United States v. Behunin ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32684
________________________
UNITED STATES
Appellee
v.
Mellodee L. BEHUNIN
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 18 July 2022
________________________
Military Judge: Shadd R. Kidd.
Sentence: Sentence adjudged on 14 January 2021 by SpCM convened at
Dyess Air Force Base, Texas. Sentence entered by military judge on 30
January 2021: Bad-conduct discharge, confinement for 110 days, forfei-
ture of $1,100.00 pay per month for 4 months, and reduction to E-1.
For Appellant: Major Matthew L. Blyth, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Brian
E. Flanagan, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Senior Judge POSCH delivered the opinion of the court, in which Judge
RICHARDSON and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Behunin, No. ACM S32684
POSCH, Senior Judge:
A special court-martial composed of a military judge sitting alone convicted
Appellant, pursuant to her pleas, of one specification each of fraudulent enlist-
ment, making a false official statement, wrongful use of cocaine, and wrongful
use of lysergic acid diethylamide (LSD) in violation of Articles 83, 107, and
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 883, 907, and
912a.1 Appellant entered pleas in accordance with a plea agreement she made
with the convening authority who referred the charges and specifications to
trial by court-martial.
At Appellant’s court-martial, the military judge accepted her pleas and an-
nounced findings of guilty to the charged offenses. Appellant was sentenced to
a bad-conduct discharge, confinement for 110 days, forfeiture of $1,100.00 pay
per month for four months, and reduction to the grade of E-1. The plea agree-
ment limited confinement to five months for each offense, running concur-
rently. In post-trial processing, the convening authority took no action on the
sentence, and the military judge entered the findings and sentence as the judg-
ment of the court-martial.
On appeal, Appellant asks whether (1) Appellant’s sentence is inappropri-
ate in light of a sentence received by another junior enlisted Airman, CM, for
essentially the same misconduct; (2) trial counsel committed plain error by ar-
guing facts not in evidence; and (3) the convening authority erred by failing to
act on the sentence. We have considered issue (2) and find it does not require
discussion or warrant relief. See United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987). After examining the remaining issues, we find no error materi-
ally prejudicial to Appellant’s substantial rights occurred. Concluding that the
findings and sentence are correct in law and fact, and should be approved, we
affirm the findings and sentence.
I. BACKGROUND
Each of the four convictions under review are founded on Appellant’s judi-
cial admissions to using controlled substances before and after she entered mil-
itary service. As a factual basis for accepting her pleas of guilty, the military
judge relied on a stipulation of fact between Appellant, Appellant’s counsel,
1 Reference to Article 83, UCMJ, Fraudulent enlistment, appointment, or separation,
is to the Manual for Courts-Martial, United States (2016 ed.) (2016 MCM). References
to Articles 107 and 112a, UCMJ, are to the Manual for Courts-Martial, United States
(2019 ed.) (2019 MCM). Except where noted, all other references to the UCMJ and the
Rules for Courts-Martial (R.C.M.) are to the 2019 MCM.
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United States v. Behunin, No. ACM S32684
and trial counsel in addition to Appellant’s sworn statements during the prov-
idence inquiry.2 The following summarizes relevant portions of those admis-
sions.
As part of her application to enter the United States Air Force, Appellant
lied about her pre-enlistment use of cocaine. She signed an Air Force Form
2030 (AF Form 2030),3 falsely stating she had never used any illegal drug or
narcotic. Appellant then enlisted in the Air Force effective 24 April 2018, and
entered active duty on 7 August 2018. During the providence inquiry, Appel-
lant admitted she used cocaine “one time prior to [her] enlistment.” Appellant
told the military judge she completed the AF Form 2030 on the advice of her
recruiter to whom she disclosed her pre-service drug use. Upon questioning by
the military judge, Appellant recalled her recruiter explaining that her drug
use was “going to hurt [her] chances of getting in.” At that time and according
to Appellant, the recruiter advised her to complete the form in a manner which
reflected no prior illegal drug use.4 Appellant admitted her “enlistment was
procured by the false representation” she made on the form. Appellant’s mis-
representation was the basis for her fraudulent enlistment conviction.
Appellant arrived at her permanent duty station, Dyess Air Force Base
(AFB), Texas, on 24 November 2018. In May 2020 she and three other junior
enlisted Airmen, CM, MS, and SM, discussed using LSD. Later that month, at
the end of a long weekend, Appellant and the others used LSD during a party
at CM’s off-base apartment.5 One of the Airmen, MS, initially voiced reserva-
tion about using the drug because she had never used drugs before and would
be taking her Career Development Course exams after the weekend. According
to a statement that MS made under a grant of immunity, and as stipulated by
Appellant, Appellant tried to convince MS to do it anyway, and together with
encouragement from SM, MS decided to use LSD. Appellant also stipulated
that a statement was given to law enforcement by another junior enlisted Air-
man who witnessed a conversation at a pool party a few weeks after the long
weekend discussed above. As stipulated by Appellant, the witness stated in her
interview that she heard Appellant, CM, MS, and SM talking about using LSD
2 Before placing Appellant under oath, the military judge explained her statements
may be used in sentencing. Appellant acknowledged she understood.
3 Air Force Form 2030, USAF Drug and Alcohol Abuse Certificate (15 Aug. 2017).
4 Appellant satisfied the military judge that she was not under duress when completing
the form in the way that she did. In her telling, “At the end of the day, I chose and I
still had that choice. [The recruiter] never took that choice away from me.”
5 Appellant stipulated “[e]ither” CM or SM “mentioned he had LSD and if [Appellant]
and [MS] wanted to use the LSD, they could.”
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United States v. Behunin, No. ACM S32684
a few weeks earlier. Appellant’s conduct in CM’s apartment in May 2020 was
the basis for her conviction for wrongful use of LSD.
Among peers, Appellant was known to talk about using cocaine before she
was in the military and wanting to use it again. In that regard, Appellant stip-
ulated that a military peer stated in witness interviews with the Government
that Appellant was heard “comment[ing] that she spent money she earned
from her high school job on cocaine.” As stated by the peer, Appellant made
this remark “around several other Airmen.” According to another statement
that MS made under a grant of immunity, and also as stipulated by Appellant,
MS and Appellant had a conversation in which they talked about wanting to
use cocaine: MS brought up the subject that she wanted to try the drug and
Appellant opined “that it makes you happier.”
Appellant and MS had that opportunity on 6 June 2020, when they used
cocaine with the same group of friends who used LSD in May. This time Ap-
pellant used the drug during a party at MS’s off-base apartment. During the
gathering, CM, accompanied by SM, left to purchase the cocaine from a civilian
supplier. When they returned, both civilian and military personnel were pre-
sent. Appellant and the three other Airmen went to MS’s bedroom where they
paid for and used the drug. They did so after CM arranged four lines of powder.
Appellant first put some cocaine in her mouth and rubbed it on her gums “to
try it.” Appellant and the other Airmen took turns snorting the lines through
a rolled-up ten-dollar bill. Other Airmen who were at the apartment suspected
Appellant, CM, MS, and SM had used drugs at the party. MS’s roommate, also
a junior enlisted Airman, reported his suspicion to military officials, and an
investigation ensued. Appellant’s conduct in MS’s apartment on 6 June 2020
was the basis for her conviction for wrongful use of cocaine.
Special agents of the Air Force Office of Special Investigations (AFOSI) par-
ticipated in the investigation of Appellant and her friends. As part of that in-
vestigation, Appellant was advised and waived rights afforded her by Article
31, UCMJ, 10 U.S.C. § 831. Appellant told AFOSI agents she used cocaine on
6 June 2020, but she also lied to the agents, falsely stating that she “had never
used cocaine before.” During the providence inquiry with the military judge,
Appellant admitted this statement was false because she “had used cocaine on
one other occasion before 6 June 2020.” As reason for lying, Appellant ex-
plained she “didn’t want to contradict [her]self with the paperwork that [she]
had signed when [she] joined” the Air Force. In her telling, she “was thinking
about [her] recruiter and what he had said to [her]” when she signed the en-
listment paperwork. Appellant’s statement to the AFOSI agents was the basis
for her conviction for making a false official statement.
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United States v. Behunin, No. ACM S32684
A. Sentence Review
In Appellant’s first assignment of error, she urges the court to reduce her
sentence, explaining that a “co-actor,” CM, “received less confinement, less for-
feitures, and no punitive discharge for essentially the same misconduct.” Ap-
pellant contends that “in light of this highly disparate sentence,” the adjudged
punitive discharge is inappropriate and should not be approved.
Before examining Appellant’s contention, we consider whether Appellant’s
sentence is inappropriate without regard to sentences adjudged in other cases,
such as CM’s. In that regard, we are mindful that sentence comparison is but
one aspect of evaluating whether a sentence is inappropriate. United States v.
Anderson, 67 M.J. 703, 707–08 (A.F. Ct. Crim. App. 2009) (per curiam).
1. Sentence Appropriateness Review
a. Additional Background
During the providence inquiry, Appellant told the military judge that the
Air Force recruiter was aware of her illegal drug use because Appellant told
him about it. Specifically, Appellant stated that she was advised by her re-
cruiter to answer the question on AF Form 2030, “Have you ever experimented
with, used, or possessed, any illegal drug or narcotic,” by initialing the block
“No.” In Appellant’s telling, “That was what he said throughout the entire en-
listment process. I do recognize that it was still my decision at the end of the
day, and I still initialed ‘No,’ even though I had used before.” The military judge
asked, “So, you, basically told your recruiter the truth, . . . but he told you,
‘That’s going to hurt your chances of getting in, so you should initial ‘No,’ and
then you chose to do that?” Appellant responded in the affirmative, explaining
“I was just going through a lot at the time and I just wanted to get out of my
hometown. And I knew that if I initialed the ‘Yes,’ that possibly could make it
to where I couldn’t [enlist in the Air Force].”
Appellant’s Air Force recruiter testified in the Government’s sentencing
case. He remembered meeting with Appellant,6 but he maintained that she did
not disclose to him that she had used cocaine. He explained why he would not
encourage anyone to lie on an AF Form 2030: “[i]t’s morally wrong as well as
[his] career is not worth risking.” He explained, moreover, that personnel at
the Military Entrance Processing Station (MEPS) will re-interview individuals
about their drug history. Recruiters can be penalized for intentionally sending
6 The recruiter recalled Appellant “was one of the few individuals that [he] had to drive
to meet with. She live[d] about two and-a-half hours away. So, [he] remember[ed her],
specifically, because [they] would meet a lot of the time, halfway in-between [his] loca-
tion and hers, or at her school.”
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United States v. Behunin, No. ACM S32684
a disqualified individual to the MEPS. The Government’s sentencing case in-
cluded a letter of counseling (LOC) attached to the stipulation of fact. The LOC
referenced Appellant’s lack of attention to detail in performing assigned duties,
for which Appellant also had been counseled on a previous occasion.
Appellant’s sentencing case included pictures of her family and testimony
of her mother. Her mother explained that Appellant was close to her two
younger siblings, a brother and sister. Appellant had to work hard to earn good
grades in school, and Appellant experienced “conflicted emotion[s]” when her
biological father died when she was ten years of age. Appellant’s sentencing
case also consisted of two character letters, two letters of appreciation, and
recognition she earned as her unit’s “Professional of the Month” in her two and
a half years of military service.
Appellant provided oral and written unsworn statements, explaining her
parents divorced when she was eight years old, and her father passed away
from a heart attack shortly thereafter. Her mother remarried when Appellant
was in middle school, and her stepfather began making sexual advances to-
wards Appellant, which later contributed to her decision to leave home. Appel-
lant was an honors student in high school. She was accepted to Portland State
University, but decided to enlist “to get out of [her] hometown.” Appellant ex-
plained she began using drugs when she was assigned to Dyess AFB owing to
negative influence of an individual who “was involved in drugs and had access
to drugs.” She felt lonely upon arrival at Dyess AFB, a problem that was mag-
nified during the charged timeframe as she worked remotely during the coro-
navirus disease pandemic.
b. Law and Analysis
A Court of Criminal Appeals (CCA) reviews de novo the question whether
all or part of a sentence is inappropriate. See United States v. Lane, 64 M.J. 1,
2 (C.A.A.F. 2006). In conducting this review, a CCA may affirm only “the sen-
tence or such part or amount of the sentence” as it finds “correct in law and
fact and determines, on the basis of the entire record, should be approved.”
Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1). It follows that a sentence should
be approved only to the extent it is found appropriate based on a CCA’s review
of the entire record.
“We assess sentence appropriateness by considering the particular appel-
lant, the nature and seriousness of the offense[s], the appellant’s record of ser-
vice, and all matters contained in the record of trial.” United States v. Sauk, 74
M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (en banc) (per curiam) (alteration in
original) (quoting Anderson, 67 M.J. at 705). Although we are empowered to
“do justice” in reference to a legal standard, we have no discretion to grant
6
United States v. Behunin, No. ACM S32684
mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omit-
ted).
We have considered the particular circumstances of Appellant’s case, in-
cluding her convictions for use of illegal drugs, fraudulent enlistment, and false
official statement. We have also considered the extenuation and mitigation ev-
idence presented. In that regard, we credit the testimony of the recruiter over
Appellant’s statements made under oath in the providence inquiry.7 We also
considered the LOC as some indication of Appellant’s duty performance. We
have given individualized consideration to Appellant, the nature and serious-
ness of the offenses, Appellant’s record of service, and all other matters con-
tained in the record below. Without regard to sentences adjudged in other
cases, we conclude that Appellant’s sentence consisting of a bad-conduct dis-
charge, confinement for 110 days, forfeiture of $1,100.00 pay per month for four
months, and reduction to the grade of E-1, is not inappropriate.
2. Sentence Disparity Claim
Next, we examine Appellant’s contention that a bad-conduct discharge is
not among the punishments that “should be approved,” Article 66(d)(1), UCMJ.
Appellant reasons that CM received neither confinement nor a punitive dis-
charge despite his greater culpability in that CM was also convicted of wrong-
fully distributing the illegal substances relevant here.
Appellant’s case presents a similar situation as United States v. Durant, 55
M.J. 258 (C.A.A.F. 2001). In that case, the United States Court of Appeals for
the Armed Forces (CAAF) considered whether a Court of Criminal Appeals has
a duty to “mitigate a sentence, which that court otherwise determines to be
appropriate,” based upon a sentence adjudged in another case. Id. at 259. In
its decree, the CAAF concluded “that the Court of Criminal Appeals did not
abuse its discretion in reviewing appellant’s sentence for appropriateness and
uniformity” Id. at 263 (emphasis added).8
Unlike the appellant in Durant, however, Appellant raises the issue of sen-
tence disparity for the first time on appeal, and the Government objects to our
7 “Unlike most intermediate appellate courts and [the United States Court of Appeals
for the Armed Forces (CAAF)], the Court of Criminal Appeals has factfinding powers.”
United States v. Cendejas, 62 M.J. 334, 342 (C.A.A.F. 2006) (citing Article 66, UCMJ,
10 U.S.C. § 866).
8 The Durant decree might suggest that a CCA’s review for relative uniformity is sep-
arate and distinct from evaluating whether a sentence is inappropriate. Elsewhere,
however, the opinion treats a CCA’s uniformity review as one component of that eval-
uation. 55 M.J. 258, 261 (C.A.A.F. 2001) (stating, for example, that “[t]he military jus-
tice system promotes sentence uniformity through Article 66[, UCMJ,] and the require-
ment that the [CCAs] engage in a sentence appropriateness analysis”).
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United States v. Behunin, No. ACM S32684
examination of extra-record results of other courts-martial such as CM’s. In
the analysis that follows, we (a) examine the factual background to Appellant’s
assignment of error; (b) assess the Government’s objection to our considering
extra-record information; (c) evaluate CM’s convictions and sentence in rela-
tion to Appellant’s; and (d) consider sentences imposed upon CM, MS, and SM
to determine whether Appellant’s bad-conduct discharge “should be approved,”
Article 66(d)(1), UCMJ. Ultimately, we conclude that relief is not warranted
for Appellant’s claim of sentence disparity.
a. Additional Background
After securing convictions of MS and SM for their wrongful use of a con-
trolled substance, the Government prosecuted Appellant. CM’s court-martial
convened after Appellant’s and he was the last of the four Airmen of the group
to be tried and sentenced. During post-trial processing, Appellant did not as-
sert relief was warranted on the basis that her sentence was disproportionate
in relation to MS and SM. Because CM had yet to be tried or sentenced, the
entry of judgment for his court-martial was not available to Appellant when
she sought clemency from the convening authority.9
After Appellant’s case was submitted to the court, Appellant brought infor-
mation to our attention about the special courts-martial of CM, MS, and SM.
After docketing, Appellant moved to attach the entries of judgment for CM and
MS, and a “[c]ourt-martial summary” for SM.10 Over the Government’s opposi-
tion, we granted the motion by order of the court. In doing so, we deferred de-
ciding whether we are authorized to consider the results in those cases until
we performed our Article 66, UCMJ, 10 U.S.C. § 866, review of Appellant’s
case. This is that review.
According to the entry of judgment issued after CM’s court-martial, CM
was the only Airman of the four who chose to be sentenced by a panel of mem-
bers. Like Appellant, CM pleaded guilty and was convicted of fraudulent en-
listment, false official statement, wrongful use of LSD, and wrongful use of
cocaine. The gravamen of CM’s fraudulent enlistment conviction, like Appel-
lant’s, was preservice drug use. However, the basis for his false official state-
ment conviction was slightly different. Whereas Appellant lied to AFOSI
9 As noted above, Appellant was sentenced on 14 January 2021. The convening author-
ity issued his Decision on Action memorandum on 29 January 2021, and the military
judge entered judgment on 30 January 2021. Subsequently, CM was sentenced on 18
February 2021 and judgment entered on 4 March 2021.
10 The summary showed results from “The Judge Advocate General’s Corps Air Force
Docket,” on a “Public Docket” Internet web page.
8
United States v. Behunin, No. ACM S32684
agents about preservice drug use, CM’s false statement to investigators was
that “he never saw or used any drugs on the evening of 6 June 2020.”11 Unlike
Appellant, CM also pleaded guilty and was convicted of the additional offenses
of wrongful distribution of LSD and cocaine. For these six offenses, members
sentenced CM to hard labor without confinement for three months, forfeiture
of $500.00 pay per month for three months, and reduction to the grade of E-1.
Neither confinement nor a punitive discharge was imposed.
Unlike the Government’s prosecution of Appellant and CM, MS and SM
garnered only one conviction each after pleading guilty to wrongfully using a
controlled substance. Both MS and SM received a sentence that included con-
finement, and neither received a punitive discharge. According to the entry of
judgment in MS’s case, MS was found guilty of one specification of using co-
caine in violation of Article 112a, UCMJ. A military judge sentenced her to
serve 70 days of confinement, to forfeit $1,200.00 pay per month for 3 months,
and to be reduced to the grade of E-1. According to the summary for SM, he
was found guilty of one specification. The summary reads, “Wrongful Use of
Schedule I, II or III drugs” in violation of Article 112a, UCMJ. The summary
does not further specify the controlled substance that SM used. A military
judge sentenced SM to serve 75 days of confinement, to forfeit $1,000.00 pay
per month for 2 months, and to be reduced to the grade of E-1.
b. Extra-Record Results of Other Courts-Martial
We begin our analysis of Appellant’s first assignment of error with the Gov-
ernment’s opposition to our consideration of extra-record results of the special
courts-martial of CM, SM, and MS to compare with Appellant’s sentence. As
noted above, we deferred answering the question whether we could consider
those results until our Article 66, UCMJ, review. In the present case, we will
assume for purposes of this appeal only that we may consider this information,
but not without caution. For now, we follow the opinions of other panels of this
court that have rejected the Government’s contention that outside-the-record
information cannot be used in the manner Appellant argues it should.12
11 According to Appellant’s stipulation of fact, CM’s conviction was related to a party
at MS’s apartment on 6 June 2020 when all four Airmen used cocaine.
12 See United States v. Marable, No. ACM 39954, 2021 CCA LEXIS 662, at *26–27 (A.F.
Ct. Crim. App. 10 Dec. 2021) (unpub. op.), rev. denied,___ M.J. ___, No. 22-0107, 2022
CAAF LEXIS 244 (C.A.A.F. 29 Mar. 2022); United States v. Daniel, No. ACM S32654,
2021 CCA LEXIS 365, at *5, n.4 (A.F. Ct. Crim. App. 26 Jul. 2021) (unpub. op.), rev.
denied, 82 M.J. 99 (C.A.A.F. 2021); United States v. Cruspero, No. ACM S32595 (f rev),
2021 CCA LEXIS 208, at *7, n.2 (A.F. Ct. Crim. App. 30 Apr. 2021) (unpub. op.), rev.
denied, 82 M.J. 15 (C.A.A.F. 2021). The Government maintains these opinions stand
in conflict with the CAAF precedent.
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United States v. Behunin, No. ACM S32684
Relying on a line of cases beginning with United States v. Fagnan, the Gov-
ernment contends that a CCA may only consider what is contained in the rec-
ord below when reviewing a sentence under Article 66, UCMJ. 30 C.M.R. 192,
194 (C.M.A. 1961) (observing that “the board of review is expressly restricted
by Congress to the ‘entire record’ in assessing the appropriateness of the sen-
tence”). The Government is correct that the record of proceedings, including
post-trial processing, does not include sentences in other cases as may be com-
pared with Appellant’s. It follows that if matters we ordered attached to the
appellate record may not be considered, then there is insufficient information
to decide whether Appellant’s sentence is disparate compared to CM’s as
claimed.
Even now, a CCA’s consideration of material outside the record13 is not
without concern. Over a half-century after Fagnan, the CAAF cautioned “CCAs
may not consider anything outside of the ‘entire record’ when reviewing a sen-
tence” under Article 66, UCMJ. United States v. Jessie, 79 M.J. 437, 441
(C.A.A.F. 2020). Bearing in mind our responsibility to review a sentence under
this article, “[t]he ‘entire record’ restriction . . . applies equally whether the
CCA is reviewing a sentence’s correctness in law, reviewing a sentence’s cor-
rectness in fact, or determining whether a sentence should be approved.” Id. at
444 (footnote omitted). In United States v. Willman, the CAAF reaffirmed that
CCAs “could not consider evidence outside the record to determine sentence
appropriateness” under Article 66, UCMJ. 81 M.J. 355, 361 (C.A.A.F. 2021).
In reliance on Willman and Jessie, the Government argues that SM and
MS had already been sentenced when Appellant sought clemency from the con-
vening authority and that Appellant did not mention their sentences, much
less argue sentence disparity, in clemency.14 The Government argued in its op-
position to Appellant’s motion to attach that an appellant should be required
to question sentence disparity at the time “when the underlying facts are avail-
able to the [appellant] before the entry of judgment.” Notably absent from this
line of reasoning is that Appellant seeks to compare her case with CM’s, and
not SM’s or MS’s. However, because of the order in which the three cases were
13 The entire record includes both the record below and matters attached to the record.
See United States v. Jessie, 79 M.J. 437, 440–41 (C.A.A.F. 2020) (citing United States
v. Healy, 26 M.J. 394, 396 (C.M.A. 1988)); see also R.C.M. 1112(b), Contents of the rec-
ord of trial; R.C.M. 1112(f), Attachments for appellate review. In addition, the “entire
record” includes briefs and arguments that appellate counsel and an appellant person-
ally present regarding matters that are already in the record or have been attached to
the record. Jessie, 79 M.J. at 440–41.
14 As discussed later in our opinion, the focus of Appellant’s 20 January 2021 clemency
submission was reduction in confinement due to concerns about coronavirus disease
transmission in Texas prisons.
10
United States v. Behunin, No. ACM S32684
prosecuted in relation to Appellant’s, her first chance to supplement the record
and claim disparity between CM’s sentence and her own is on appeal. If neces-
sity were our guide, this practical fact would lead us to reject at once the Gov-
ernment’s contention.
Appellant contends Jessie has no bearing on, much less disturbs, this
court’s responsibility to engage in sentence comparison under Article 66,
UCMJ. Appellant further contends that Jessie allows a CCA to consider the
matters submitted for our consideration, which we attached to the appellate
record. We agree with Appellant that our superior court’s precedent in regard
to a CCA’s responsibility to review for sentence appropriateness necessarily
involves comparing one case against others, which may imply consideration of
outside-the-record results in other cases.
Yet, Appellant cites no precedent, and we find none, in which this court or
our superior court recognized an exception to allow extra-record information
about results in a related case that formed no part of the record. If anything,
the contrary is true. Between the bookends of Fagnan, on the one hand, and
Jessie and Willman, on the other, our superior court is steadfast that a CCA’s
sentence appropriateness review is limited to the record. In that regard,
“[w]hat constitutes the ‘entire record’ for review of sentence appropriateness
has been understood to include not only evidence admitted at trial, but also the
matters considered by the convening authority in his action on the sentence.”
United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (first citing United
States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973); and then citing Fagnan, 30
C.M.R. at 195). Likewise, the CAAF “has held that Article 66[, UCMJ,] limits
the Courts of Criminal Appeals ‘to a review of the facts, testimony, and evi-
dence presented at the trial, and precludes a Court of Criminal Appeals from
considering ‘extra-record’ matters when making determinations of guilt, inno-
cence, and sentence appropriateness.’” United States v. Holt, 58 M.J. 227, 232
(C.A.A.F. 2003) (quoting United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.
1997)) (additional citations omitted).
For the reasons that follow, we nonetheless assume for the purpose of this
appeal that Appellant’s specific contention—that sentence disparity claims are
unique—is not inconsistent with Jessie, particularly aspects of that decision
where the CAAF observed that some of its “precedents have permitted the
CCAs to supplement the record.” 79 M.J. at 440. One line of precedent allows
a CCA to consider information that is outside the record “when necessary for
resolving claims of ineffective assistance of trial defense counsel and a wide
variety of other issues when those claims and issues are raised by the record
but are not fully resolvable by the materials in the record.” Id. at 442 (emphasis
added). In reference to its decisions that developed this line of precedent, the
CAAF concluded “[t]hose decisions also could not be easily cabined” and
11
United States v. Behunin, No. ACM S32684
thereby kept within narrow limits. Id. at 445. In the present case, Appellant’s
disparity claim is arguably among the “variety of other issues . . . not fully re-
solvable by the materials in th[is] record.” Id. at 442 (observing the CAAF has
“justified the exception to the strict language” of Article 66, UCMJ, “on grounds
of precedent and necessity”). It follows that if the disparity issue is raised by
the record, but not fully resolvable by the record, then it would be necessary
for the court to review one or more other sentences to resolve her claim.
We assume, also, that the issue is raised by the record. The gravamen of
Appellant’s misconduct was wrongful use of controlled substances both before
and after her entry on active duty. The complicity of CM, SM, and MS in rela-
tion to Appellant was first raised in Appellant’s stipulation of fact, and each
Airman was mentioned either in the providence inquiry or sentencing evi-
dence. We shoulder this assumption despite the fact that the issue of disparity
with CM’s sentence was not identified until after Appellant’s case was docketed
with the court. In that regard, however, the same could be said of claims of
constitutionally deficient representation that are raised by the record when
such issues are first identified on appeal. And yet, it is clearly permissible to
allow a record to be supplemented when such claims are raised for the first
time on direct review. In Jessie, for example, the CAAF observed that an ap-
pellant’s assertion that he received ineffective assistance from trial defense
counsel is a sufficiently “legitimate and salutary reason[ ]” for a CCA “to have
the discretion to obtain evidence by affidavit, testimony, stipulation, or a fact-
finding hearing, as it deems appropriate.” Id. at 446 (quoting United States v.
Boone, 49 M.J. 187, 193 (C.A.A.F. 1998)).
In the present case, necessity could compel a similar result as it does for
claims of ineffective assistance of trial defense counsel. This especially may be
true where an appellant challenges a sentence that is comparatively disparate
in reference to a sentence that was adjudged after her opportunity to seek clem-
ency has passed. Such result, moreover, would be consistent with interpreta-
tions of our statutory jurisdiction. To that end, both the CAAF and its prede-
cessor, the United States Court of Military Appeals, have examined the legis-
lative history of Article 66, UCMJ, which is at the core of this court’s authority
to compare sentences as part of a CCA’s review for sentence appropriateness.
Those examinations rely on a clear congressional purpose that envisioned
Boards of Review—now CCAs—might redress disparities in court-martial sen-
tences on direct review:
Congress enacted Article 66 of the Uniform Code of Military Jus-
tice with the purpose of establishing uniformity of sentencing
throughout the armed forces. “The Board [of Review] may set
aside, on the basis of the record, any part of a sentence either
12
United States v. Behunin, No. ACM S32684
because it is illegal or because it is inappropriate. It is contem-
plated that this power will be exercised to establish uniformity of
sentences throughout the armed forces. (See Art. 67(g) [(1950)].)”
United States v. Henry, 42 M.J. 231, 234 (C.A.A.F. 1995) (alterations in origi-
nal) (emphasis added) (quoting H.R. Rep. No. 491, 81st Cong., 1st Sess. 32–33
(1949)); see also United States v. Olinger, 12 M.J. 458, 460 (C.M.A. 1982) (ob-
serving that Congress granted CCAs power to establish uniformity of sen-
tences); United States v. Simmons, 6 C.M.R. 105, 106 (C.M.A. 1952) (reaching
the same conclusion after reviewing Senate and House of Representative re-
ports); United States v. Owens, 2 C.M.R. 655, 657 (A.F.B.R. 1951) (reaching the
same conclusion after examining the legislative history of Article 66, UCMJ,
in Armed Services Committee reports).
In line with this broad congressional purpose, we assume for purposes of
this appeal that CCAs have a responsibility to assess whether a sentence is
inappropriate, to include consideration of outside-the-record results in other
cases when such claim is raised by the record. We turn then to consider the
extra-record information we attached to the appellate record to decide Appel-
lant’s contention that her sentence is highly disparate compared to CM’s and
warrants relief.
c. Evaluation of CM’s Convictions and Sentence
Citing United States v. Lacy, Appellant identifies CM’s case for comparison
as one “closely related” to her own. 50 M.J. 286, 288 (C.A.A.F. 1999). In Lacy,
the CAAF described a CCA’s “sentence review function” as “highly discretion-
ary.” Id. Our responsibility in that regard includes “considerations of uni-
formity and evenhandedness of sentencing decisions.” United States v. Sothen,
54 M.J. 294, 296 (C.A.A.F. 2001) (citing Lacy, 50 M.J. at 287–88). In conducting
such reviews, we “are required to engage in sentence comparison only ‘in those
rare instances in which sentence appropriateness can be fairly determined only
by reference to disparate sentences adjudged in closely related cases.’” Id.(quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).
In Lacy, the CAAF observed the interplay between individualized sentenc-
ing and uniformity:
Congress has furthered the goal of uniformity in sentencing in a
system that values individualized punishment by relying on the
judges of the Courts of Criminal Appeals to “utilize the experi-
ence distilled from years of practice in military law to determine
whether, in light of the facts surrounding [the] accused’s delict,
his sentence was appropriate. In short, it was hoped to attain
relative uniformity rather than an arithmetically averaged sen-
tence.”
13
United States v. Behunin, No. ACM S32684
50 M.J. at 288 (alteration in original) (quoting Olinger, 12 M.J. at 461) (addi-
tional citation omitted).
When arguing sentence disparity and asking the court to compare Appel-
lant’s sentence with the sentences of others, “an appellant bears the burden of
demonstrating that any cited cases are ‘closely related’ to his or her case and
that the sentences are ‘highly disparate.’” Id. At the same time, a CCA is not
“constrained to specifically limit its comparison of sentences to closely related
cases.” United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001); see also An-
derson, 67 M.J. at 705 (“In making a sentence appropriateness determination,
[CCAs] are required to examine sentences in closely related cases and permit-
ted, but not required, to do so in other cases.” (citing Wacha, 55 M.J. at 267–
68) (additional citation omitted)). “If the appellant meets that burden, or if the
court raises the issue on its own motion, then the Government must show that
there is a rational basis for the disparity.” Lacy, 50 M.J. at 288.
Cases are “closely related” when, for example, they include “coactors in-
volved in a common crime, servicemembers involved in a common or parallel
scheme, or some other direct nexus between the servicemembers whose sen-
tences are sought to be compared.” Id. The test for whether sentences are
“highly disparate” is “not limited to a narrow comparison of the relative nu-
merical values of the sentences at issue, but also may include consideration of
the disparity in relation to the potential maximum punishment.” Id. at 289.
“Sentence comparison does not require sentence equation.” Durant, 55 M.J.
at 260. “[T]he military system must be prepared to accept some disparity in
the sentencing of codefendants, provided each military accused is sentenced as
an individual.” Id. at 261. “[C]harging decisions by commanders in consulta-
tion with their trial counsel, as well as referral decisions by convening author-
ities after advice from their Staff Judge Advocates, can certainly lead to differ-
ences in sentencing.” Id.
i) Appellant’s “Closely Related” Claim
As shown by Appellant’s stipulation of fact, Appellant and CM wrongfully
used LSD and cocaine under like circumstances. As stipulated, they used each
drug at an identical time and place in the presence of the other. Although Ap-
pellant and CM were not plainly co-actors involved in a common crime,15 they
15 In United States v. Lacy, the CAAF found three servicemembers were co-actors be-
cause they each “had sexual intercourse with an underage girl in the presence of each
other” and “[a]ll three pleaded guilty to indecent acts and carnal knowledge.” 50 M.J.
286, 287 (C.A.A.F. 1999). All three pleaded guilty and were convicted in accordance
with their pleas by the same military judge sitting as a general court-martial. Id.14
United States v. Behunin, No. ACM S32684
each sought to use illegal drugs and then did so, which to us suggests the ex-
istence of a “common or parallel scheme.” See id. If their individual Article
112a, UCMJ, convictions were all this court considered to determine whether
their cases were closely related, we would not have difficulty finding Appellant
has shown that they were.
However, Appellant and CM also stand convicted of fraudulent enlistment
after they independently misrepresented preservice drug use in applications
to join the Air Force. Each was convicted, also, of separately making a false
official statement to military investigators with intent to deceive. As charged
and convicted, Appellant lied that she used cocaine for the first time on 6 June
2020, and CM lied that he never saw or used any drugs on the evening of 6
June 2020. Appellant contends these convictions are for “essentially the same
misconduct.” The Government disagrees, arguing both offenses are founded on
misconduct each “committed alone.” Recognizing that Appellant and CM were
convicted of acts each committed without assistance from or collaboration with
the other, the Government urges this court to find Appellant has not shown a
sufficiently “direct nexus” between her case and CM’s for their cases to be
closely related. See Lacy, 50 M.J. at 288.
We find merit to the Government’s argument. On the one hand, Appellant
and CM used drugs with the same friends, they were subjects of what was
likely a joint investigation, and they were convicted of using the same drugs at
the same time. On the other hand, each was convicted of two offenses for inde-
pendently misrepresenting what they knew about their own drug use to mili-
tary officials. We agree with the Government that misrepresentations each
made to authorities lack an obvious “direct nexus between the servicemembers
whose sentences are sought to be compared.” See id. (emphasis added). “The
mere similarity of offenses is not sufficient.” United States v. Washington, 57
M.J. 394, 401 (C.A.A.F. 2002) (citing Wacha, 55 M.J. at 267–68).
We decline to find a nexus where the common link is that two Airmen in-
dependently violated the same article of the UCMJ and harbored a similar
purpose—in this case, an intent to deceive—when they separately committed
the misconduct at issue. The self-serving statements each made before enlist-
ing and when their conduct was under investigation establish mere similarity
of offenses, but do not satisfy the required showing of nexus. In that regard,
two of the four convictions involve neither co-actors collaborating in the com-
mission of a common crime, Airmen involved in a scheme to deceive military
officials, or other direct nexus. While their cases are related, they are not
closely related overall.
15
United States v. Behunin, No. ACM S32684
ii) Relative Uniformity Review
Nonetheless, we find Appellant has identified a case that should trigger
this court’s sentence appropriateness review by reference to a sentence ad-
judged in another case. We reach this conclusion even though we are not con-
vinced Appellant met her burden to show her case and CM’s are closely related
under Lacy. Instead, we are mindful that this court is not “constrained to spe-
cifically limit its comparison of sentences to closely related cases.” Wacha, 55
M.J. at 267; see also Anderson, 67 M.J. at 705 (observing “we are required to
examine sentences in closely related cases and permitted, but not required, to
do so in other cases”). In that regard, we credit Appellant’s point that the en-
tries of judgment for each reflect similar kinds of misconduct.
Therefore, we will consider the result of CM’s court-martial as part of our
determination whether Appellant’s sentence is “both relatively uniform and
appropriate.” Wacha, 55 M.J. at 268. This responsibility “reflects the unique
history and attributes of the military justice system,” which, as noted above,
includes “considerations of uniformity and evenhandedness of sentencing deci-
sions.” Id. (quoting Sothen, 54 M.J. at 296).
Appellant was convicted of fewer offenses and received both confinement
and a bad-conduct discharge. As previously noted, CM’s sentence included nei-
ther confinement nor a punitive discharge. Despite committing two of the same
offenses—their convictions for wrongful use of LSD and cocaine are founded on
identical specifications—CM received 90 days of hard labor without confine-
ment and significantly lower forfeiture of pay than Appellant. Importantly, CM
was also convicted of one specification each for wrongful distribution of LSD
and cocaine, which are serious offenses often warranting lengthy confinement
and a punitive discharge. However, neither punishment was imposed.
Citing Durant, the Government argues there will always be some variation
between sentences given the individualized nature of sentencing. 55 M.J. at
261 (“[T]he military system must be prepared to accept some disparity in the
sentencing of codefendants, provided each military accused is sentenced as an
individual.”). However, this argument is less a reason to excuse a variation in
the present case than an example why the CAAF has charged CCAs with the
responsibility to examine sentences for relative uniformity consistent with its
finding of congressional purpose that a CCA has the power to redress dispari-
ties. See generally Henry, 42 M.J. at 234.
Relying on Lacy, the Government argues, moreover, that the disparity here
is not so extreme compared to the maximum punishment without regard to the
12-month jurisdictional limit on confinement at a special court-martial. 50
M.J. at 289 (“The test in such a case is not limited to a narrow comparison of
the relative numerical values of the sentences at issue, but also may include
16
United States v. Behunin, No. ACM S32684
consideration of the disparity in relation to the potential maximum punish-
ment.”). Appellant argues her case should not turn on maximum punishments
that are beyond the jurisdiction of a special court-martial.
We are likewise not persuaded by the Government’s argument. All other
things being equal, if both cases had been referred to general courts-martial,
CM would have faced a maximum punishment that included an additional 30
years’ confinement because of his pleas of guilty to distributing LSD and co-
caine.16 Consideration of Appellant’s and CM’s sentences in relation to the
maximum punishment in a different forum does not change the fact that CM
would have faced a much higher maximum punishment for his greater culpa-
bility, and yet CM received a sentence that included neither confinement nor
a punitive discharge unlike Appellant who received both. We conclude Appel-
lant’s sentence compared solely to CM’s is not uniform, however that compari-
son is not all we consider in the broader context of evaluating relative uni-
formity.
d. Relative Uniformity with Other Cases
In her reply brief, Appellant explains she “only seeks to compare her case
with CM’s case.” However, our inquiry into relative uniformity does not end
with consideration of the results of CM’s court-martial. As noted previously,
our statutory responsibility to review sentence appropriateness “includes but
is not limited to considerations of uniformity and evenhandedness of sentenc-
ing decisions.” Sothen, 54 M.J. at 296. When exercising this authority we are
not constrained to similar cases identified by an appellant. We may examine
other cases sua sponte. Id. (observing a CCA may engage in sentence compari-
son “on its own motion”). Our authority to review other cases as we deem ap-
propriate is consistent with a CCA’s responsibility to “do justice” while adher-
ing to Article 66, UCMJ, although we have no discretion to grant mercy. Nerad,
69 M.J. at 146.
In the present case, we find setting aside Appellant’s bad-conduct discharge
to lessen disparity with CM’s sentence would not promote the congressional
purpose of sentencing uniformity that underlies our statutory jurisdiction. In
that regard, MS and SM were each convicted of one specification of wrongful
use of a controlled substance. Their sentences included confinement—70 and
75 days, respectively—and no punitive discharge. During Appellant’s sentenc-
ing, the military judge similarly imposed 90 and 100 days’ confinement for her
wrongful use of cocaine and LSD, respectively.
16 At a general court-martial, Appellant would have faced a maximum sentence that
included confinement for 17 years. CM would have faced 47 years’ confinement.
17
United States v. Behunin, No. ACM S32684
If we were to set aside the bad-conduct discharge, Appellant’s sentence that
included 110 days’ confinement would be comparable to sentences imposed for
MS and SM, despite Appellant’s conviction for committing three additional vi-
olations of the UCMJ. For one of those violations—fraudulent enlistment—the
military judge sentenced Appellant to 110 days’ confinement. We find Appel-
lant’s additional misconduct as set forth in three convictions that are absent
from MS’s and SM’s cases provides a rational explanation for the bad-conduct
discharge that was adjudged in her case. Under the circumstances, the relief
Appellant seeks is not warranted in relation to the results in those cases.
3. Conclusion
Appellant’s case is not one of “those rare instances in which sentence ap-
propriateness can be fairly determined only by reference to disparate sentences
adjudged in closely related cases.” Sothen, 54 M.J. at 296 (citation and internal
quotation marks omitted). In conducting a sentence review, a CCA has respon-
sibility to evaluate “both the data provided by [an] appellant and the specific
circumstances of [an] appellant’s case.” Washington, 57 M.J. at 401. We have
done so. Appellant’s sentence is not inappropriate based on the record below
and also with regard to sentences adjudged in other cases when that infor-
mation was brought to this court’s attention on appeal.
In our examination of Appellant’s case both individually, and in relation to
the others, we “utilize the experience distilled from years of practice in military
law” as our superior court allows when a CCA examines questions of sentence
disparity. Lacy, 50 M.J. at 288; see also Ballard, 20 M.J. at 286 (observing that
“military lawyers who find themselves appointed as trial judges and judges on
the courts of military review have a solid feel for the range of punishments
typically meted out in courts-martial”). It is an unfortunate reality that we are
especially mindful of the range of punishments in drug cases from hundreds of
such cases we have seen in our careers. Appellant’s sentence would not be rel-
atively uniform compared to the sentences of MS and SM if we granted the
requested relief by setting aside the bad-conduct discharge. We are confident
that granting relief would not further the objective of relative uniformity in
sentencing “in a system that values individualized punishment.” Lacy, 50 M.J.
at 288.
For the reasons discussed, the sentence that “should be approved,” Article
66(d)(1), UCMJ, can be determined solely by reference to the record of proceed-
ings below. Having considered all matters before the court in conducting our
sentence appropriateness review, Article 66(d)(1), UCMJ, we conclude that re-
lief is not warranted.
18
United States v. Behunin, No. ACM S32684
B. Convening Authority’s Decision on Action
In another assignment of error, Appellant claims prejudice from the con-
vening authority’s failure to take action on the sentence. She urges the court
to remand her case for proper post-trial processing. We are not persuaded relief
is warranted.
As noted above, Appellant was convicted of fraudulent enlistment for
falsely representing that she had not unlawfully used a controlled substance
before entering the Air Force. Among the elements of this offense, the Govern-
ment alleged that, on or about 7 August 2018, Appellant made a knowingly
false representation that she had not used illegal drugs when, in fact, she had
used cocaine. Because Appellant was found guilty of at least one specification
involving an offense before 1 January 2019, the convening authority was re-
quired to approve, disapprove, commute, or suspend the sentence of the court-
martial in whole or in part. United States v. Brubaker-Escobar, 81 M.J. 471,
472 (C.A.A.F. 2021) (per curiam); see also Article 60, UCMJ, 10 U.S.C. § 860(Manual for Courts-Martial, United States (2016 ed.)) (2016 MCM).
However, the convening authority did none of these things. To the contrary,
the convening authority stated in a Decision on Action memorandum, “I take
no action on the sentence.”17 It follows, then, that the convening authority
made a procedural error by failing to act on the sentence. Brubaker-Escobar,
81 M.J. at 474–75 (holding that the convening authority erred by taking “no
action” on the sentence). In line with Article 59(a), UCMJ, 10 U.S.C. § 859(a),
“procedural errors are ‘test[ed] for material prejudice to a substantial right to
determine whether relief is warranted.’” Id. at 475 (alteration in original)
(quoting United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005) (distin-
guishing procedural errors tested for material prejudice from errors that de-
prive a court of jurisdiction)).
After the conclusion of her court-martial, Appellant did not raise a motion
under Rule for Courts-Martial (R.C.M.) 1104(b)(2)(B) to challenge the form or
validity of the convening authority’s decision. See also R.C.M. 1104(b)(1)(F) (al-
lowing post-trial motion to address “[a]n allegation of error in the convening
authority’s action”). On appeal, Appellant argues we should review that deci-
sion under a plain error standard of review, namely, whether: “(1) there was
error; (2) it was plain or obvious; and (3) the error materially prejudiced a sub-
stantial right.” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (cita-
tions omitted) (reviewing appellant’s failure in his clemency submission to the
convening authority to comment on omission in a staff judge advocate’s recom-
mendation). Citing Scalo, Appellant further argues she need only show “some
17 The convening authority stated, also, “I take no action on the findings in this case.”
19
United States v. Behunin, No. ACM S32684
colorable form of prejudice” to demonstrate relief is warranted. See id. at 436–
37 (concluding the appellant “has not made a colorable showing of possible
prejudice” (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). The
Government concedes procedural error, but citing Brubaker-Escobar, asserts
that “this [c]ourt tests for material prejudice to a substantial right.” See 81
M.J. at 475.
We accept the Government’s concession and agree that the proper legal
standard to evaluate procedural error like the one here is to test for material
prejudice to a substantial right. We reach this conclusion for two reasons. First,
and in the main, the convening authority’s decision memorandum suffers from
the same infirmity as the one in Brubaker-Escobar. In that case, the CAAF
tested for material prejudice to a substantial right that is in line with Article
59(a), UCMJ. See id. Second, the procedural error in Brubaker-Escobar and in
the present case is a defect in the form of the announcement of a convening
authority’s decision, and not a post-trial recommendation error where the ap-
plicable standard is some colorable showing of possible prejudice.18 For these
reasons, we hew closely to the text and plain meaning of Article 59(a), UCMJ,
and Brubaker-Escobar, and test for material prejudice to a substantial right.
We turn then to examine the convening authority’s Decision on Action
memorandum and his statement that he took no action on the sentence. Test-
ing for material prejudice to Appellant’s substantial rights, we find relief is not
warranted. To begin with, the convening authority was powerless to grant
clemency on the adjudged findings. See Article 60(c)(3)(A), UCMJ, 10 U.S.C.
§ 860(c)(3)(A) (2016 MCM); R.C.M. 1107(c)(1) (2016 MCM). As to sentence, the
convening authority was not authorized to disapprove, commute, or suspend
the adjudged bad-conduct discharge. See Article 60(c)(4)(A), UCMJ, 10 U.S.C.
§ 860(c)(4)(A) (2016 MCM) (“[T]he convening authority . . . may not disap-
prove, commute, or suspend in whole or in part an adjudged sentence of . . . [a]
bad[-]conduct discharge.”); R.C.M. 1107(d)(1)(B)(ii) (2016 MCM).
Nonetheless, the convening authority had the power to disapprove, com-
mute, or suspend, in whole or in part, the adjudged reduction in grade, forfei-
ture of pay, and 110 days of confinement. See Article 60(c)(2), (c)(4)(A), UCMJ,
18 The CAAF recently stated, “[I]n the context of a post-trial recommendation error,”
the proper standard is “some colorable showing of possible prejudice.” United States v.
Miller, ___ M.J. ___, No. 21-0222, 2022 CAAF LEXIS 272, at *8 (C.A.A.F. 4 Apr. 2022)
(quoting United States v. Scalo, 60 M.J. 60 M.J. 435, 436–37 (C.A.A.F. 2005) (stating
appellant’s burden under 2019 MCM procedures)). This standard is unchanged from
the low threshold for pre-2019 MCM post-trial recommendation error. See, e.g., United
States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (defect in staff judge advocate’s
recommendation (SJAR)); United States v. Chatman, 46 M.J. 321, 324 (C.A.A.F. 1997)
(defect in addendum to the SJAR).
20
United States v. Behunin, No. ACM S32684
10 U.S.C. §§ 860(c)(2), (c)(4)(A) (2016 MCM); R.C.M. 1107(d)(1)(A) (2016 MCM)
(addressing reduction in grade and forfeitures); R.C.M. 1107(d)(1)(B)(i) (2016
MCM) (addressing confinement). We then examine whether Appellant was
prejudiced by the convening authority failing to take action on these compo-
nents of the sentence within the meaning of “action” in Article 60(c)(2), UCMJ
(2016 MCM).
On 20 January 2021, Appellant requested clemency. She asked the conven-
ing authority to reduce the adjudged confinement. Appellant largely justified
that request on the risk of coronavirus transmission while confined. Appellant
also resubmitted character letters that were admitted in sentencing and noted
that she took responsibility for her actions. Appellant did not seek modification
of the adjudged forfeitures or reduction in grade. The convening authority
could have modified these two sentence components, but it is speculative to
conclude such relief would have been granted, much less in the absence of a
specific request.
The convening authority evaluated Appellant’s clemency request, stating
he “considered matters timely submitted by the accused under Rule for Courts-
Martial 1106”19 and also consulted with his staff judge advocate. As noted ear-
lier, the convening authority signed a decision memorandum in which he
stated that he took “no action on the sentence.” After Appellant submitted as-
signments of error to the court, the Government submitted a declaration from
the convening authority. We find that consideration given by the convening
authority to Appellant’s clemency request is raised by the record, and thus we
are not prohibited from considering the declaration in conducting our review.
Jessie, 79 M.J. at 444 (holding CCAs may consider affidavits when doing so is
necessary to resolve issues raised by materials in the record).
In that declaration, the convening authority explained his intent was to
deny relief Appellant sought in clemency:
As the Special Court-Martial Convening Authority, in every
case, I take special care to review all matters submitted by an
accused, should the accused choose to submit matters. On 29
January 2021, I reviewed and signed the Convening Authority
Decision on Action for United States v. A1C Mellodee L. Behunin.
As I stated in that memorandum, prior to signing the document
I considered the matters submitted by A1C Behunin, including
her 20 January 2021 request and its attachments—submitted
19 The convening authority apparently meant R.C.M. 1106 in the 2019 MCM. Compare
R.C.M. 1106, Matters submitted by the accused (2019 MCM), with R.C.M. 1106, Rec-
ommendation of the staff judge advocate or legal officer (2016 MCM).
21
United States v. Behunin, No. ACM S32684
through her counsel—that I reduce her confinement. After con-
sidering the submission, I determined that the findings and sen-
tence, as adjudged, were appropriate. In taking no action, my
intent was to provide no relief on the findings or sentence and
approve the sentence under Article 60, Uniform Code of Military
Justice.
Lastly, we decide whether to give weight to this declaration, which is dif-
ferent from the question of whether it may be considered under Jessie. In her
reply to the Government’s answer, Appellant is dismissive of the declaration
and urges the court not to consider it. Echoing remarks in a decision by a dif-
ferently constituted three-judge panel of the court in United States v. Kerr,
Appellant contends that we should “acknowledge the importance of avoiding
unwarranted post hoc speculation that may be caused by this court’s reliance
on such a declaration.” See No. ACM S32570, 2020 CCA LEXIS 276, at *7–8
(A.F. Ct. Crim. App. 20 Aug. 2020) (unpub. op.) (finding no prejudice where
appellant waived clemency despite errors in the staff judge advocate’s recom-
mendation). Appellant is correct that, at times, this court has viewed post-ac-
tion declarations with skepticism. In United States v. Arnold, for example, this
court was indifferent about declarations of the acting staff judge advocate who
misadvised a convening authority about his clemency power, and of the con-
vening authority who declared that his “decision would not have changed” if
he had been properly advised. No. ACM 39479, 2019 CCA LEXIS 458, at *24–
26 (A.F. Ct. Crim. App. 18 Nov. 2019) (unpub. op.).
The present case is distinguishable from Kerr and Arnold. In those deci-
sions, legal advisors misunderstood the convening authority’s plenary power
to affect the results of a court-martial. Their legal recommendations were
plainly erroneous. Kerr, unpub. op. at *3–4; Arnold, unpub. op. at *22–24. In
both cases, legal advisors, including a staff judge advocate, who were involved
in post-trial processing fundamentally misunderstood a convening authority’s
clemency power.
Here, there is no showing the convening authority was similarly misad-
vised or that he similarly misapprehended the scope of his authority. Unlike
Kerr and Arnold, the error was not shown to have reached beyond the form of
the action that the convening authority used to deny relief that Appellant
wanted or could have sought. Accordingly, we consider the convening author-
22
United States v. Behunin, No. ACM S32684
ity’s post-trial declaration and rely on it to find no material prejudice to Appel-
lant’s substantial rights owing to the procedural error in the form of the ac-
tion.20
II. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
20 Two judges of the panel find the convening authority’s intent can be gleaned, more-
over, from the words in the Decision on Action memorandum and the Air Force guid-
ance in effect when the convening authority made his decision not to disturb the sen-
tence. “[A] decision to take no action is tantamount to granting no relief.” Air Force
Instruction 51-201, Administration of Military Justice, ¶ 13.17.1. (18 Jan. 2019). To be
sure, the convening authority followed this guidance to his detriment by failing to take
action on each component of the sentence. Despite the procedural error, the memoran-
dum unmistakably conveys an intent to grant no sentencing relief to Appellant in line
with the convening authority’s post-trial declaration. For this additional reason, two
judges of the panel conclude that Appellant was not prejudiced.
23