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

                               No. ACM S32338
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                           Markus A. MILNER
                Senior Airman (E-4), U.S. Air Force, Appellant
                           ________________________

           Appeal from the United States Air Force Trial Judiciary
                            Decided 7 February 2017
                           ________________________

Military Judge: Vance H. Spath (sitting alone)
Approved sentence: Bad-conduct discharge, confinement for 75 days, forfeiture
of $1,000.00 pay per month for four months, and reduction to E-1. Sentence
adjudged 16 July 2015 by SpCM convened at Seymour Johnson Air Force Base,
North Carolina.
For Appellant: Major Lauren A. Shure, USAF, and Captain Patricia Encar-
nación-Miranda, USAF.
For Appellee: Major Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire; and
Ms. Morgan L. Herrell (civilian intern). 1
Before DREW, J. BROWN, and MINK, Appellate Military Judges
Senior Judge J. BROWN delivered the opinion of the court, in which Chief
Judge DREW and Judge MINK joined.
                             ________________________
    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.



1Ms. Herrell was a law student extern with the Air Force Legal Operations Agency
and was at all times supervised by attorneys admitted to practice before this court
during her participation.
                   United States v. Milner, No. ACM S32338


                             ________________________
J. BROWN, Senior Judge:
    At a judge alone special court-martial, Appellant was convicted, consistent
with his pleas, of divers use of 3,4-methylenedioxymethamphetamine
(MDMA), a Schedule I controlled substance, and possession of MDMA, in vio-
lation of Article 112a, UCMJ, 10 U.S.C. § 912a. 2 The military judge sentenced
Appellant to a bad-conduct discharge, confinement for 75 days, forfeiture of
$1,000.00 pay per month for four months, and reduction to E-1. The convening
authority approved the sentence as adjudged.
    On appeal, Appellant asserts two errors: (1) that the staff judge advocate’s
recommendation (SJAR) contained erroneous advice regarding the convening
authority’s ability to grant clemency; and (2) that his post-trial confinement
conditions warrant relief under this court’s Article 66(c), UCMJ, 10 U.S.C. §
866(c), authority to approve only so much of the sentence that, based on the
entire record, “should be approved.” Finding no relief is warranted on either
issue, we affirm the findings and sentence.

                                I. BACKGROUND
    Appellant used MDMA on nine occasions from approximately 31 December
2013 to 1 March 2015. During this span, he used MDMA with other military
members at many different locations. In addition, on 15 April 2015, law en-
forcement seized two capsules from Appellant’s residence that later tested pos-
itive for MDMA. This was the basis for the possession of MDMA offense. Ap-
pellant pleaded guilty on 16 July 2015. He immediately began his confinement
at the Sampson County Detention Center in Clinton, North Carolina—a civil-
ian confinement facility.
    The staff judge advocate (SJA), in the SJAR, initially advised the convening
authority that, while he did have the authority to provide clemency as to for-
feiture of pay and the reduced rank, he did “not have the authority to disap-
prove, commute or suspend in whole or in part the confinement or punitive
discharge.” The SJA then recommended that the convening authority approve
the sentence as adjudged.
   In a 14 August 2015 clemency submission, Appellant’s trial defense counsel
asserted that, contrary to the SJAR, the convening authority did have the au-
thority to grant clemency as to the confinement portion of the sentence. Trial
defense counsel did not, however, assert that the convening authority had the



2As a condition of the pretrial agreement, prior to arraignment, the Government dis-
missed an additional specification of using lysergic acid diethylamide (LSD).


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                   United States v. Milner, No. ACM S32338


authority to set aside the conviction or punitive discharge, as some of Appel-
lant’s uses of MDMA occurred prior to 24 June 2014. Furthermore, trial de-
fense counsel complained of Appellant’s conditions of confinement and asserted
that the conditions were both a basis to grant clemency and constituted cruel
and unusual punishment that warranted the convening authority taking ac-
tion to investigate and correct. 3 Appellant requested that the convening au-
thority consider reducing his confinement.
    The Addendum to the SJAR did not reference or comment on either of these
alleged errors, and the recommendation to approve the sentence as adjudged
remained unchanged. The convening authority did not grant relief in clemency
and approved the sentence as adjudged.
    After the convening authority’s action, Appellant submitted a separate
complaint about the conditions of his confinement to the convening authority
and reviewing authorities. Members from the Seymour Johnson legal office
visited the facility and investigated the conditions. The General Court-Martial
Convening Authority concluded that the conditions did not violate Air Force
regulations and were not otherwise unlawful.

                                 II. DISCUSSION
    A. SJAR Errors
    Appellant alleges two errors in the SJAR: (1) that the SJA incorrectly
stated that the convening authority could not reduce Appellant’s confinement
and (2) that the SJA did not analyze and offer advice on the conditions of Ap-
pellant’s confinement in the SJAR Addendum.
    We review de novo alleged errors in post-trial processing. See United States
v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); United States v. Sheffield, 60 M.J. 591,
593 (A.F. Ct. Crim. App. 2004). Although the threshold for establishing preju-
dice in this context is low, the appellant must nonetheless make at least “some
colorable showing of possible prejudice.” United States v. Scalo, 60 M.J. 435,
436–37 (C.A.A.F. 2005) (quoting Kho, 54 M.J. at 65).
    1. Scope of Clemency Authority
    The Government concedes, and we agree, that the SJA erred when she ad-
vised the convening authority that he was not authorized to reduce the term of
confinement. In addition, the SJA presumptively erred when she also advised
the convening authority that he was prohibited from setting aside the findings


3On appeal, Appellant no longer asserts that the conditions constituted cruel and un-
usual punishment. Instead, he requests relief solely based upon this court’s unique
authority to approve only that portion of the sentence that “should be approved.”


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                    United States v. Milner, No. ACM S32338


or disapproving the adjudged punitive discharge. Nevertheless, we conclude
that any error did not prejudice Appellant.
    Failure to timely comment on matters in the SJAR, to include matters at-
tached to it, forfeits the issue unless there is plain error. Rule for Courts-Mar-
tial (R.C.M.) 1106(f)(6); Scalo, 60 M.J. at 436. Under a plain error analysis, the
appellant bears the burden of showing: (1) there was an error, (2) it was plain
or obvious, and (3) the error materially prejudiced a substantial right of the
appellant. Kho, 54 M.J. at 65.
    For offenses occurring prior to 24 June 2014, a convening authority has the
unfettered discretion to set aside findings or reduce adjudged sentences. Arti-
cle 60(c)(4)(A), UCMJ, 10 U.S.C. §860(c)(4)(A) (2013). 4 For offenses occurring
on or after that date, a convening authority’s power to grant clemency is sig-
nificantly reduced. Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A) (2014).
Congress clarified a year later that for courts-martial that include a conviction
for an offense committed both before and on/after 24 June 2014, the convening
authority has the unfettered discretion to grant clemency as provided in the
prior version of Article 60. Carl Levin and Howard P. ‘Buck’ McKeon 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 Air Force Instruction
(AFI) 51-201, Administration of Military Justice, ¶ 9.23.4 (6 June 2013) (as
modified by Air Force Guidance Memorandum 2015-01 (30 July 2015)).
    Here, Appellant was charged and pleaded guilty to a specification that al-
leged divers uses of MDMA that occurred both before and after 24 June 2014.
The SJA reasoned that, since the specification as alleged covered multiple uses
of MDMA through 2015, the misconduct as alleged was not complete until after
24 June 2014. Accordingly, the SJA determined that the prior version of Article
60 did not apply, and she advised the convening authority that he had only
limited authority to grant clemency. Appellant’s trial defense counsel, while
agreeing with the SJA that the new Article 60 applied, disagreed with how the
new Article 60 applied to the confinement portion of the sentence.
    It is not necessary for us to resolve whether the SJA’s interpretation was
correct, or even if it was not correct, whether it constituted plain error. Appel-
lant must still demonstrate a colorable showing of possible prejudice to prevail
on this issue. Whether an appellant was prejudiced by a mistake in the SJAR



4 The convening authority’s power under Article 60, UCMJ, 10 U.S.C. § 860, was re-
stricted as part of the National Defense Authorization Act for Fiscal Year 2014 (FY 14
NDAA), Pub. L. No. 113-66, § 1702(b), 127 Stat. 672, 955–57 (2013). Pursuant to sec-
tion 1702(d)(2), this amendment did not take effect until 24 June 2014, 180 days after
the FY 14 NDAA was enacted.


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                     United States v. Milner, No. ACM S32338


generally requires a court to consider whether the convening authority “plau-
sibly may have taken action more favorable to” the appellant had he or she
been provided accurate or more complete information. United States v. John-
son, 26 M.J. 686, 689 (A.C.M.R. 1988).
    The Government was able to demonstrate that any error did not prejudice
Appellant. The SJA submitted an affidavit conceding that her advice to the
convening authority was incorrect when she advised the convening authority
that he did not have the authority to dismiss the findings of guilt, or disap-
prove, commute, or suspend in whole or in part the confinement or punitive
discharge. 5 Regardless, the SJA asserted that even if the convening authority
had broader discretion, her recommendation would not have changed and she
still would have recommended that he approve the sentence as adjudged.
      Most importantly, the convening authority submitted an affidavit stating:
              Even with the knowledge that I may have had the authority
          to disapprove the findings and the authority to disapprove, com-
          mute, or suspend the adjudged sentence in whole or in part, my
          decision would not have changed. I would not have disapproved
          the findings of guilt, and I would not have disapproved, com-
          muted, or suspended the adjudged sentence.
   As Appellant is unable to demonstrate a colorable showing of prejudice, he
cannot prevail on this issue. See United States v. Smith, ACM 38845 (A.F. Ct.
Crim. App. 7 June 2016) (unpub. op.); United States v. Gould, ACM S32275
(A.F. Ct. Crim. App. 24 Feb. 2016) (unpub. op.); United States v. Collins, ACM
S32242 (A.F. Ct. Crim. App. 18 Aug. 2015) (unpub. op.).
      2. Failure to Comment on Conditions of Confinement Allegation
    Appellant’s trial defense counsel also raised the condition of Appellant’s
post-trial confinement in his clemency submission. In addition to arguing that
Appellant’s confinement conditions were a reason for the convening authority
to grant clemency, they asserted that the conditions of confinement were also
a violation of the Eighth Amendment 6 and Article 55, UCMJ, 10 U.S.C. § 855.
The SJA, in the Addendum to the SJAR, did not address this alleged legal er-
ror. While this omission was error, Appellant was not prejudiced.
   R.C.M. 1106(d) requires the SJAR to comment on any allegation of legal
error raised in clemency. When an accused asserts legal error in his post-trial




5It does not appear, however, that the Government concedes this point in this case,
and it is not necessary for us to resolve it in this opinion.
6   U.S. CONST. amend. VIII.


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                    United States v. Milner, No. ACM S32338


submissions, the SJAR must, at a minimum, include “a statement of agree-
ment or disagreement with the matter raised by the accused.” R.C.M.
1106(d)(4).
    Distinguished from their role in clemency, the role of the convening author-
ity with respect to defense claims of legal error “is less pivotal to an accused’s
ultimate interests.” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997).
The convening authority can, and should in the interest of fairness and effi-
ciency of the system, remedy legal error. The convening authority is not, how-
ever, required to do so. Id. The failure to address a defense claim of legal error
in an addendum to an SJAR can be remedied through appellate litigation of
the claimed error. Id. Consequently, it is appropriate for this court to consider
whether any prejudice may have resulted from the failure to address the de-
fense claims of legal error. United States v. Welker, 44 M.J. 85, 89 (C.A.A.F.
1996). An appellate finding that those alleged errors have no merit precludes
a finding that the SJA’s advice prejudiced the appellant. Hamilton, 47 M.J. at
36; Scalo, 60 M.J. at 436.
    Appellant does not argue how he was prejudiced by the omission of this
purported legal error, and though Appellant could renew on appeal his asser-
tion that the conditions constituted a violation of the Eight Amendment and
Article 55, he chose not to do so. 7 Furthermore, in addition to the alleged legal
error, it was clear from the clemency submission that the convening authority
should also consider Appellant’s conditions of post-trial confinement generally
in determining whether to grant clemency and whether to initiate an investi-
gation into those conditions. Consequently, Appellant is unable to demonstrate



7 Both the Eighth Amendment and Article 55, UCMJ, 10 U.S.C. § 855, prohibit cruel
and unusual punishment. In general, we apply “the Supreme Court’s interpretation of
the Eighth Amendment to claims raised under Article 55, except in circumstances
where . . . legislative intent to provide greater protections under [Article 55, UCMJ,]”
is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citing United
States v. Wappler, 9 C.M.R. 23, 26 (C.M.A. 1953)). “[T]he Eighth Amendment prohibits
two types of punishments: (1) those ‘incompatible with the evolving standards of de-
cency that mark the progress of a maturing society’ or (2) those ‘which involve the
unnecessary and wanton infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215
(C.A.A.F. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). A violation of
the Eighth Amendment is shown by demonstrating: “(1) an objectively, sufficiently se-
rious act or omission resulting in the denial of necessities; (2) a culpable state of mind
on the part of prison officials amounting to deliberate indifference to [the appellant’s]
health and safety; and (3) ‘that [the appellant] has exhausted the prisoner-grievance
system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 U.S.C. §
938.’” Id. (quotation marks and footnotes omitted). Applying these standards de novo,
United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001), we find no Eighth Amend-
ment or Article 55 violation.


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                  United States v. Milner, No. ACM S32338


that the SJA’s error in failing to address this purported error prejudiced Ap-
pellant.
   B. Post-trial Confinement Conditions
    At the close of Appellant’s trial, he entered confinement at the Sampson
County Detention Center in Clinton, North Carolina. As we previously noted,
Appellant does not contend that the conditions of his post-trial confinement
amounted to cruel or unusual punishment in violation of the Eighth Amend-
ment or Article 55. Instead, Appellant alleges that the conditions of his con-
finement were so egregious as to warrant sentence relief under Article 66(c).
See United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015) (providing
sentence relief for post-trial confinement conditions that did not constitute a
violation of either the Constitution of the United States or Article 55).
    In a sworn declaration, Appellant states that he was kept in an area of the
detention center that was used exclusively for Air Force prisoners; he was only
permitted to leave the cell for recreation time or for showers; he was not given
any recreation time for the first 25 days, and thereafter only two hours per
week; and he was only allowed to shower twice per week. He also told his trial
defense counsel, as reflected in his trial defense counsel’s affidavit, that once
he figured out how to submit requests for extra showers and phone calls, things
got progressively better. Appellant also submitted an affidavit reflecting his
counsel’s telephonic discussion with Sergeant BS from the detention center
who clarified that Air Force prisoners are housed in the same unit used for
prisoners in protective custody, they receive the same treatment as those in
protective custody, Air Force members neither reside nor interact with prison-
ers in the general population, and the cell size is the same as general popula-
tion prisoners. Sergeant BS also told Appellant’s counsel that while it is hypo-
thetically possible for the detention center to maintain a general population-
type pod where there were no foreign nationals, it would take some work.
    In response, the Government submitted an affidavit from the representa-
tive from the Seymour Johnson legal office who investigated Appellant’s com-
plaints about the conditions of confinement. The inmates in that housing area
shower twice weekly, though Air Force prisoners are permitted to request
showers more frequently. Recreation time is normally done in conjunction with
each time they shower. Air Force confinees may also request additional phone
calls. The conditions of confinement for Appellant were less restrictive than
the conditions for those who are in solitary confinement as those inmates are
not granted showers, recreational time, and phone calls at the frequency per-
mitted for Air Force prisoners. The Government also provided this court the
inmate handbook, photographs from the detention facility, and the inmate log
book.



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                   United States v. Milner, No. ACM S32338


    In Gay, the case that Appellant cites to as support for relief, this court em-
ployed its Article 66(c) authority to grant the appellant sentencing relief even
in the absence of cruel or unusual punishment in violation of the Eighth
Amendment and Article 55. 74 M.J. at 742. In reviewing that decision, our
superior court held that, based on the unique facts of that case, this court did
not abuse its discretion in doing so. United States v. Gay, 75 M.J. 264, 269
(C.A.A.F. 2016). However, our superior court also noted that Gay involved
unique facts driven by legal errors in the post-trial process that included both
a violation of the appellant’s rights under Article 12, UCMJ, 10 U.S.C. § 812,
and the ordering of solitary confinement by an Air Force official where an al-
ternative solution was available. Id. Significantly, our superior court empha-
sized, “In reaching this conclusion, we do not recognize unlimited authority of
the Courts of Criminal Appeals to grant sentence appropriateness relief for any
conditions of post-trial confinement of which they disapprove.” Id.
    We anticipate that only in very rare circumstances will this court exercise
our Article 66(c) authority to grant sentence relief based upon conditions of
post-trial confinement when we have found no violation of the Eighth Amend-
ment or Article 55. United States v. Garcia, No. ACM 38814 (A.F. Ct. Crim.
App. 16 Aug. 2016) (unpub. op.); cf. United States v. Nerad, 69 M.J. 138, 145–
47 (C.A.A.F. 2010) (holding that despite our significant discretion in reviewing
the appropriateness of a sentence, this court may not engage in acts of clem-
ency.) This case does not present such a rare circumstance. We elect not to
grant relief under our Article 66(c) authority.
    After reviewing all of the submitted matters, we are not persuaded that the
conditions of Appellant’s post-trial confinement rise to the level of being so op-
pressive or disgraceful as to warrant sentence relief. There is no evidence he
was subjected to physical or mental abuse, singled out for unusual treatment,
denied necessary medical attention, or refused any other necessity. Despite
Appellant’s characterizations, circumstances of his confinement do not appear
to involve the extreme segregation often associated with solitary confinement.
Nor is there evidence the conditions of his confinement impacted his access to
counsel or any other post-trial due process right. Additionally, his allegations
were thoroughly investigated by the reviewing authorities and resolved
against him. Therefore, we find the extraordinary use of our Article 66(c) power
to grant sentence relief is not warranted.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




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             United States v. Milner, No. ACM S32338


Accordingly, the approved findings and sentence are AFFIRMED.


            FOR THE COURT



            KURT J. BRUBAKER
            Clerk of the Court




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