difficult
       period. Unfortunately, due to the Congressional changes to
       UCMJ Article 60, we know that you do not have that power.
       Base[d] on your authority, the only real impact you are able to
       make on [Appellant]’s sentence is to approve a lesser reduction
       in rank, which is what we are requesting here.
       ....
       . . . [P]lease consider granting him clemency in the form of only
       approving a reduction in grade to the grade of E-4, rather than
       the adjudged reduction to E-1.
    The addendum to the SJAR, signed by the SJA, failed to address any errors
in the SJAR or the clemency submission, and concurred with the previous rec-
ommendation to approve the adjudged sentence. The convening authority ap-
proved the sentence as adjudged.


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                    United States v. Arnold, No. ACM 39479


   2. Law
    “The proper completion of post-trial processing is a question of law the court
reviews de novo.” United States v. Zegarrundo, 

, 613 (A.F. Ct. Crim.
App. 2018) (citing United States v. Kho, 

, 65 (C.A.A.F. 2000)), rev.
denied, __ M.J. __ , No. 19–0407, 2019 CAAF LEXIS 741 (C.A.A.F. 8 Oct. 2019).
Failure to comment in a timely manner on matters in or attached to the SJAR
forfeits a later claim of error; we analyze such forfeited claims for plain error.

“To prevail 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.’” United States v.
Scalo, 

, 436 (C.A.A.F. 2005) (quoting 

) (additional
citation omitted). “To meet this burden in the context of a [SJAR] error,
whether that error is preserved or is otherwise considered under the plain er-
ror doctrine, an appellant must make ‘some colorable showing of possible prej-
udice.’” 

(quoting 

).
    The National Defense Authorization Act (NDAA) for Fiscal Year 2014 mod-
ified Article 60, UCMJ, 10 U.S.C. § 860, and limited the convening authority’s
ability to grant clemency. Pub. L. No. 113–66, § 1702, 127 Stat. 672, 955–58
(2013). The effective date of the change was 24 June 2014. 

However,
where a court-martial conviction involves an offense committed before 24 June
2014 or includes a date range where the earliest date in the range for that
offense is before 24 June 2014, the convening authority has the same authority
under Article 60 as was in effect before 24 June 2014, except with respect to a
mandatory minimum sentence under Article 56(b), UCMJ, 10 U.S.C. § 856(b).
Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act
for Fiscal Year 2015, Pub. L. No. 113–291, § 531, 128 Stat. 3292, 3365 (2014).
In such cases the convening authority retains the authority to set aside any
finding of guilty or to change it to a finding of guilty to a lesser included offense,
to disapprove or mitigate the sentence in whole or in part, or to change a pun-
ishment to one of a different nature so long as the severity is not increased.
Exec. Order 13,730, 81 Fed. Reg. 33,331 (26 May 2016).
   3. Analysis
    The legal advice in the SJAR provided to the convening authority was
plainly erroneous. The date of the offense of which Appellant was convicted
“straddles” 24 June 2014, the effective date of the changes to Article 60, UCMJ.
Therefore, contrary to the advice in the SJAR, the convening authority in this
case had the power to set aside the findings of guilty and the power to disap-
prove, mitigate, or modify the sentence in whole or in part. The advice in the
SJAR that the convening authority could not modify the findings or the ad-
judged confinement or punitive discharge, uncorrected and repeated by the
SJA in the addendum, was simply wrong.

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                       United States v. Arnold, No. ACM 39479


    A related but distinct error was the SJA’s failure to address trial defense
counsel’s evident misunderstanding of the convening authority’s clemency au-
thority. Trial defense counsel explicitly—and erroneously—conceded that the
changes to Article 60, UCMJ, did not allow the convening authority to grant
the reduction in confinement that Appellant desired and that the Defense oth-
erwise would have requested. In Zegarrundo, we found that a SJA’s failure to
correct a defense counsel’s erroneous advice in a clemency submission that the
convening authority lacked the power to disapprove confinement—even where
the SJAR itself contained correct advice—was plain 

; see
United States v. Addison, 

(C.A.A.F. 2016) (mem.). This case pre-
sents a similar situation, exacerbated by the incorrect advice provided in the
SJAR itself.
    The Government concedes the error, but attempts to distinguish this case
from cases such as Zegarrundo because, it asserts, we can be sure this error
“had no impact on either the SJA’s recommendation or the convening author-
ity’s action.” To this end, the Government has submitted declarations from
Maj BA, the acting SJA who signed the erroneous SJAR, and the convening
authority who took action on Appellant’s court-martial. 8
    Maj BA acknowledges that the SJAR contained erroneous advice with re-
spect to the convening authority’s power to modify the findings and sentence.
However, Maj BA asserts that, had he been aware of the convening authority’s
power to grant clemency, his recommendation would have remained the same
because the sentence was “appropriate” and the 20-month term of confinement
matched the cap on confinement the Appellant and convening authority agreed
to in the PTA. Furthermore, Maj BA relates that because trial defense counsel
conveyed in her memorandum that the Defense would have requested a reduc-
tion in confinement had she believed it was authorized, Maj BA “recall[ed] dis-
cussing it” with the convening authority.
   The convening authority states that even if he had been correctly advised
as to the scope of his clemency authority, his “decision would not have
changed.” He explains:
          I carefully considered the matters submitted by [Appellant], in-
          cluding an assertion from his defense counsel that if greater
          clemency options existed, [Appellant] would have requested I re-
          duce his confinement. Although I believed at the time I did not
          have the authority to reduce the sentence to confinement, I re-
          call thinking about the defense counsel’s statement, and con-



8   The convening authority has since retired from the Air Force.


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                    United States v. Arnold, No. ACM 39479


       cluding that the adjudged sentence was appropriate, in part be-
       cause the adjudged sentence included the same amount of con-
       finement as was negotiated in the pre-trial agreement. . . . I am
       confident I would have reached this conclusion even if I was
       made aware at the time that I could have taken other action.
    We do not doubt the sincerity or good faith of either Maj BA or the conven-
ing authority. However, we are not persuaded by the Government’s argument.
In this case, everyone involved in the post-trial process fundamentally misun-
derstood the “vast” and highly discretionary power available to the convening
authority to grant clemency in Appellant’s case. See 

. To
permit post hoc speculation, however sincere, to vitiate an appellant’s right to
request and a convening authority’s power to decide clemency, on an informed
and meaningful basis, imposes too great a burden on the integrity and appear-
ance of fairness of the military justice system—at least in the particular cir-
cumstances of this case.
    In Zegarrundo, we found the trial defense counsel’s erroneous statement
that the convening authority could not disapprove confinement, the corre-
spondingly limited scope of the clemency request, and the SJA’s failure to cor-
rect the defense’s error constituted a “colorable showing of possible preju-
dice”—regardless of any proffer of an alternative defense clemency 

. Each of those factors is also present here, greatly aggravated
by the SJA’s own provision of erroneous advice, which more than outweighs
the fact that the convening authority “thought about” confinement in the con-
text of this fundamentally flawed process. Therefore, we direct a new post-trial
process and action. 9

                                 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 author-
ity for new post-trial processing with conflict-free defense counsel consistent
with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereafter, the rec-
ord of trial will be returned to this court for completion of appellate review
under Article 66, UCMJ.



9 We further note the convening authority’s action dated 6 June 2018 states Appellant
is to “be credited with four days for illegal pretrial confinement against the sentence
to confinement.” Although the military judge awarded Appellant credit for four days
during which he was confined by civilian authorities following his 29 June 2015 inter-
view, the military judge did not find this confinement was illegal, and the convening
authority’s reference to “illegal pretrial confinement” was erroneous.


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                   United States v. Arnold, No. ACM 39479




POSCH, Judge (concurring in part and dissenting in part):
    I agree with my esteemed colleagues in the majority on the resolution of
Appellant’s first and second assigned errors and would affirm the findings of
guilty, in accordance with Appellant’s pleas pursuant to a pretrial agreement
(PTA), of wrongful possession of child pornography in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934. However, I respectfully dis-
sent with regard to the majority’s conclusion that the post-trial errors require
new post-trial processing and action.
    As found by the majority, the acting staff judge advocate (ASJA) misad-
vised the convening authority, the trial defense counsel operated under an er-
roneous view of the law and failed to correct the ASJA’s advice, and the staff
judge advocate failed to address any of these errors in his addendum. I agree.
Whether an appellant was prejudiced requires that we consider whether the
convening authority “plausibly may have taken action more favorable to” the
appellant had the convening authority been provided accurate or more com-
plete information. United States v. Johnson, 

, 689 (A.C.M.R. 1988),
aff’d, 

(C.M.A. 1989) (mem.); see also United States v. Green, 

, 95 (C.A.A.F. 1996).
   “[I]n the context of a post-trial recommendation error,” which plainly oc-
curred here, “an appellant must make ‘some colorable showing of possible prej-
udice,’” United States v. Scalo, 

, 436–37 (C.A.A.F. 2005) (quoting
United States v. Kho, 

, 65 (C.A.A.F. 2000)), to meet his “burden to
establish that the error materially prejudiced a substantial right.” 

I am not persuaded that Appellant has met his burden even with the “low
threshold for material prejudice.” See 

(citation omitted).
    Appellant was sentenced to 20 months of confinement after pleading guilty
on the condition that the convening authority would not approve confinement
that exceeded 20 months. In clemency, Appellant stated he wished the confine-
ment could be reduced so that he could be reunited with his family. The con-
vening authority who approved this PTA condition and took action on Appel-
lant’s sentence submitted a declaration recalling that he believed at the time
that “the adjudged sentence was appropriate, in part because the adjudged
sentence included the same amount of confinement as was negotiated in the
pre-trial agreement.” And, at action, the convening authority believed the ad-
judged sentence was appropriate, that it was “reasonable based upon the of-
fense and the record of trial,” and he was confident he would have reached the
same conclusion even if he was made aware that he could have taken other
action. Recalling trial defense counsel’s assertion that Appellant would have
requested the convening authority to reduce the confinement if he had such


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                  United States v. Arnold, No. ACM 39479


authority, the convening authority declared, his “decision would not have
changed.” Upon consideration of Appellant’s clemency submission, the conven-
ing authority approved the sentence as adjudged. His declaration states that
he considered Appellant’s desire for reduced confinement at the time he took
action, and though he erroneously believed he did not have that authority, nev-
ertheless concluded that 20 months of confinement was appropriate.
    The majority is mostly dismissive of the convening authority’s uncontested
declaration, attributing consideration of it to unwarranted post hoc specula-
tion, and cautions that this court’s reliance on such a declaration places too
great a burden on integrity and the appearance of fairness. I am not similarly
dismissive. Taken as a whole, the declaration did not demonstrate an inelastic
predisposition to approve a sentence to confinement that was the same as the
limitation in the PTA. Nor is it cause to conclude that Appellant would have
fared better had the convening authority been properly advised. Rather, I take
from his declaration, and the ASJA’s, that based on what the convening au-
thority knew about Appellant’s case at the time he took action, if he had been
properly advised of his authority, he would have approved the sentence as ad-
judged because he believed the sentence was appropriate.
    Unlike the action our court set aside in United States v. Zegarrundo, 

, 613 (A.F. Ct. Crim. App. 2018), rev. denied, ___ M.J. ___, No. 19–
0407, 2019 CAAF LEXIS 741 (C.A.A.F. 8 Oct. 2019), because a colorable show-
ing of prejudice was established from procedural errors like these, in the case
at hand it is evident from post-trial declarations that Appellant was not prej-
udiced. Taking the convening authority at his word, and because Appellant
provides no new information on appeal, I conclude it was not plausible the con-
vening authority may have taken more favorable action had he been provided
accurate information about his full power to grant clemency. See 

. As Appellant has not demonstrated a colorable showing of possible
prejudice, see 

–37, I would not set aside the action but
would instead affirm the sentence as adjudged and approved by the convening
authority.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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