United States v. Steinert ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39857 (f rev)
________________________
UNITED STATES
Appellee
v.
Michael J. STEINERT
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 29 November 2022
________________________
Military Judge: Matthew D. Talcott (arraignment); Jefferson B. Brown;
Dayle D. Percle (remand).
Sentence: Sentence adjudged on 10 October 2019 by GCM convened at
Goodfellow Air Force Base, Texas. Sentence entered by military judge
on 1 November 2019 and reentered on 15 November 2021: Bad-conduct
discharge, confinement for 2 years, forfeiture of all pay and allowances,
reduction to E-1, and a reprimand.
For Appellant: Major Amanda E. Dermady, USAF; Major Kasey W. Haw-
kins, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Cortland T. Bobczynski, USAF;
Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Judge
ANNEXSTAD and Judge GRUEN 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This is an unpublished opinion and, as such, does not serve as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. Steinert, No. ACM 39857 (f rev)
KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a pretrial agreement, of one specifi-
cation of failure to follow a lawful order and five specifications of assault con-
summated by battery in violation of Articles 92 and 128, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. §§ 892, 928.1 The convening authority with-
drew and dismissed three additional specifications of assault consummated by
a battery in violation of Article 128, UCMJ, after Appellant had been ar-
raigned, but before he entered his pleas. Once the military judge announced
Appellant’s sentence, the convening authority dismissed a specification of at-
tempted sexual assault along with five specifications of sexual assault in vio-
lation of Articles 80 and 120, UCMJ, 10 U.S.C. §§ 880, 920, as required by the
pretrial agreement. The specifications of which Appellant was convicted, as
well as those that were dismissed, all pertain to offenses he committed in 2017
and 2018. The military judge sentenced Appellant to a bad-conduct discharge,
confinement for two years, forfeiture of all pay and allowances, reduction to
the grade of E-1, and a reprimand. The convening authority took no action on
either the findings or the sentence.
Appellant’s case is before us for a second time. When this case was origi-
nally presented to us, Appellant raised five issues. One of those issues entailed
Appellant’s assertion that the convening authority erred by not taking action
on his sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg.
9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860, Manual for
Courts-Martial, United States (2016 ed.). We remanded his case to the Chief
Trial Judge, Air Force Trial Judiciary, for corrective action. See United States
v. Steinert, No. ACM 39857, 2021 CCA LEXIS 401, at *7–9 (A.F. Ct. Crim. App.
10 Aug. 2021) (unpub. op.). The convening authority subsequently approved
Appellant’s sentence, resulting in a revised entry of judgment (EoJ). Now that
this error has been corrected, we turn to the remaining four issues raised by
Appellant: (1) whether the EoJ should be revised; (2) whether he is entitled to
relief because he was not permitted to rebut matters raised in the victim’s sub-
mission to the convening authority; (3) whether he is entitled to relief due to
the conditions of his post-trial confinement; and (4) whether his trial defense
counsel were ineffective during sentencing proceedings.2 We have carefully
1 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise noted, all other references to the UCMJ and
Rules for Courts-Martial are to the Manual for Courts-Martial, United States (2019
ed.).
2 Appellant personally raises issue (4) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
2
United States v. Steinert, No. ACM 39857 (f rev)
considered issue (4) and find it does not require discussion or warrant re-
lief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). We find no
error materially prejudicial to Appellant’s substantial rights, and we affirm the
findings and the sentence.
I. BACKGROUND
Appellant’s offenses stem from his abusive relationship with his wife, Ms.
SS, whom Appellant was charged with physically assaulting on multiple occa-
sions during the first half of 2017. Appellant was also convicted of violating no-
contact orders on divers occasions in November 2018 by contacting Ms. SS de-
spite being ordered not to do so. The particulars of Appellant’s offenses are not
pertinent to the issues he raises on appeal; facts relevant to each section are
set out below.
II. DISCUSSION
A. Errors in the EoJ
Appellant asserts the EoJ in his case contains various errors and asks this
court to set aside his punitive discharge as a remedy, as well as order the pub-
lication of a corrected EoJ. Appellant has alleged the following with respect to
the EoJ:
(1) It describes how four specifications were amended after ar-
raignment but before entry of pleas, as opposed to simply set-
ting out the specifications as they appeared once the amend-
ments had been made;
(2) It omits Appellant’s social security number;
(3) It includes the victim’s full name in two places, despite using
her initials in all other instances in the EoJ; and
(4) It fails to state that two charges and nine specifications were
withdrawn and dismissed with prejudice.
In its answer, the Government does not take any particular position on the
questions of whether or not Appellant’s allegations are actually true or amount
to legal error. Instead, the Government asks us to modify the EoJ to correct
any errors which might exist.
1. Law
We review claims of improper post-trial processing de novo as a question of
law. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004)
(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).
3
United States v. Steinert, No. ACM 39857 (f rev)
“A pretrial agreement in the military justice system establishes a constitu-
tional contract between the accused and the convening authority.” United
States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citing United States v. Lundy,
63 M.J. 299, 301 (C.A.A.F. 2006)). “In a criminal context, the [G]overnment is
bound to keep its constitutional promises.” Lundy, 63 M.J. at 301.
In the performance of our duties and responsibilities, we may modify the
judgment of a court-martial. Rule for Courts-Martial (R.C.M.) 1111(c)(2).
2. Analysis
a. Specifications Amended After Arraignment
With respect to Appellant’s first contention, four specifications were
amended pursuant to his pretrial agreement (for example, substituting the
word “hand” for the originally charged word “fist”). The EoJ includes a chart
outlining the outcome of Appellant’s court-martial which includes four head-
ings: “Charges;” “Arraigned Offenses;” “Pleas;” and “Findings.” Synopses of the
charges appear under the “Arraigned Offenses” heading along with explana-
tions of modifications made to the charges after arraignment. For example, one
specification is summarized, in relevant part, as Appellant striking Ms. SS on
her arm and stomach with his fist. The next sentence reads: “Amended after
arraignment to delete the word ‘fist’ to substitute the word ‘hand.’” Appellant
argues the summary for this offense in the EoJ “should only include the
amended language,” but he points to no authority for this proposition, nor does
he advance any argument for why he believes this to be true.3 Considering the
EoJ heading plainly reads “Arraigned Offenses,” Appellant’s contention that
only summaries of the as-modified offenses should be included—without refer-
ence to what modifications were made after Appellant was arraigned—would
be both incorrect and misleading. As written, the EoJ captures both the of-
fenses upon which Appellant was arraigned and the modified offenses to which
Appellant pleaded guilty and was convicted of. Appellant’s claimed error on
this point is without merit.
b. Appellant’s Social Security Number and Victim’s Full Name
The EoJ in the record of trial filed with this court contains Appellant’s so-
cial security number, so Appellant has failed to establish any error on this
point.4 Even if Appellant received an EoJ without his social security number
on it, he has failed to identify any rule or procedure that has been violated,
3 The Government, meanwhile, seems to conclude that the issue is that the synopses
do not include the words, “amended by the convening authority” (emphasis added), but
offers no explanation why inclusion of this information may be required.
4 The original EoJ in the record of trial filed with this court also included Appellant’s
social security number.
4
United States v. Steinert, No. ACM 39857 (f rev)
much less how he has suffered any prejudice. Appellant’s contention is without
merit.
Appellant is correct that the EoJ includes the victim’s full name in two
places, despite using her initials in all other instances. While such an error
certainly undermines the main rationale for using initials in the first place—
that is, to protect the privacy of crime victims—Appellant has asserted no prej-
udice, and we see none. Thus, we grant Appellant no relief for this error.
c. Dismissal With Prejudice
Pursuant to Appellant’s pretrial agreement, the convening authority dis-
missed various specifications with prejudice—three were dismissed prior to
Appellant entering his pleas and six were dismissed after the military judge
announced Appellant’s sentence, but before the court-martial adjourned. In the
“Pleas” column of the EoJ, the three specifications dismissed pre-plea are cap-
tured as: “Withdrawn and dismissed before entry of pleas.” The other six have
annotations in the “Findings” column reading, “Withdrawn after acceptance of
pleas and dismissed after sentence.”5 During Appellant’s court-martial, the
military judge confirmed all nine specifications were dismissed with prejudice.
Appellant asserts the military judge erred by summarizing the resolution
of these specifications as having been “dismissed,” as opposed to being “dis-
missed with prejudice.” Appellant does not allege the convening authority
failed to fulfill her promises in the pretrial agreement. Indeed, the record of
trial reflects the specifications were actually dismissed with prejudice.6
Appellant further alleges he has been prejudiced by the wording on the EoJ.
His theory is that anyone who reviews the EoJ “would receive an inaccurate
reflection” of the disposition of those charges and the fact “with prejudice” was
omitted “may have been part of the reason why [Appellant’s] parole in the state
of Texas was denied.” In support of this contention, Appellant submitted to this
court a heavily redacted letter from the probation office in the United States
District Court for the Western District of Texas addressed to “Prisoner Man-
agement” at the Naval Consolidated Brig on Joint Base Charleston, South Car-
olina, where Appellant was confined at the time.7
Before we address the contents of this letter, we first assess whether we
can consider it. The United States Court of Appeals for the Armed Forces
5 The entries for these six specifications also indicate Appellant pleaded not guilty to
the offenses.
6 Pen-and-ink changes to the charge sheet also reflect the specifications were dismissed
with prejudice.
7 The line above “Prisoner Management” is redacted.
5
United States v. Steinert, No. ACM 39857 (f rev)
(CAAF) has clarified that, except in certain limited circumstances, our court’s
review under Article 66, UCMJ, 10 U.S.C. § 866, is limited to “the entire rec-
ord,” which generally does not include matters submitted directly to a Court of
Criminal Appeals during appellate review. United States v. Jessie, 79 M.J. 437,
444 (C.A.A.F. 2020). We may, however, consider such matters when necessary
to resolve issues raised by materials in the record. Id. The CAAF has described
this concept as authorizing the Courts of Criminal Appeals “to supplement the
record to decide any issues that are raised, but not fully resolved, by evidence
in the record.” United States v. Willman, 81 M.J. 355, 358 (C.A.A.F. 2021), cert.
denied, __ U.S. __, 142 S. Ct. 2811 (2022).
The Government has taken the position that we may not consider the pro-
bation office’s letter pursuant to Jessie, because Appellant’s parole was not
raised by materials in the record. We disagree with the Government under the
facts presented here. Whatever merit Appellant’s substantive complaint may
have, it relates to an issue raised in the record, namely whether Appellant has
suffered any prejudice as a result of an EoJ error. Appellant has submitted the
letter from the probation office in an effort to demonstrate prejudice, and we
therefore conclude we may appropriately consider it as bearing on a matter
raised—but not fully resolved—by the record.
We are unconvinced the letter Appellant submitted establishes he was prej-
udiced. The first half of the letter has been completely redacted save the intro-
ductory language: “We have investigated the relocation plan submitted for in-
mate [Appellant] and report the following:”—leaving us unable to understand
the context of the entire letter. After the redacted portion, the letter indicates
Appellant “has numerous allegations of sexually deviant and/or criminal sex-
ual behaviors that have not been addressed through treatment or conditions
set forth by the parole board for future evaluation or treatment.” The letter
then states the probation office denied “the relocation plan” due to Appellant’s
lack of ties to the area “and lack of conditions allowing for sex offender evalu-
ation and/or treatment,” and it concludes by offering Appellant the opportunity
to submit “an alternative relocation/release plan.”
Although the Government asked us not to consider this letter based upon
Jessie, it submitted its own declaration in the event we disagreed. This decla-
ration is from Ms. CL, the probation officer for the Western District of Texas.
She asserts that she “handled” Appellant’s case and explains that her office
does not make parole decisions, but rather determines whether the office can
assume responsibility of supervising offenders once they are granted parole.
Ms. CL said the reason Appellant’s request to be relocated to the area was
denied was “because he has never lived here and has no circumstances tying
him to this area,” as Appellant “wanted to live with a friend he knew in tech
school.” Somewhat at odds with the letter Appellant received, Ms. CL claims
6
United States v. Steinert, No. ACM 39857 (f rev)
her office would have only considered Appellant’s criminal history upon a de-
termination that he “met the initial qualification for relocation,” which Ms. CL
says he did not. Ms. CL’s declaration also references Appellant’s arrest for
some other sexual misconduct, which she both differentiates from his “more
recent charged misconduct” and notes would require “a sex offender evalua-
tion.” With respect to whether Appellant’s offenses were dismissed with or
without prejudice, Ms. CL said that “does not make a difference” in her office’s
review.
Considering these documents together—even in light of the disconnect be-
tween Ms. CL’s declaration suggesting Appellant’s alleged offenses had not
been considered and the letter from her office stating Appellant’s relocation
plan was denied due, in part, to those alleged offenses—we conclude Appellant
has not demonstrated the omission of the words “without prejudice” contrib-
uted to his parole being denied. For one, the probation office was not responsi-
ble for determining whether or not to grant Appellant parole, but was instead
deciding whether it would assume the responsibility of supervising Appellant
once released. This fact alone renders Appellant’s contention that his parole
was denied as a result of the denial of his relocation plan highly speculative,
especially in light of the fact we have no information about his parole eligibility
at all, much less whether or why it was denied.
Second, the probation office’s primary reason for denying Appellant’s plan
was apparently rooted in Appellant’s lack of community ties to the area. Con-
sidering this reason was the first one cited in the probation office’s denial rec-
ommendation, we suspect the redacted portion of the letter addresses Appel-
lant’s community ties to west Texas or, rather, his lack thereof. Thus, even if
we assumed the denial of his relocation plan played a pivotal role in some pa-
role decision, we cannot conclude the relocation plan was denied by virtue of
the fact his EoJ omits the “with prejudice” language, as the decision was ap-
parently driven by the fact he had no ties to the area he proposed moving to.
Third, we see no support for the proposition that the probation office would
place any weight on whether his offenses were dismissed with or without prej-
udice in light of the fact Appellant’s mere arrest for some earlier alleged offense
triggered the requirement for a sex offender evaluation. As such, consideration
was given to the fact Appellant was charged with sexual assault offenses—
regardless of the ultimate disposition of those offenses—in assessing his relo-
cation plan.
Lastly, the letter submitted by Appellant notes he had “numerous allega-
tions of sexually deviant and/or criminal sexual behaviors.” (Emphasis added).
It does not state Appellant had numerous convictions. This indicates officials
in Texas were concerned not just with offenses of which Appellant had been
convicted, but also with ones he had been either accused of or charged with.
7
United States v. Steinert, No. ACM 39857 (f rev)
In light of the foregoing, Appellant has failed to demonstrate the omission
of the words “with prejudice” has prejudiced him in any fashion. Without a
showing of prejudice, we will not grant Appellant relief, even in the case of
government error. See Article 59(a), UCMJ, 10 U.S.C. § 859(a). We will, how-
ever, employ our authority under R.C.M. 1111(c)(2) and modify the EoJ in our
decretal paragraph.
B. Matters Submitted by Ms. SS
On appeal, Appellant argues that he was not timely served a copy of the
matters submitted by Ms. SS—the victim in this case—to the convening au-
thority. He further asserts that after he was finally provided a copy of these
matters, he submitted a written response to the convening authority, yet “there
is no indication that the convening authority considered” his response. As a
remedy, Appellant proposes that we reduce his sentence or order new post-trial
processing. We agree the convening authority erred, but Appellant is entitled
to no relief.
Under R.C.M. 1106A, once an accused has been convicted of an offense, any
victim of that offense may submit matters to the convening authority for con-
sideration in deciding what action, if any, to take on the court-martial’s find-
ings and sentence. R.C.M. 1106A(a). A victim must submit any such matters
within ten days of the sentence being announced (although this period may be
extended by no more than 20 days), and the convening authority is required to
ensure the matters are provided to the accused “as soon as practicable.” R.C.M.
1106A(c)(3), 1106A(e)(1). An accused, in turn, has five days after receiving a
victim’s matters to respond to them (a period which also may be extended).
R.C.M. 1106(d)(3). The convening authority is required to consider any matters
provided by either an accused or a victim under these rules prior to deciding
whether to take action in a case. R.C.M. 1109(d)(3)(A). The convening authority
“may not consider matters adverse to the accused that were not admitted at
the court-martial . . . unless the accused is first notified and given an oppor-
tunity to rebut.” R.C.M. 1109(d)(3)(C)(i).
Appellant was sentenced on 10 October 2019. During his court-martial,
Ms. SS provided an unsworn written statement to the court under R.C.M. 1001
which was marked as Court Exhibit 1. On 18 October 2019, about a week after
the court-martial concluded, Appellant submitted matters in clemency to the
convening authority. Apparently unbeknownst to Appellant, however, Ms. SS
also submitted matters to the convening authority during this same
timeframe. On 28 October 2019, ten days after Appellant’s submission, the
convening authority signed a Decision on Action memorandum in which she
stated she was taking no action on either the findings or the sentence in Ap-
pellant’s case. She also noted in this memorandum that she had considered
matters submitted by Appellant, as well as matters submitted by “the victim.”
8
United States v. Steinert, No. ACM 39857 (f rev)
The military judge signed the EoJ on 1 November 2019, and he included the
Decision on Action memorandum as an attachment.
More than two months after judgment was entered, on 8 January 2020, a
government representative asked Appellant’s trial defense counsel whether
the Defense had received a copy of the post-trial matters Ms. SS submitted to
the convening authority. Trial defense counsel responded that he had not. Ap-
pellant was provided those matters, and the convening authority permitted
Appellant to respond to them. Appellant’s trial defense counsel submitted a
written rebuttal on 14 January 2020, in which Appellant took issue with fac-
tual assertions in Ms. SS’s submission as well as argued that the convening
authority’s decision on action was “legally ineffective,” insofar as it was made
prior to Appellant’s opportunity to respond to the matters submitted by Ms. SS.
Finding Appellant’s positions unpersuasive, the convening authority signed a
memorandum dated 27 January 2020 in which she said she stood by her orig-
inal decision to not take action. She also said she had concluded Appellant had
not been prejudiced because Ms. SS’s post-trial submission was “the identical
victim impact statement” provided to the court-martial as Court Exhibit 1. The
convening authority further maintained her prior Decision on Action memo-
randum was “properly executed.” The 27 January 2020 memorandum, how-
ever, does not explain why—if the previous action decision had been proper
despite the lack of service of Ms. SS’s matters on Appellant—the convening
provided Appellant a second opportunity to submit a response well beyond the
time limits set out in R.C.M. 1006.
On appeal, the Government concedes Appellant received Ms. SS’s matters
late, but argues that Appellant cannot show any prejudice because the conven-
ing authority considered both sets of matters Appellant submitted and said she
stood by her original decision.
We agree the convening authority erred in two ways: (1) by not providing
Appellant a copy of Ms. SS’s submission before deciding whether to take action
on his case; and (2) by not specifically allowing Appellant to respond prior to
making that decision. The applicable rules here are not complicated, and they
essentially amount to giving a victim the right to provide information to the
convening authority along with the accused’s concomitant right to comment on
that information—all in order to inform the convening authority’s decision on
whether or not to take action on the findings or sentence and, if so, what action
to take. As R.C.M. 1109(d)(3)(C)(i) makes clear, the convening authority may
not consider matters not admitted at the court-martial and adverse to an ac-
cused which the accused has not been allowed to rebut. Here, the convening
authority’s post-decision provision of Ms. SS’s matters ran afoul of these rules
insofar as Appellant’s opportunity to respond occurred after the convening au-
thority had already decided not to take action and after judgment had been
9
United States v. Steinert, No. ACM 39857 (f rev)
entered. What eliminates the prejudice to Appellant, however, is that Ms. SS’s
post-trial submission was the exact same document provided during the court-
martial and included in the record of trial as Court Exhibit 1. Because there
was nothing new in her post-trial submission and because the submission had
been admitted at trial, the convening authority did not consider any matters
which Appellant did not have the opportunity to rebut. That is, Appellant was
able to address any matters in Court Exhibit 1 both at his court-martial and
in his post-trial clemency submission. We therefore conclude that while the
convening authority did not follow the procedures of R.C.M. 1106, R.C.M.
1106A, and R.C.M. 1109, she did not improperly consider any new matters.
Similarly, without any new matters, Appellant had nothing new to respond to,
so we see no prejudice to Appellant’s rights.
We also find significant the fact the convening authority provided Appel-
lant the post-decision opportunity to respond to Ms. SS’s submission. Like the
Government, we find it apparent from the convening authority’s 27 January
2020 memorandum that she did, in fact, consider Appellant’s post-decision re-
sponse, and—as explained above—the convening authority said her decision
was unchanged. We do not reach the question of whether the convening au-
thority had the ability to change her decision after judgment was entered, nor
do we consider whether the convening authority having already made an ini-
tial decision influenced her later ratification of that decision. Instead we note
that had we found relief was warranted, the natural remedy would have been
to set aside the decision on action, afford Appellant the opportunity to respond
to Ms. SS’s submission, and have the convening authority make a new decision
on action. Because Appellant was given the opportunity to respond to the sub-
mission—and the convening authority considered that response in reviewing
her prior decision—Appellant has already received the functional equivalent
of the relief he requested in the form of new post-trial processing. Thus, Appel-
lant has failed to demonstrate how he has been prejudiced.
C. Post-trial Confinement Conditions
Appellant argues his post-trial confinement conditions—specifically with
regards to his medical care—violated his rights under the Eighth Amendment
to the United States Constitution8 and Article 55, UCMJ, 10 U.S.C. § 855. Ap-
pellant also argues that, even in the absence of an Eighth Amendment or Ar-
ticle 55, UCMJ, violation, his confinement conditions rendered his sentence
inappropriately severe, warranting relief under Article 66(d), UCMJ.
8 U.S. CONST. amend. VIII.
10
United States v. Steinert, No. ACM 39857 (f rev)
1. Additional Background
Appellant was sentenced to be confined for two years on 10 October 2019,
and he was processed that evening into the Schleicher County Jail (Schleicher
County), where he remained incarcerated for two months until he was trans-
ferred to the Naval Consolidated Brig in Charleston on 10 December 2019. Ap-
pellant submitted matters in clemency to the convening authority on 18 Octo-
ber 2019 and then supplemented those matters on 14 January 2020. Neither
submission contains any reference to Appellant’s post-trial confinement condi-
tions, so the following information is drawn almost exclusively from Appel-
lant’s submissions to this court, most of which are heavily redacted medical
records along with a declaration from Appellant.
At the time of Appellant’s court-martial, he was stationed in California, but
his parent unit was at Goodfellow Air Force Base (AFB), Texas, where his
court-martial was convened. In his declaration, Appellant asserts he began
seeing a mental health provider in California in July 2018 and was receiving
treatment there through his court-martial in October 2019. The medical rec-
ords Appellant submitted start on 7 August 2019 and show that he was diag-
nosed with “insomnia, unspecified,” “nightmare disorder,” and “post-traumatic
stress disorder, acute.” On 14 August 2019, Appellant had the same diagnoses,
with the addition of “major depressive disorder, single episode, unspecified;”
and on this date, Appellant was prescribed gabapentin (an anti-anxiety medi-
cation) and trazodone (for depression and insomnia). Two weeks later, on 28
August 2019, the list of Appellant’s diagnoses consisted of only two: “major
depressive disorder, single episode, unspecified,” and “nightmare disorder”—
that is, post-traumatic stress disorder and insomnia were removed. This new
diagnosis is repeated in a 4 September 2019 entry.
On 7 October 2019, Appellant flew from California to Texas for his court-
martial. In his declaration, he explains he had prescription medications related
to anxiety, depression, and insomnia, but he “was unsure if [he] could bring
[his] prescription medication on the plane, so [he] left it in California.” After
being sentenced on 10 October 2019, Appellant underwent a confinement exam
conducted by a Goodfellow AFB physician. The doctor found Appellant fit for
confinement, but said Appellant was showing symptoms of possibly having
chlamydia and that testing was recommended. The doctor further wrote on
Appellant’s confinement order that Appellant had a “[l]ongstanding compli-
cated psychiatric history” and recommended a psychiatric evaluation and “con-
tinuation of current medications vs new regiment [sic].” The following day,
notes from the exam were added to Appellant’s medical records, specifying Ap-
pellant’s diagnosis as “major depressive disorder, single episode, unspecified”
and his prescriptions as including gabapentin and trazodone. The notes also
have this notation: “Self[-]reported discontinuation of medications [one] week
11
United States v. Steinert, No. ACM 39857 (f rev)
prior to evaluation.” Substantial portions of these notes are redacted and are
therefore unavailable for our review.
What occurred upon Appellant’s arrival at Schleicher County is somewhat
in dispute, although it is apparent Appellant was not provided any prescription
medications. Appellant claims in his declaration that he made “numerous re-
quests” to Schleicher County personnel for his medication, but that they told
him it “was a military issue;” he also says he made “numerous requests” to
schedule a medical appointment at Goodfellow AFB to address his medical con-
cerns. “After over one month,” Appellant says he had an appointment at the
base where he “received a shot,” but was not given his prescription medications
due to his impending transfer to Charleston.
In response, the Government submitted a declaration from Mr. JE, the
Schleicher County jail administrator, who wrote that, on 21 October 2019, Ap-
pellant told him he “may have a sexually transmitted disease, and [that Ap-
pellant] believed he needed medication.” Mr. JE says Appellant also told him
“that he had a psychological condition and requested a new regiment [sic] for
his psychological medications.” Upon learning this, Mr. JE says he “immedi-
ately contact[ed]” his “primary contact” for Appellant based upon Appellant’s
military status.9 This contact told Mr. JE that Appellant had received antibi-
otics prior to arriving at Schleicher County to address his chlamydia and prom-
ised to “get back to” Mr. JE about a psychological evaluation and any required
medications. Nothing in Mr. JE’s declaration indicates that either the contact
or Mr. JE ever followed up on this discussion. Mr. JE asserts Appellant never
made any other requests for medical attention or prescription medications and
that Appellant was taken to Goodfellow AFB on 9 December 2019—the day
before he was transferred to Charleston—for a “medical visit.” Mr. JE’s decla-
ration makes no reference to any other medical issues involving Appellant.
Appellant’s medical records demonstrate Appellant was seeking his pre-
scription medications while in confinement, as the records include correspond-
ence showing Appellant’s California-based provider contacted the Goodfellow
AFB mental health clinic around 12 November 2019, telling clinic personnel
that Appellant wanted to receive his medications. On 18 November 2019, the
base legal office called the mental health clinic trying to obtain an appointment
for Appellant, and a 22 November 2019 entry in Appellant’s records indicates
the clinic was working to set up a video “telepsych” appointment for Appellant.
Appellant’s records include a questionnaire seemingly filled out by Appellant
for an appointment on 27 November 2019. Although the vast majority of the
questionnaire has been redacted, the portion that asked Appellant to “briefly
9 We are unable to determine if this primary contact was affiliated with Goodfellow
AFB or some other entity.
12
United States v. Steinert, No. ACM 39857 (f rev)
describe the problems or concerns that brought [him] here today” contains the
following answer: “Major Depressive Disorder. Anxiety disorder. Lack of med-
ical care by AF. Nightmares poss[ibly] related to PTSD. Other health and ben-
efits concerns.” The form asks what three things Appellant sought from treat-
ment, and he wrote “medical care [and] treatment” and “diagnosis;” the third
item is redacted. The provider’s notes from the appointment are nearly entirely
redacted, although they do indicate Appellant’s “chief complaint” was “need
medications;” that his diagnosis was “major depressive disorder, single epi-
sode, moderate;” and that Appellant did not pose any elevated suicide risk,
although “lack of medications” was one factor which would increase his risk of
suicide.
A few days after this appointment, on 1 December 2019, a note from the
mental health flight commander indicates Appellant was scheduled for a psy-
chiatric appointment in mid-December 2019, but the commander had learned
Appellant was about to be transferred to Charleston. The commander wrote,
“[P]lease work together to ensure [patient] gets his medications (primary goal)
prior to his transfer OR that he has a safe transition and plan to get medica-
tions upon his arrival at Charleston AFB. Thank you!” A message the following
day indicates a doctor had been identified who was “willing to put in a bridge
prescription . . . as long as [Appellant] is able to come into the Charleston
clinic.” Apparently this bridge prescription did not materialize, as Appellant’s
final encounter with the Goodfellow AFB clinic was on 9 December 2019 for an
evaluation pursuant to his transfer to Charleston. Almost completely redacted,
the notes for that visit include diagnoses for depression, nightmares, insomnia,
and post-traumatic stress disorder along with an annotation noting Appellant
asked about restarting his medications and the provider said they discussed
how Appellant could “inquire at his next location.” Following more than an
entire page of blacked-out text, the notes read: “Restarting medications is not
ideal because there is no way to monitor him when he leaves here.”
Once at the Naval Consolidated Brig, Appellant was prescribed an anti-
depressant on 11 December 2019, then trazodone five days later. In his decla-
ration, Appellant maintains that because he did not receive his prescription
medications, he had “bad depression and suicidal ideations,” “had an extremely
difficult time sleeping,” “suffered from night terrors from [his] PTSD,” “had
extreme pain from [his] engorged lymph node,” and that his “anxiety was
through the roof” while he was at Schleicher County.
Appellant concedes he never filed a complaint under Article 138, UCMJ, 10
U.S.C. § 938, but says this was due to him not knowing about either Article
138, UCMJ, or the requirement to file such a complaint. There is nothing in
the materials submitted by Appellant indicating he availed himself of any
13
United States v. Steinert, No. ACM 39857 (f rev)
grievance process at Schleicher County, although Mr. JE’s declaration does not
state whether or not the facility had any such process in place.10
2. Law
We review de novo whether an appellant’s post-trial confinement condi-
tions violate the Eighth Amendment or Article 55, UCMJ. United States v.
Wise, 64 M.J. 468, 473 (C.A.A.F. 2007) (citing United States v. White, 54 M.J.
469, 471 (C.A.A.F. 2001)). Both the Eighth Amendment and Article 55, UCMJ,
prohibit cruel and unusual punishment. In general, we apply “the [United
States] 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]” is apparent. United States v.
Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citation omitted). “[T]he Eighth Amend-
ment prohibits two types of punishments: (1) those ‘incompatible with the
evolving standards of decency 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)). As the Supreme Court has explained, “[t]he Con-
stitution ‘does not mandate comfortable prisons,’ but neither does it permit in-
humane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes
v. Chapman, 452 U.S. 337, 349 (1981)).
A violation of the Eighth Amendment is shown by demonstrating:
(1) an objectively, sufficiently serious 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
[an appellant]’s health and safety; and (3) that [an appellant]
“has exhausted the prisoner-grievance system . . . and that he
has petitioned for relief under Article 138, UCMJ . . . .”
Lovett, 63 M.J. at 215 (first omission in original) (footnotes omitted) (quot-
ing United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
“[A] prisoner must seek administrative relief prior to invoking judicial in-
tervention” with respect to concerns about post-trial confinement conditions.
Wise, 64 M.J. at 471 (alteration in original) (quoting White, 54 M.J. at 472).
“This requirement ‘promot[es] resolution of grievances at the lowest possible
level [and ensures] that an adequate record has been developed [to aid appel-
late review].’” Id. (alterations in original) (quoting Miller, 46 M.J. at 250); see
also United States v. McPherson, 73 M.J. 393, 397 (C.A.A.F. 2014). “Absent
10 Mr. JE notes in his declaration that the Schleicher County jail is small and only
housed between four and six inmates in its general population while Appellant was
there.
14
United States v. Steinert, No. ACM 39857 (f rev)
some unusual or egregious circumstance,” an appellant must both exhaust the
grievance system at the confinement facility as well as petition for relief under
Article 138, UCMJ. Wise, 64 M.J. at 469 (quoting White, 54 M.J. at 472).
Under Article 66(d), UCMJ, we have broad authority and the mandate to
approve only so much of the sentence as we find appropriate in law and fact
and may, therefore, grant sentence relief, without finding a violation of
the Eighth Amendment or Article 55, UCMJ. United States v. Gay, 74 M.J.
736, 742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); see
United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). Unlike claims raised
under Article 55, UCMJ, or the Eighth Amendment, we may not consider mat-
ters outside the record for a sentence-appropriateness review under Article 66,
UCMJ, unless those matters amplify information already raised in the record.
Willman, 81 M.J. at 359; Jessie, 79 M.J. at 441–42.
3. Analysis
Appellant’s primary complaint is that he was unable to receive his pre-
scribed medication when he was incarcerated, a situation which has not infre-
quently been presented to us in other cases.11 The “[d]enial of adequate medical
attention” may arise to the level of an Eighth Amendment or Article 55, UCMJ,
violation. White, 54 M.J. at 474 (citing United States v. Sanchez, 53 M.J. 393,
396 (C.A.A.F. 2000)). The standard is “reasonable” medical care rather than
“perfect” or “optimal” care. Id. at 475 (citation omitted). Although Appellant
elected not to bring his prescription medication with him to Texas—where his
court-martial was going to take place—and despite the fact that at least one
medical provider noted in Appellant’s records that he had stopped taking his
medications a week before his trial, Appellant has demonstrated that he had
active prescriptions for medications for his diagnosed anxiety, insomnia, and
depression. There is also no dispute Appellant was not provided either his pre-
scribed gabapentin or trazodone while he was confined at Schleicher County
at the behest of Air Force officials. Although the jail is near Goodfellow AFB—
a base which had a functioning mental health clinic at the time of Appellant’s
incarceration—Appellant did not receive his medication until he was trans-
ferred to Charleston. This was true despite the recommendation of the military
11 See, e.g., United States v. Lopez, No. ACM S32597 (f rev), 2021 CCA LEXIS 349 (A.F.
Ct. Crim. App. 9 Jul. 2021) (unpub. op.); United States v. Walker, No. ACM 39745 (f
rev), 2021 CCA LEXIS 290 (A.F. Ct. Crim. App. 23 Jun. 2021) (unpub. op.); United
States v. Monroe, No. ACM S32547, 2020 CCA LEXIS 108 (A.F. Ct. Crim. App. 10 Apr.
2020) (unpub. op.); United States v. Woods, No. ACM 39403, 2019 CCA LEXIS 309(A.F. Ct. Crim. App. 26 Jul. 2019) (unpub. op.); United States v. McPhatter, No. ACM
39324, 2019 CCA LEXIS 262 (A.F. Ct. Crim. App. 18 Jun. 2019) (unpub. op.); United
States v. Zegarrundo, No. ACM S32430 (f rev), 2019 CCA LEXIS 250 (A.F. Ct. Crim.
App. 13 Jun. 2019) (unpub. op.).
15
United States v. Steinert, No. ACM 39857 (f rev)
doctor performing Appellant’s confinement evaluation and the intervention of
Appellant’s California-based mental health provider, personnel at the Goodfel-
low AFB legal office, and the Goodfellow AFB mental health flight commander.
Once at the Naval Consolidated Brig, Appellant was placed on an anti-depres-
sant regimen the following day and trazodone five days later; he has raised no
complaints about his treatment at this military confinement facility.
We have previously recognized that major depressive disorder is a serious
medical condition, and there is no need to depart from that conclusion here.12
Appellant identified various mental health symptoms which he says worsened
without his medication, and we see only minimal evidence to contradict his
claims. Appellant asked the Schleicher County jail administrator, his provider
in California, and Goodfellow AFB mental health clinic personnel all for help
in obtaining his medications—a strong indication Appellant felt that he needed
the drugs to alleviate symptoms he was experiencing. We do note one mental
health provider indicated on 27 November 2019 that Appellant was not at an
elevated risk of suicide, yet that provider added, “[f]actors likely to increase
risk [of suicide] are lack of medications,” suggesting this provider felt Appel-
lant’s medications were warranted to care for Appellant’s mental health. Even
the mental health clinic’s flight commander described obtaining Appellant’s
prescriptions as the “primary goal.” Nonetheless, Appellant was not given his
medications for the two months he was housed at Schleicher County, despite
the awareness of jail personnel, mental health providers, and the base legal
office. We therefore conclude Appellant has satisfied the first prong of Lovett
by demonstrating “an objectively, sufficiently serious act or omission resulting
in the denial of necessities.” 63 M.J. at 215.
The second Lovett prong calls upon us to determine whether the jail officials
showed a deliberate indifference to Appellant’s health and safety. Id. “Deliber-
ate indifference” requires that the responsible official must be aware of an ex-
cessive risk to an inmate’s health or safety and disregard that risk—“the offi-
cial must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the infer-
ence.” Farmer, 511 U.S. at 837. In Farmer, the Supreme Court concluded this
standard is not met when an official fails “to alleviate a significant risk that he
should have perceived but did not,” because the concept of punishment under
the Eighth Amendment requires the prison official to both know of the health
risk and then not take actions to resolve it. Id. at 838. Although likely a result
of Mr. JE’s failure to investigate Appellant’s health complaints, we conclude
Mr. JE was unaware of a substantial risk of harm to Appellant’s health, and
12 See, e.g., United States v. McPherson, 72 M.J. 862, 873–74 (A.F. Ct. Crim. App. 2013).
16
United States v. Steinert, No. ACM 39857 (f rev)
Appellant has therefore fallen short of demonstrating a violation of either the
Eighth Amendment or Article 55, UCMJ.
Mr. JE admits Appellant told him on 21 October 2019 that “he believed he
needed medication,” that “he had a psychological condition,” and that he
wanted “a new regiment [sic] for his psychological medications.” This conver-
sation occurred a week and a half after Appellant was booked into the county
jail. While Mr. JE promptly reached out to his “primary contact” who said he
or she would “get back to” Mr. JE, Mr. JE’s efforts regarding this matter ap-
parently stopped there. We see no indication Mr. JE’s contact ever re-engaged
with him or that Mr. JE followed up on the matter at any time in the following
seven weeks Appellant remained at the jail. At odds with Appellant’s claim
that he made “numerous requests” of jail personnel for his prescriptions, Mr.
JE claims Appellant never asked again for medical attention or prescription
medication—a claim we are somewhat skeptical of, given Appellant’s persis-
tent efforts to obtain his medications through other means and the clear aware-
ness of the matter on the part of Goodfellow AFB personnel.13 Regardless of
whether Appellant made “numerous requests” or only a single request to the
staff at Schleicher County, Mr. JE was aware of Appellant’s 21 October 2019
request for “a new regiment [sic] for his psychological medications,” yet did
nothing more than inconclusively reach out to a contact. While Mr. JE per-
ceived Appellant’s request important enough to “immediately” seek guidance
from this contact, he let the matter languish thereafter. As a result, Mr. JE
only generally knew Appellant had “a psychological condition” and was una-
ware of Appellant’s specific diagnosis, his existing prescriptions, and what risk
Appellant’s health faced without the medications. Mr. JE’s declaration does
not indicate he knew more than that, and Appellant does not assert he com-
municated anything more to Schleicher County staff other than his requests
for “my medication” and “to schedule an appointment with the medical facility
at Goodfellow AFB to address [his] medical concerns.”
Although major depressive disorder is a serious medical condition, Appel-
lant must demonstrate prison officials knew the health risks he faced by virtue
of having that diagnosis in order for us to find a violation of his rights. Appel-
lant may have established negligence on the part of Schleicher County officials,
but negligence is insufficient to establish a violation under the Eighth Amend-
ment or Article 55, UCMJ, and Appellant’s assertion of error therefore merits
no relief.
13 We have considered whether a post-trial evidentiary hearing is required to resolve
this factual dispute, but we determine one is not needed under United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997).
17
United States v. Steinert, No. ACM 39857 (f rev)
Because Appellant has not shown a deliberate indifference to serious med-
ical needs under the standard established by the Supreme Court, we need not
assess whether or not Appellant exhausted the grievance system at Schleicher
County or whether we should overlook the fact he did not make a complaint
under Article 138, UCMJ. Further, the events at Schleicher County all oc-
curred after Appellant was sentenced, and Appellant did not raise concerns
about his confinement conditions in either of his clemency submissions, which
means “the entire record” is silent on this matter. As a result, we cannot con-
sider his complaints about confinement conditions raised solely on appeal un-
der an Article 66, UCMJ, sentence-appropriateness theory. Willman, 81 M.J.
at 359.
III. CONCLUSION
The EoJ is modified as follows:
(1) The wording in the findings column for Charge I and its spec-
ification is modified to add the words “with prejudice” after the
word “dismissed;”
(2) The wording in the findings column for Charge II and its five
specifications is modified to add the words “with prejudice” after
the word “dismissed;” and
(3) The wording in the plea column for Specifications 6, 7, and 8
of Charge III is modified to add the words “with prejudice” after
the word “dismissed.”
The findings and sentence as entered in the modified EoJ are correct in law
and fact, and no error materially prejudicial to the substantial rights of Appel-
lant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Ac-
cordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
18