United States v. Merritt

• Court: United States Air Force Court of Criminal Appeals
• Decided: February 11, 2021
• Docket: ACM 39754
• Status: Unpublished

Opinion

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

No. ACM 39754 ________________________

UNITED STATES Appellee v. Gregory C.S. MERRITT II Senior Airman (E-4), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 11 February 2021 ________________________

Military Judge: Joseph S. Imburgia. Sentence: Sentence adjudged on 23 May 2019 by GCM convened at Kadena Air Base, Japan. Sentence entered by military judge on 6 June 2019: Dishonorable discharge, confinement for 30 months, and reduc- tion to E-1. For Appellant: Major Amanda E. Dermady, USAF. For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Anne M. Delmare, USAF; Mary Ellen Payne, Esquire. Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military Judges. Senior Judge POSCH delivered the opinion of the court, in which Judge RICHARDSON joined. Judge MEGINLEY filed a separate opinion dis- senting in part and in the result. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.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. Merritt, No. ACM 39754

POSCH, Senior Judge: A general court-martial composed of a military judge sitting alone found Appellant guilty in accordance with his plea of one Charge and Specification of wrongful possession of child pornography, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (Manual for Courts-Martial, United States (2016 ed.)). 1 The military judge sentenced Appellant to a dishon- orable discharge, confinement for 30 months, forfeiture of all pay and allow- ances, and reduction to the grade of E-1. In accordance with the terms of a pretrial agreement (PTA), the convening authority disapproved the adjudged forfeitures, and approved the remainder of the adjudged sentence. 2 Also in accordance with the PTA, the convening au- thority deferred the reduction in grade and the adjudged and mandatory for- feitures of pay and allowances from 6 June 2019 until the date the entry of judgment (EoJ) was signed by the military judge. 3 The PTA required the con- vening authority to waive the mandatory forfeitures for a period of six months or expiration of Appellant’s term of service, whichever was sooner, with the waiver commencing on the date the EoJ was signed by the military judge. The convening authority did so, and directed the waived forfeitures to be paid to a court-ordered conservator for the benefit of Appellant’s two dependent chil- dren.

1The Charge and its Specification were referred to trial after 1 January 2019; as such, unless otherwise specified, all other references to the Uniform Code of Military Justice (UCMJ), and to the Rules for Courts-Martial (R.C.M.), in this opinion are to the Man- ual for Courts-Martial, United States (2019 ed.) (2019 MCM). See Exec. Order 13,825, §§ 3 and 5, 83 Fed. Reg. 9889, 9890 (8 Mar. 2018) (establishing 1 January 2019 as the effective date for changes to the UCMJ and R.C.M. made by the Military Justice Act of 2016 (MJA)). 2 Appellant was convicted of a specification that alleged the commission of an offense before 1 January 2019. Consistent with the respective opinions of the judges of this panel in United States v. Barrick, No. ACM S32579, 2020 CCA LEXIS 346 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.), and subsequent cases, we find that action on the components of the sentence that the convening authority effectuated without mod- ification was not required. Nonetheless, the convening authority’s Decision on Action memorandum is “clear and unambiguous,” United States v. Politte, 63 M.J. 24, 25–26 (C.A.A.F. 2006) (footnotes omitted), and Appellant suffered no prejudice even if there was error. 3The convening authority signed the Decision on Action memorandum on 5 June 2019, and the entry of judgment (EoJ) was signed on 6 June 2019.

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Appellant raises two issues on appeal. In his first assignment of error, Ap- pellant argues his confinement conditions at two military facilities were cruel and unusual under the Eighth Amendment to the United States Constitution 4 and Article 55, UCMJ, 10 U.S.C. § 855. He further argues that even in the absence of an Eighth Amendment or Article 55, UCMJ, violation, his confine- ment conditions rendered his sentence inappropriately severe, warranting re- lief under Article 66(c), UCMJ, 10 U.S.C. § 866(c), 5 and United States v. Gay, 75 M.J. 264 (C.A.A.F. 2015). In a second assignment of error, Appellant claims his case was not timely docketed with this court. Finding no error, and following this court’s Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1) (Manual for Courts-Martial, United States (2019 ed.) (2019 MCM)), mandate to approve only so much of the sentence as we find, on the basis of the entire record, should be approved, we affirm the findings and the sentence.

I. BACKGROUND Appellant’s conviction is founded on his plea of guilty to wrongfully pos- sessing child pornography. Appellant committed the charged offense when he was stationed at Kadena Air Base, Japan. Appellant’s conduct came to the attention of military authorities in April 2018, after his wife discovered an animated depiction of child pornography on their home computer’s desktop. Appellant had recently downloaded the file from the Internet and not yet moved it to a password-protected folder that his wife could not access. Upon discovering the file, she called Security Forces, who in turn, contacted special agents of the Air Force Office of Special Investiga- tions (AFOSI). AFOSI agents viewed the suspected contraband, contacted a military magistrate, and obtained authorization to search and seize Appel- lant’s electronic devices for evidence. As stipulated at trial, analysis of the computer hard drive where the sus- pected child pornography was found revealed that Appellant possessed 428 files with hash values on file with the National Center for Missing and Ex- ploited Children (NCMEC). A NCMEC-positive hash value indicates that the hash value for a file which was previously identified as being connected to an

4 U.S. CONST. amend. VIII. 5References to Article 66(c), UCMJ, 10 U.S.C. § 866(c), in this opinion are to a version that was in effect before implementation of the MJA as incorporated in the 2019 MCM, which is substantially similar to Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1).

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actual victim of child pornography matched the hash value of a file on Appel- lant’s computer. Of those files, 399 were still pictures and 29 were videos. 6 Thirty-three known children were connected to positive hash values on file with NCMEC found on Appellant’s hard drive. At trial, the military judge dis- cussed with Appellant that counsel for both parties agreed that a “representa- tive sample” consisting of 17 video files and 11 images files from his hard drive constituted child pornography. Appellant agreed that was his understanding as well. Evidence at trial established that seizure of Appellant’s computer hard drive revealed that he wrongfully possessed child pornography from 12 Sep- tember 2017 to 8 April 2018.

II. DISCUSSION A. Conditions of Post-Trial Confinement 1. Additional Background In his appeal, Appellant submitted a sworn declaration and asks this court to reduce his sentence because he was denied sterile water and medical sup- plies for his prescribed Continuous Positive Airway Pressure (CPAP) machine. Appellant entered confinement on 23 May 2019 at the Marine Corps Installa- tions Pacific Brig at Camp Hansen, Japan. During his intake physical later the same day, Appellant informed confinement officials of his diagnosed obstruc- tive sleep apnea and that he required his CPAP machine. Appellant explains in his declaration that the condition causes his breathing to repeatedly stop and start during sleep. The CPAP machine works by blowing air into his throat via a mask to increase air pressure and prevent narrowing of his airway. Appellant explains in his declaration that confinement officials brought him his machine nightly to assist him to sleep. Some CPAP machines, includ- ing his, have a humidifier to prevent dryness of the mouth and nose. On 30 July 2019, Appellant informed officials he needed new supplies, which were not provided even though he followed up on that request two or three times. In early August 2019, Appellant noticed the water in the machine had a distinctive “rusty orange tint” that was consistent with the color of the water from the drinking fountain. He “also noticed a buildup of rust in [his] machine.” He brought up this issue to a confinement official, explaining that the machine required sterile water and that he was concerned for his health. Appellant be- lieves that as a result of the continued use of discolored, unsterile water he developed painful sores on the inside of his nose. He had never noticed residue,

6 Twenty-three of the video files were playable and depicted child pornography.

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nose sores, or any other adverse effects in the three years he had been using the machine, and believed these things occurred because of the water that con- finement officials were providing him to use. Appellant stressed to these offi- cials the importance of regularly cleaning the machine and that medical pro- viders who prescribed the machine had recommended that Appellant replace his supplies every three months for proper maintenance and maximum effec- tiveness. Appellant renewed his request for supplies on 9 September 2019, and filed a grievance using Department of Defense Form 510, Prisoner Request. Appel- lant emphasized his need for sterile water and medical supplies for proper maintenance. A few days later, confinement officials began bringing Appellant sealed bottles of water, but did not resolve Appellant’s supply request. On 14 September 2019, Appellant was transferred to the Naval Consoli- dated Brig Charleston at Joint Base Charleston, South Carolina. Upon arrival, he informed confinement officials that he had been trying to order new supplies for the machine while at Camp Hansen. Although officials in Charleston in- formed Appellant that they would work on the issue, as of one day before filing his brief supporting his assignments of error, 10 December 2019, he had yet to receive those supplies. In response to Appellant’s declaration, the Government provided declara- tions from officials at both confinement facilities. The executive officer at Ma- rine Corps Installations Pacific Brig declared that medical staff forwarded the referral for the CPAP cleaning supplies to the 18th Medical Group at Kadena Air Base, Japan, on 30 July 2019. On 9 September 2019, Appellant made an inquiry to the medical staff at the brig, asking about the status of his CPAP re- supply. Later that same day the staff counseled him to clean his CPAP every morning and advised him that they would follow-up on his CPAP re-supply request. The legal officer at Naval Consolidated Brig Charleston declared that on 8 October 2019, Appellant requested CPAP supplies from its medical staff. On 10 October 2019, medical personnel contacted the CPAP supply company and ordered the requested items. On 18 November 2019, 26 November 2019, and 4 December 2019, Appellant returned to the medical staff for only CPAP water. On 12 December 2019, Appellant inquired again about CPAP supplies, and that same day medical staff were unsuccessful attempting a follow-up on their CPAP supply request. The legal officer noted that Appellant currently has CPAP “equipment that is functioning fine with the exception of a head strap that comes unattached while he sleeps, and he reattaches it.” On 19 December 2019, the Senior Medical Corpsman at Charleston spoke with the manager from the CPAP supply company and “was assured that [the manager] would fix the delay in supplies issue with his staff.”

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2. Law At the outset, we note that counsel for both parties reference this court’s Article “66(c),” UCMJ, authority to affirm “the sentence or such part or amount of the sentence, as” this court “finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Although this language is unchanged in the 2019 MCM, in a case like Appellant’s in which the Charge and Specification were referred to trial after 1 January 2019, the scope of this court’s jurisdiction is codified in Article 66(d)(1), UCMJ (2019 MCM). See Exec. Order 13,825, §§ 3(a) and (d), 83 Fed. Reg. at 9890 (changes directed by the MJA “shall take effect on January 1, 2019,” and “shall not apply in any case in which charges are referred to trial by court-martial before January 1, 2019”). a. Eighth Amendment and Article 55, UCMJ Under a Court of Criminal Appeal’s (CCA) Article 66(d)(1), UCMJ, mandate to approve only so much of the sentence as it finds “correct in law,” this court cannot affirm “an unlawful sentence, such as one that violates the prohibition against cruel and unusual punishment in the Eighth Amendment and Article 55, UCMJ.” United States v. Jessie, 79 M.J. 437, 440 (C.A.A.F. 2020) (citing United States v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001) and referencing Article 66(c), UCMJ). Claims asserted on the basis of the Eighth Amendment and Ar- ticle 55, UCMJ, are among the “limited class of issues” for which our superior court’s “precedents have allowed the CCAs to consider materials outside the record . . . even though those issues are not raised by anything in the record.” Id.; see also id. at 445 (“Consistent with the Government’s proposal for accom- modating the discordant precedents, all we must decide today is that the prac- tice of considering material outside the record should not be expanded beyond the context of Article 55, UCMJ, and the Eighth Amendment.”). “Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual punishment. In general, we apply the Supreme Court’s interpretation of the Eighth Amendment to claims raised under Article 55, UCMJ, except where legislative intent to provide greater protections under Article 55 . . . is apparent.” United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). To demonstrate a violation of the Eighth Amendment, an appellant must show: (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 [his] health and safety; and (3) that he “has exhausted the prisoner- grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 [U.S.C.] § 938 [2000].”

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United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (omission and third alteration in original) (footnotes omitted). This court’s resolution of the first and second Lovett prongs is informed by the decisions of our superior courts. “Denial of adequate medical attention can constitute an Eighth Amendment or Article 55[, UCMJ] violation.” United States v. White, 54 M.J. 469, 474 (C.A.A.F. 2001) (citing United States v. Sanchez, 53 M.J. 393, 396 (C.A.A.F. 2000)). However, the standard is “reason- able” medical care rather than “perfect” or “optimal” care. Id. at 475. (citing Harris v. Thigpen, 941 F.2d 1495, 1510 (11th Cir. 1991)). The Eighth Amend- ment prohibits “deliberate indifference to serious medical needs of prisoners,” whether manifested by prison guards “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once pre- scribed.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (footnote omitted) (ci- tation omitted). “In order to state a cognizable claim” of medical mistreatment under the Eighth Amendment, “a prisoner must allege acts or omissions suffi- ciently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106. “Deliberate indifference” requires that the responsible official must be aware of an excessive risk to an inmate’s health or safety and disregard that risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[I]t is enough that the of- ficial acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842 (citation omitted). “The Constitution ‘does not mandate com- fortable prisons,’ but neither does it permit inhumane ones.” Id. at 832 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). However, “prison officials who lack[ ] knowledge of a risk cannot be said to have inflicted punishment . . . .” Id. at 844. Under the third Lovett prong, a confinee must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions. White, 54 M.J. at 472. The United States Court of Ap- peals for the Armed Forces (CAAF) has repeatedly held that a confinee “must seek administrative relief prior to invoking judicial intervention to redress con- cerns regarding post-trial confinement conditions.” United States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007) (internal quotation marks and citations omitted). “This generally means that the prisoner will have exhausted the detention cen- ter’s grievance system and petitioned for relief under Article 138, UCMJ.” United States v. Henry, 76 M.J. 595, 610 (A.F. Ct. Crim. App. 2017). “Exhaus- tion requires Appellant to demonstrate that two paths of redress have been attempted, each without satisfactory result.” Wise, 64 M.J. at 471. This re- quirement exists to promote “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 United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).

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b. Sentence Appropriateness, Article 66(d), UCMJ In the absence of an Eighth Amendment or Article 55 violation, we may grant sentence relief due to an appellant’s post-trial treatment under this court’s Article 66(d)(1), UCMJ, mandate to approve only so much of the sen- tence as we find, “on the basis of the entire record, should be approved.” In keeping to its statutory authority, a CCA “may not affirm any portion of a sen- tence that it finds excessive” as part of its sentence-appropriateness review. Jessie, 79 M.J. at 440 (citing United States v. Nerad, 69 M.J. 138, 141 (C.A.A.F. 2010) and referencing Article 66(c), UCMJ). Although a CCA has “broad discretionary power to review sentence appro- priateness,” id. (quoting United States v. Kelly, 77 M.J. 404, 405 (C.A.A.F. 2018)), that authority is not absolute. In Gay, the CAAF affirmed a decision of this court that reduced an appellant’s sentence under Article 66(c), UCMJ, be- cause prison officials had made him serve part of his sentence in solitary con- finement to forestall further violations of Article 12, UCMJ, 10 U.S.C. § 812. 7 75 M.J. at 266. Information about those conditions was part of the record of trial because the appellant had requested additional confinement credit when he complained about them to the convening authority. Id. at 265–66. The CAAF held this court “did not abuse its discretion when it exercised its Article 66(c) sentence reassessment authority for post-trial confinement conditions de- spite its conclusion that the conditions did not rise to a violation of the Eighth Amendment or Article 55[, UCMJ].” Id. at 268. In doing so, the CAAF made clear that the authority to grant sentence appropriateness relief is not unlim- ited and, specifically, a CCA is not empowered to grant relief for any condition of post-trial confinement of which the CCA disapproves. Id. at 269. Rather, a CCA’s authority under Article 66(c), UCMJ, arises when it finds “a legal defi- ciency in the post-trial process.” Id. In other words, the genesis for relief must be “sparked by a legal error.” 8 Id. This court’s sentence appropriateness review is further limited to the “en- tire record,” Article 66(d)(1), UCMJ, that is, “to claims based on post-trial treat- ment that occurs prior to the action of the convening authority and which is documented in the record of trial.” United States v. Towns, 52 M.J. 830, 833

7 “No member of the armed forces may be placed in confinement in immediate associ- ation with enemy prisoners or other foreign nationals not members of the armed forces.” Article 12, UCMJ, 10 U.S.C. § 812 (Manual for Courts-Martial, United States (2012 ed.)). 8 In United States v. Buford, we further explained that Article 66(c), UCMJ, does not confer unlimited authority to “grant relief for an administrative matter unrelated to any legal deficiency and unconnected to the legality or appropriateness of a court-mar- tial sentence.” 77 M.J. 562, 565 (A.F. Ct. Crim. App. 2017).

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(A.F. Ct. Crim. App. 2000) (citing Article 66(c), UCMJ), aff’d, 55 M.J. 361 (C.A.A.F. 2001) (mem.). Nineteen years after the CAAF affirmed Towns, our superior court observed that some of its precedents, like Gay, hold that CCAs “may consider only what is in the record” when reviewing a sentence under Article 66, UCMJ. Jessie, 79 M.J at 440 (citation omitted). The CAAF noted the leading case for these precedents is United States v. Fagnan, 30 C.M.R. 192 (C.M.A. 1961), in which the appellant asked the Army Board of Review to reject his punitive discharge based on a favorable psychiatric assessment and a fa- vorable report regarding his conduct while in confinement. Jessie, 79 M.J. at 441 (citing Fagnan, 30 C.M.R. at 193). The Board of Review declined to con- sider these documents, explaining that because the submission “concerns mat- ters which occurred months after the convening authority acted upon the sen- tence and forwarded the record of trial, it is not a part of the record subject to review under Article 66[, UCMJ].” Id. (quoting Fagnan, 30 C.M.R. at 194). The United States Court of Military Appeals, the predecessor to the CAAF, af- firmed, holding that under Article 66(c), UCMJ, “the board of review is ex- pressly restricted by Congress to the ‘entire record’ in assessing the appropri- ateness of the sentence.” Id. (quoting Fagnan, 30 C.M.R. at 194). The Jessie court reiterated the reasoning in Fagnan that “if military justice proceedings are to be ‘truly judicial in nature,’ then the appellate courts cannot ‘consider information relating to the appropriateness of sentences when it has thereto- fore formed no part of the record.’” Id. (quoting Fagnan, 30 C.M.R. at 195). In Jessie, our superior court concluded that “Fagnan established a clear rule that the CCAs may not consider anything outside of the ‘entire record’ when reviewing a sentence under Article 66(c), UCMJ.” Id. (citation omitted). Specifically in regard to conditions of post-trial confinement, “[t]he rule in Fagnan does not preclude the CCAs from considering prison conditions when reviewing a sentence under Article 66(c), UCMJ, if the record contains infor- mation about those conditions.” Id. at 441–42; see also id. at 444 n.10 (“Because both the sentence appropriateness and correctness in law determinations re- quire a decision based upon the ‘entire record,’ we need not determine whether post-trial confinement conditions fall under one or both provisions.”). Consequently, when we evaluate conditions of post-trial confinement as part of our Article 66(d)(1), UCMJ, sentence appropriateness review, our dis- cretionary power to grant relief must be predicated on a finding of a legal error or deficiency in the post-trial process, and our review is restricted to the rec- ord. 9 The “exercise of our judicial powers is limited to ensuring justice is done,”

9The entire record includes both the record of trial and matters attached to the record of trial. See United States v. Jessie, 79 M.J. 437, 440–41 (C.A.A.F. 2020) (citing United

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which “do[es] not extend to the exercise of clemency.” Towns, 52 M.J. at 833 (citing United States v. Healy, 26 M.J. 394, 395–96 (C.M.A. 1988)). “Only in very rare circumstances do we anticipate granting sentence relief when there is no violation of the Eighth Amendment or Article 55, UCMJ.” United States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017). In conducting our Article 66(d)(1) sentence appropriateness review, we have declined to require appellants to demonstrate they have previously ex- hausted administrative remedies prior to seeking judicial relief. See Henry, 76 M.J. at 610. We instead consider the entire record and typically give “signifi- cant weight” to an appellant’s failure to exhaust those remedies before request- ing judicial intervention. Id. 3. Analysis We have considered whether a post-trial evidentiary hearing is required to resolve any factual disputes between Appellant’s declaration and the declara- tions submitted by the Government. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967). We find a hearing unnecessary in this case. To the extent that the declarations are inconsistent, resolving any factual disputes in Appellant’s favor would not result in relief. See Ginn, 47 M.J. at 248. We consider each of Appellant’s claims in turn. a. Eighth Amendment and Article 55, UCMJ We first address Appellant’s claim that confinement conditions at both mil- itary facilities were cruel and unusual under the Eighth Amendment and Ar- ticle 55, UCMJ. In order to secure relief for cruel and unusual punishment, Appellant bears the burden to demonstrate all three prongs of the Lovett test are met. See 63 M.J. at 215. We conclude that Appellant fails to meet his bur- den to establish grounds for relief. We have considered Appellant’s claim of a lack of responsiveness on the part of prison officials that may have caused an unwarranted neglect of Appel- lant’s medical needs. Even if we accept the facts as asserted by Appellant in his declaration are true, there is insufficient evidence to objectively conclude that a sufficiently serious act or omission occurred that resulted in the denial of necessities. See Lovett, 63 M.J. at 215. The post-trial declarations do not indicate that any prison official was aware of a substantial risk of serious harm

States v. Healy, 26 M.J. 394, 396 (C.M.A. 1988)); see also R.C.M. 1112(b) (Contents of the record 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 personally present regarding matters that are already in the record of trial or have been attached to the record of trial. Id.

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to Appellant’s health or safety and disregarded that risk. Id. We find that Ap- pellant has not presented evidence to establish wrongful intent, namely, that any official denied Appellant sterile water and medical supplies for his pre- scribed CPAP machine in order to increase Appellant’s suffering or the severity of his sentence. Again, even if we were to accept Appellant’s assertions as true, the conduct of prison officials in the record does not rise to the level of “delib- erate indifference to serious medical needs of prisoners” proscribed by the Eighth Amendment whether manifested by prison guards “intentionally deny- ing or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104–05. Furthermore, Appel- lant makes no claim that he suffered any serious or lasting physical harm, and on this record we find none. Additionally, Appellant’s case does not demonstrate any evidence to sug- gest that he attempted to petition for relief under Article 138, UCMJ. See White, 54 M.J. at 471. Appellant was required to exhaust his administrative remedies, which he did not do. In rare circumstances, military appellate courts have excused an appellant’s failure to satisfy this third prong of the Lovett test. See, e.g., Wise, 64 M.J. at 472–73 (finding “unusual” circumstances excused the appellant’s failure to seek relief for an Article 12, UCMJ, complaint through the prisoner grievance or Article 138 processes). However, we do not find Ap- pellant’s case presents such circumstances. Appellant has failed to demon- strate any reason that prevented him from seeking relief under Article 138, UCMJ. To the contrary, Appellant’s case illustrates the rationale for the re- quirement, which serves to “promot[e] resolution of grievances at the lowest possible level . . . [and] to ensure that an adequate record has been developed . . . .” Miller, 46 M.J. at 250. Had the record been developed closer in time to the conditions that Appellant complains of on appeal, this court might have been better informed whether those conditions presented a substantial risk of harm and if the conduct of prison officials was deliberately indifferent to a se- rious medical need. 10 For these reasons, we conclude that Appellant does not warrant relief un- der the Eighth Amendment or Article 55, UCMJ, for the conditions of his post- trial confinement. We depart from the view of our esteemed colleague in the

10 Among the written post-trial and appellate advice Appellant received from trial de- fense counsel was the right to file an Article 138, UCMJ, 10 U.S.C. § 938, complaint “for the poor conditions of [his] confinement.” Appellant was further advised, “In order to get relief from the courts,” one “ordinarily must exhaust every administrative rem- edy available to correct the issue,” including “filing a complaint with the commander who ordered your confinement under Article 138, UCMJ.”

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dissent in his application of the first and second prongs of the Lovett test, 63 M.J. at 215, and his repudiation of the third. b. Sentence Appropriateness, Article 66(d)(1), UCMJ Having resolved Appellant’s Article 55 and Eighth Amendment claims, we next consider if our review of whether Appellant’s sentence should be approved “on the basis of the entire record,” Article 66(d)(1), UCMJ, permits or precludes our consideration of the post-trial confinement conditions that Appellant pre- sents for the first time on appeal. We conclude that Article 66(d)(1), UCMJ, limits our review of the appropriateness of the sentence and thus precludes consideration of Appellant’s statements of fact about his prison conditions in his declaration, which are presented for the first time on appeal. 11 As discussed, this court’s discretionary authority to review sentence appro- priateness is not absolute. In this regard, we have a second point of departure from the dissenting opinion of our esteemed colleague. We are not empowered to grant relief for any condition of post-trial confinement simply because we disapprove of an appellant’s treatment. Gay, 75 M.J. at 269. Rather, our dis- cretion must be grounded on “a legal deficiency in the post-trial process,” id., even though it need not “rise to the level of an Eighth Amendment or Article 55[, UCMJ,] violation in post-trial confinement conditions cases.” Id. at 268. Exercising this court’s duty “to ensure that the severity of the adjudged and approved sentence has not been unlawfully increased by prison officials,” Jes- sie, 79 M.J. at 443 (quoting Erby, 54 M.J. at 478), we find no legal error or deficiency in the post-trial process and thus insufficient grounds to consider these prison conditions as part of our Article 66(d), UCMJ, sentence appropri- ateness review. Furthermore, the “entire record” contains no information about the condi- tions of Appellant’s post-trial confinement. Although we exercise our authority to consider outside-the-record matters to determine if Appellant’s sentence is correct in law under Article 55, UCMJ, and the Eighth Amendment, see Erby,

11 Our dissenting colleague observes that changes Congress made to post-trial pro- cessing in the MJA accelerate the time between adjournment and the convening au- thority’s decision on action, thus lessening an appellant’s opportunity to raise an issue about the conditions of confinement to the convening authority; however, the scope of this court’s Article 66(d)(1), UCMJ, authority is unchanged from the language in Arti- cle 66(c), UCMJ, 10 U.S.C. § 866(c) (2016 MCM), neither enlarging nor reducing our authority to conduct a sentence appropriateness review.

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54 M.J. at 478; see also United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007), 12 we are precluded from further consideration of Appellant’s statement of facts about these conditions to resolve his appeal; our determination whether his sentence is appropriate and “should be approved” as part of our Article 66(d)(1) review is confined to the record. Jessie, 79 M.J. at 441 (referencing Article 66(c), UCMJ). Neither the record of trial nor the matters attached to the record of trial mentions the conditions Appellant raises for the first time after the con- vening authority effectuated Appellant’s sentence when he signed the Decision on Action memorandum on 5 June 2019. Following this court’s Article 66(d)(1), UCMJ, mandate to approve only so much of a sentence that, based on “the entire record, should be approved,” we find no legal error or deficiency in the post-trial process and conclude the record contains no support to grant sentencing relief on the basis of Appellant’s claims about the conditions of post-trial confinement. B. Timeliness of Post-trial Processing Appellant argues he is entitled to relief because his case was not docketed with this court within 30 days of the convening authority’s Decision on Action memorandum. In United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.), this court addressed issues regarding entries of judgment in place of the con- vening authority’s action 13 and how future post-trial processing will be ana- lyzed under United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006): In Moreno, the [CAAF] identified thresholds for facially unrea- sonable delay for particular segments of the post-trial and ap- pellate process. Id. at 141–43. Specifically, the CAAF estab- lished a presumption of facially unreasonable delay where the convening authority did not take action within 120 days of the

12In Jessie, the United States Court of Appeals for the Armed Forces stated it “cabins but does not overrule [the holdings in] Erby or Pena,” at the same time limiting sen- tence appropriateness review under Article 66, UCMJ, to the record. 79 M.J. at 444– 45 (referencing Article 66(c), UCMJ). However, our superior court “may decide in a future case whether these holdings . . . should be overruled, modified, or instead al- lowed to stand as ‘aberration[s]’ that are ‘fully entitled to the benefit of stare decisis’ because they have become established.’” Id. at 445 (citation omitted). 13 The EoJ has significance that action once had, and a convening authority is no longer

required to act on the findings, R.C.M. 1110(e)(1)–(2), or the sentence, R.C.M. 1109(c)(5)(A), (g)(2); R.C.M. 1110(c), (e)(3). See also United States v. Moody-Neukom, No. ACM S32594, 2019 CCA LEXIS 521, at *3–4 (A.F. Ct. Crim. App. 16 Dec. 2019) (per curiam) (unpub. op.) (“The entry of judgment takes the place of action by the con- vening authority under the former procedures in the sense that it ‘terminates the trial proceedings and initiates the appellate process.’” (quoting R.C.M. 1111(a)(2))).

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completion of trial, where the record was not docketed with the court of criminal appeals within 30 days of the convening au- thority’s action, or where the court of criminal appeals did not render a decision within 18 months of docketing. Id. at 142. Moody-Neukom, unpub. op. at *4. However, as we recently noted in United States v. Livak, [d]epending on the length and complexity of the record involved, we can envision cases in which the court reporter is still tran- scribing the proceedings after the convening authority’s deci- sion. As such, the prior 30-day period from action to docketing, which primarily involved transmitting an already-completed [record of trial] to the Court of Criminal Appeals, now overlays substantive actions such as completing the preparation of the record. 80 M.J. 631, 633 (A.F. Ct. Crim. App. 2020). Additionally, this court held that: [T]he specific requirement in Moreno which called for docketing to occur within 30 days of action no longer helps us determine an unreasonable delay under the new procedural rules. How- ever, we can apply the aggregate standard threshold the major- ity established in Moreno: 150 days from the day [the a]ppellant was sentenced to docketing with this court. See Moreno, 63 M.J. at 142. This 150-day threshold appropriately protects an appel- lant’s due process right to timely post-trial and appellate review and is consistent with our superior court’s holding in Moreno. Id. Considering Livak, we review the dates of the post-trial processing in Ap- pellant’s case. Appellant’s trial concluded on 23 May 2019. Seven days later, Appellant submitted clemency. On 5 June 2019, the convening authority signed a Decision on Action memorandum, modifying the sentence to comply with the PTA by taking action on the forfeiture component of the sentence. On 6 June 2019, the military judge signed the EoJ. On 2 July 2019, the court re- porter completed the trial transcript and the record was certified on 15 July 2019. Because contraband was part of the evidence of record, and because the case was tried overseas, logistical issues complicated assembly of the record of trial and forwarding to this court. 14 As such, this case was not docketed with

14In response to Appellant’s assignment of error, and without opposition, a court re- porter chronology and two declarations are attached to the appellate record. Neither

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the court until 14 August 2019. From the conclusion of trial to the convening authority’s decision on action, 13 days passed. Another 70 days passed from completion of the Decision on Action memorandum to docketing. From the conclusion of trial to docketing, just 83 days elapsed, which is substantially less than the 150 days for a threshold showing of facially unrea- sonable delay that this court found in Livak. See 80 M.J. at 633–34. Thus, we find no facially unreasonable delay or violation of Appellant’s due process rights occurred. Nonetheless, assuming arguendo that there was a facially un- reasonable delay, we have assessed whether there was a due process violation by considering the four factors the CAAF identified in Moreno: “(1) the length of the delay; (2) the reasons for the delay; (3) the appellant's assertion of his right to a timely review and appeal; and (4) prejudice [to the appellant].” Moreno, 63 M.J. at 135 (citations omitted). We have also considered that where an appellant has not shown prejudice from the delay, there is no due process violation unless the delay is so egregious as to “adversely affect the public’s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). We discern no prejudice, and we find no violation of Appellant’s rights. In the absence of a due process violation, this court considers whether relief for excessive post-trial delay is warranted consistent with this court’s authority under Article 66(d)(1), UCMJ. See also Gay, 74 M.J. at 744; United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). Having considered the entire record and the particular facts and circumstances of this case, we find Appellant is not entitled to any relief on this issue.

III. CONCLUSION The findings and sentence entered are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles

Appellant nor the Government address whether the documents are part of the “record” or are “attached” to the record. See Jessie, 79 M.J. at 440–41. We assume without de- ciding that the Government is permitted to rebut Appellant’s claim of excessive delay with unchallenged documentation. Accordingly, we consider them in our analysis, rec- ognizing that Appellant has not established a threshold showing of facially unreason- able delay. Cf. Article 66(d)(2), UCMJ, 10 U.S.C. § 866(d)(2) (A Court of Criminal Ap- peals “may provide appropriate relief if the accused demonstrates error or excessive delay in the processing of the court-martial after the judgment was entered into the record.”).

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59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and the sentence are AFFIRMED.

MEGINLEY, Judge (dissenting in part and in the result): I agree with the majority in that Appellant is not entitled to any relief for alleged post-trial delays related to his case. However, I offer a different view than the majority on whether Appellant suffered any cruel or unusual condi- tions of post-trial confinement in violation of the Eighth Amendment 1 or Arti- cle 55, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 855. 2 Appellant did not raise his Continuous Positive Airway Pressure (CPAP) issues in his clemency matters. This is not a surprise, as he had only been in confinement a few days when he submitted his matters, and, as I noted in United States v. Willman, “the time to include post-trial matters in the record is nearly irrelevant; gone are the days when an appellant could be in confine- ment for months before action.” No. ACM 39642, 2020 CCA LEXIS 300, at *28 (A.F. Ct. Crim. App. 2 Sep. 2020) (unpub. op.) (Meginley, J. concurring in the result). Realistically, once the entry of judgment was signed, Appellant would have little, if any, contact with his trial defense counsel, especially once he was transferred from Kadena Air Base, Japan, to Joint Base (JB) Charleston, South Carolina. In a post-trial declaration to this court, Appellant declared that he was pre- scribed a CPAP machine around June 2016 for sleep apnea and used the ma- chine while he slept. Appellant noted the importance of using sterile and/or distilled water, which would prevent any buildup from natural minerals in the machine. Appellant specifically stated, “Medical providers recommend that

1 U.S. CONST. amend. VIII. 2In United States v. Jessie, the United States Court of Appeals for the Armed Forces (CAAF) explained the general rule that the Courts of Criminal Appeals (CCAs) “may not consider anything outside of the ‘entire record’ when reviewing a sentence under Article 66(c), UCMJ[, 10 U.S.C. § 866(c)].” 79 M.J. 437, 441 (C.A.A.F. 2020) (quoting United States v. Fagnan, 30 C.M.R. 192 (C.M.A. 1961)) (additional citation omitted). However, the CAAF also recognized that “some [of its] precedents have allowed the CCAs to supplement the record when deciding issues that are raised by materials in the record,” specifically issues concerning claims of cruel and unusual punishment. Id. at 442; see United States v. Erby, 54 M.J. 476, 477 (C.A.A.F. 2001). In Jessie, the CAAF declined to disturb this line of precedent. Id. at 444. Accordingly, Jessie permits this court’s review of Appellant’s matters. See id. at 444–45.

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CPAP supplies be replaced every three months for proper maintenance and maximum effectiveness.” While he was at the Marine Corps Installations Pacific Brig (MCIPAC) at Camp Hansen, Japan, and supported by his filings with confinement officials, Appellant noticed the water in his machine was discolored and the color seemed consistent with the color of the water from the drinking fountain; Ap- pellant also noticed a buildup in rust in the machine. When he brought the issue to the attention of confinement officials, he was told that “[they were] not using tap water but that . . . the water [they] were using could have expired or that [they] could have received a bad batch.” Appellant stated he was develop- ing painful sores inside his nose. Appellant also discussed his request for sup- plies. Documents provided from both Appellant and the Government show that Appellant made three requests related to his CPAP machine to MCIPAC offi- cials. The first occurred on 28 July 2019, and in his request, Appellant asked for cleaning supplies. On 9 September 2019, Appellant made two requests: one inquiring about his medical supplies, and one request (via a Department of Defense (DD) Form 510, Prisoner Request Form) where Appellant raised con- cerns that brig medical staff personnel were not providing him sterile water to clean his CPAP. Notably, confinement officials acknowledged that, because Ap- pellant was Air Force, his medical care was outside the scope of brig medical [as] USAF prisoners are re- ferred to the 18th Medical Group located on Kadena Air Force [sic] Base, Japan. In this instance, it appears that [Appellant’s] request may have went unanswered for the reason that the 18th Medical Group did not recognize that [Appellant] was in confine- ment. . . . Additionally, while in confinement [Appellant] made over forty-three . . . prisoner requests via DD [Form] 510s, [and] all were satisfactorily addressed. With respect to tap water being given to Appellant instead of sterile water, Appellant complained, The [CPAP] machine requires sterile/distilled water for patient health and machine longevity. I have reason to believe the med- ical staff at this MCIPAC Brig are refilling the sterile water bot- tles with water from the tap [and/or] water fountain. The water is discolored, the machine parts are discoloring, and I am devel- oping painful sores inside of my nose. I wiped the water chamber of the machine and discovered a hefty amount of rust water de- posits.

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Appellant also stated, “Request to know . . . why tap water is being used inside a sterile water container causing my machine and supplies to deterio- rate and causing sores inside my nose.” After Appellant raised the issue of tap water being used instead of sterile water, confinement officials responded to Appellant that medical was “not re- filling sterile water bottle[s] from the tap. They will keep a closer watch of opened bottles. It is YOUR responsibility to periodically clean your machine. Cleaning can be accomplished at medical.” Appellant was transferred to JB Charleston the next week. While at JB Charleston, confinement officials acknowledged Appellant had been trying to order new supplies for his CPAP machine on several occasions. A confinement official noted that “[Appellant] has equipment that is function- ing fine with the exception of a head strap that comes unattached while he sleeps; he reattaches it.” Like most opinions addressing post-trial confinement conditions, the ma- jority cites to the three-part test in United States v. Lovett, 3 where to demon- strate a violation of the Eighth Amendment, an appellant must show: (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 [his] health and safety; and (3) that he “has exhausted the prisoner- grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 [U.S.C.] § 938 [2000].” 63 M.J. 211, 215 (C.A.A.F. 2006) (omission and third alteration in original) (footnotes omitted). Lovett squarely places the burden on an appellant to demonstrate an Eighth Amendment violation. Yet, the law expects a confinee, who has little opportunity for meaningful or expeditious legal assistance, to navigate and exhaust remedies for a grievance he may legitimately have, against individuals whose primary responsibility, in part, is to ensure his pun- ishment is served. 4 Under the current state of the law, even if a confinee is able to prove the first factor under Lovett, it is a rare case where a confinee will be able to prove the state of mind of prisons officials and deliberate indifference. Confinement

3According to Lexis research, approximately 71 appellate opinions have cited the Lovett test to date. 4 See Dep't of Defense, Instr. 1325.07, Administration of Military Correctional Facili- ties and Clemency and Parole Authority (Mar. 11, 2013, Incorporating Change 4, Au- gust 19, 2020).

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facility officials respond, and the confinee, who is locked away, with little re- course and little opportunity to question officials or gather evidence, has the burden of proving deliberate indifference. In other words, the current state of the law comes too close to blindly accepting that any response to a confinee’s grievance from prison officials that sounds even remotely reasonable, and whether valid or not, will counter any deliberate indifference. And, even if a confinee does everything he or she is supposed to do, if they fail to file an Article 138, UCMJ, 10 U.S.C. § 938, complaint, then that confinee has failed to demon- strate an Eighth Amendment violation. To quote Judge Sullivan on this issue, “it seems patently unfair to me to deny [Appellant’s] claim on the post-factum basis that he failed to follow proper procedure.” United States v. Miller, 46 M.J. 248, 251 (C.A.A.F. 1997) (Sullivan, J., dissenting). In his dissent in United States v. Wise, Chief Judge Effron raised the issue of confinement conditions, and which party should bear the burden of proving exhaustion of remedies. 64 M.J. 468, 478 (C.A.A.F. 2007) (Effron, C.J., dissent- ing). Recognizing that “the exhaustion requirement promotes two goals: (1) res- olution of grievances at the lowest possible level; and (2) development of an adequate record for judicial review,” id., Judge Effron stated, The Supreme Court concluded that failure to exhaust adminis- trative remedies is an affirmative defense available to the gov- ernment in civil litigation about prison conditions. In that con- text, once a prisoner raises a claim of illegal punishment, the burden is on the government to prove failure to exhaust. Id. at 479 (Effron, C.J., dissenting) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)). Judge Effron further stated, Our practice of placing the burden on an appellant to prove ex- haustion is a judicial doctrine, not specifically required by the [UCMJ] or the Manual for Courts-Martial. In light of the Su- preme Court’s decision in Jones, [549 U.S. at 215], it is not ap- parent why the prison condition litigation in the military should not place the burden on the government rather than on the de- fense to demonstrate a failure to exhaust available remedies. Id. In Appellant’s case, if we were to place the burden on the Government to show it provided appropriate medical care, and not Appellant, arguably, the Government would have failed its burden. Applying the facts to the three-part Lovett test, I would find Appellant met the requirements of the first two fac- tors. Appellant used a CPAP machine, a device which assists his breathing due to sleep apnea. He made a request for sterile water and parts. He made a report that discolored water was being used and the ramifications of using non-sterile

19 United States v. Merritt, No. ACM 39754

water. Appellant reported he was told he had been provided “expired water” (which is unexplained by confinement officials). What is perhaps the most tell- ing of responses by confinement officials is their baffling response to Appellant, which was that he needed to clean his equipment. Appellant’s case does not involve a wool blanket 5—not having the proper equipment for a breathing ap- paratus is an objectively, sufficiently serious act or omission resulting in the denial of necessities to properly use the device. I would find Appellant met the first prong. The second prong appears to place a near-impossible burden on most ap- pellants, and “requires” Appellant to show “a culpable state of mind on the part of prison officials amounting to deliberate indifference to [his] health and safety.” 6 It essentially places the credibility of Appellant, who is in jail for com- mitting a crime, against the credibility of confinement officials. Yet, there was no reason for Appellant to exaggerate his complaint. As seen by the responses, MCIPAC officials placed the burden of medical care on Air Force officials, and then instructed Appellant to clean his machine. Appellant’s medical treatment continued to pose problems after he was transferred to JB Charleston. Officials there said the supplies were backordered, however, this is JB Charleston’s re- sponsibility, not Appellant’s. These responses simply do not appear to be cred- ible, but at the very least, evidence a lack of attentiveness, concern, and com- petence. Based on confinement officials’ responses, there is simply no good rea- son for the delay in supplies. Appellant could have filed a DD Form 510 every day, but that would be unreasonable. Appellant did what he was supposed to do and exhausted the prisoner grievance system, to no avail. Based on the con- finement officials’ responses, I would find there has been deliberate indiffer- ence by denying or delaying Appellant’s serious medical needs. Finally, the current state of the law requires that an appellant must file an Article 138, UCMJ complaint, unless Appellant’s confinement conditions were so unusual or egregious so as to negate the need for the requirement. Unlike the facts in Wise, 7 Appellant’s case involves the need for medical assistance to maintain the proper functioning of a medically prescribed machine that needs medical attention or assistance throughout its use. As such, we look to the third prong of the Lovett test, that an appellant “has exhausted the prisoner-griev- ance system . . . and that he has petitioned for relief under Article 138, UCMJ.” An appellant can file all the complaints with prison officials he or she desires,

5See United States v. Flores, No. ACM 39253, 2018 CCA LEXIS 443, (A.F. Ct. Crim. App. 13 Sep 2018) (unpub. op). 6 Lovett, 63 M.J. at 215–16. 7 In Wise, the CAAF found unusual circumstances in the appellant’s post-trial condi- tions negating the need to file an Article 138 complaint. See 64 M.J. at 472.

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but unless the confinement conditions are unusual or egregious, if the appel- lant fails to petition for relief under Article 138, UCMJ, they are not entitled to relief from this court for an Eighth Amendment or Article 55, UCMJ, claim. In other words, an appellant is entitled to reasonable health care; however, no redress is available under this legal theory, unless he or she objected to it in a specific way. A careful review of legal precedent reveals how the Lovett Article 138, UCMJ, factor developed. If one follows the citations from Lovett, the United States Court of Appeals for the Armed Forces (CAAF) cites to United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997), which quotes United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 1993), which cites to Walker v. Commanding Officer, 41 C.M.R. 247 (C.M.A. 1970), which appears to be the initial basis for the Ar- ticle 138 requirement. In Walker, the court stated that Article 138[, UCMJ], provides for consideration of a com- plaint by a person in confinement following conviction and before the end of appellate review. If such a person believes the circum- stances of his custody violate either Article 13[, UCMJ, 10 U.S.C. § 813] or Article 71(c)[, UCMJ, 10 U.S.C. § 871(c)], he may apply for redress to his Commanding Officer. 41 C.M.R. at 250 (emphasis added). The court in Walker further noted that if an appellant is unsuccessful in securing relief under Article 138, UCMJ, that appellant still has the opportunity to present to the court evidence “that the circumstances of his confinement were in violation of the code.” Id. at 251. Coffey was decided 23 years later. In this per curiam opinion, the Coffey court, citing to Walker, made the Article 138 requirement a must, stating, While Article 55, UCMJ, 10 [U.S.C.] § 855, prohibits such [cruel and unusual] punishment, and under appropriate conditions we might exercise our power to issue an extraordinary writ, a pris- oner must seek administrative relief prior to invoking judicial intervention. In this regard [an] appellant must show us, absent some unusual or egregious circumstance, that he has exhausted the prisoner grievance system of the Disciplinary Barracks and that he has petitioned for relief under Article 138, UCMJ, 10 USC § 938. 38 M.J. at 291 (citation omitted). In Miller, a case which dealt with the exercise of religious beliefs, the CAAF revisited Coffey, and shed more light on the Article 138 requirement, stating, In addition to promoting resolution of grievances at the lowest possible level, the exhaustion requirement in Coffey is intended

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to ensure that an adequate record has been developed with re- spect to the procedures for considering a prisoner grievance and applicable standards. An appellant who asks us to review prison conditions, a matter normally not within our appellate jurisdic- tion, must establish a [c]lear record demonstrating both the legal deficiency in administration of the prison and the jurisdictional basis for our action. 46 M.J. at 250. In Miller, there was no record that the appellant exhausted the prisoner-grievance system or pursued remedies under Article 138, UCMJ. Id. (footnote omitted). However, as previously mentioned, Judge Sullivan dis- sented, stating, [T]he majority recognizes that “there is no clear-cut procedure for a military prisoner to follow in order to obtain relief from il- legal post-trial confinement.” Yet, it fatally faults [the] appel- lant, a short-term prisoner, for not demonstrating that he ex- hausted certain formal methods of seeking relief such as the ap- plicable prisoner-grievance system, the Article 138, UCMJ, 10 U.S.C. § 938, complaint procedure, or a post-trial claim to the military judge. This hypertechnical approach is unacceptable be- cause it ignores the reasonable steps that appellant did take to present his religious claim in a timely and competent fashion.[ 8] Id. at 251 (Sullivan, J., dissenting). Appellant’s case does not involve religious freedom, but it does involve the need for medical attention, requests which were timely documented and should not have been ignored. It is easy for a Court of Criminal Appeal (CCA) to deny Appellant’s relief because he did not file an Article 138 complaint. It would also be easy to say that Appellant’s requests should bow to the demands and nui- sances of prison life. Yet, the mere fact that we can deny relief to a female prisoner who was not provided feminine hygiene products, or a diabetic pris- oner denied testing supplies, or a prisoner who was not provided a mask (or given other precautions) during a pandemic, all because that confinee did not file an Article 138 complaint, underscores the fact that there are some basic level of human necessities, that are so obvious, that addressing those needs should not require a prisoner to file administrative paperwork to alert jail of- ficials of that necessity. Our system should be better than this line of thinking.

8 Judge Sullivan makes a distinction between Coffey and Miller, in that appellant Mil- ler had already served his term by the time the case reached the CAAF, whereas ap- pellant Coffey was still in confinement. See Miller, 46 M.J. at 251 (Sullivan, J., dis- senting).

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I recognize that one benefit, if not the most important benefit, of the Article 138 requirement is that it limits the potential for abuse in the filing of com- plaints and tries to have complaints resolved outside the court system. In prac- tical terms, if an appellant has an Eighth Amendment issue, yet files numerous extensions of time with a court to address assignments of error, and never says anything about his post-trial conditions until months (or years) after his case is docketed, courts should be and must be highly skeptical of his or her claims and those claims should be highly scrutinized. Further, trial defense counsel should be emphasizing this requirement in their post-trial advisements (and not merely on the day of trial), and later, appellate defense counsel should be advising their client of this Article 138, UCMJ, requirement immediately upon their detail; Lovett, and the precedent established by it, has been in existence for quite some time. 9 Conversely, in Appellant’s case, although he did not file an Article 138 complaint, because his counsel moved expeditiously to file his assignments of errors (to her great credit), there would have been a smaller window to file an Article 138 complaint (and present it to this court). Yet, it has been nearly 14 months since that filing occurred and we are only now ad- dressing his issue. Whether Appellant has received any relief or resolution is a mystery. There is also a practical issue to the Article 138, UCMJ, requirement: the law assumes most servicemembers can articulate how to file an Article 138 complaint, or know to whom they would petition for relief. 10 Even if Appellant’s commander had been served the Article 138 complaint, what exactly is he or she going to do? Does Appellant’s commander have the authority to order con- finement officials to provide CPAP supplies? More importantly, who is Appel- lant’s commander, now that Appellant has been in confinement for nearly 18 months? 11 If these questions cannot be readily answered, how do we expect an appellant to know? Assuming an appellant has filed an Article 138 complaint, would that filing absolve confinement officials from their responsibilities of en- suring a confinee’s medical needs are met, 12 shifting the burden on a com- mander, who may not be easily identified, who may be on the other side of the world, and may not have even known the appellant? In the end, I agree with

9 Unlike many other cases involving these issues, Appellant’s counsel expeditiously filed his assignments of error with the court. 10Trial defense counsel typically do advise appellants how to address confinement con- ditions in their post-trial and appellate rights advisement. 11Noticeably absent from the post-trial submissions is whether Appellant had any con- tact from his leadership before he was transferred to JB Charleston. 12 See Taylor v. Riojas, __ S. Ct.__, 208 L. Ed. 2d 164 (2020), which recently addressed issues of “qualified immunity.”

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Appellant’s statement that his commander “cannot possibly be in a better po- sition than his confinement officials to order new CPAP supplies.” When the CAAF revisited Coffey in Miller, the court noted that “prisoner complaints are a vexing problem.” 46 M.J. at 249. Nearly 25 years later, pris- oner complaints are still a vexing problem. Appellant received an appropriate punishment for his crimes, and long after this opinion is released, he will con- tinue to feel the effects and ramifications of his crimes, and rightfully so. Yet while some people may read this dissent and find it to be somewhat trivial, to Appellant his medical issue was significant enough to file multiple complaints at two confinement facilities and directly contact 18th Medical Group on Oki- nawa, Japan. Conversely, it seems even more trivial not to provide Appellant with a few jugs of distilled water and the proper supplies, so he could properly use his machine. Perhaps Lovett is not that constraining. Even without the Article 138, UCMJ, requirement, this court could still grant relief under Article 66(d), UCMJ. However, in light of evolving case law post-Jessie, and unresolved ques- tions on this court’s capability to consider post-trial submissions, I am not con- fident this court will fully retain our ability to review sentence appropriateness under Article 66(d) as we go forward. Appellant’s case is an example of why it may be time to reconsider the Article 138, UCMJ, prong of Lovett. Whether an appellant should have made an Article 138 complaint, instead of making it a mandatory requirement, gives this court more flexibility in making these de- terminations, instead of shutting the door on an appellant based on a proce- dural issue. Nonetheless, although Appellant did not submit an Article 138 complaint, under our broad authority and mandate under Article 66(d), UCMJ, as it now stands, I would grant some sentence relief due to Appellant’s post-trial treat- ment. 13 See United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002).

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

13See United States v. Willman, No. ACM 39642, 2020 CCA LEXIS 300, *26–28 (A.F. Ct. Crim. App. 2 Sep. 2020) (unpub. op.) (Meginley, J. concurring in the result), rev. granted, __ M.J. __, No. 21-0030, 2020 CAAF LEXIS 692 (C.A.A.F. 21 Dec. 2020).