United States v. Matthews

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

No. ACM 39593
________________________

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

Appeal from the United States Air Force Trial Judiciary
Decided 2 June 2020
________________________

Military Judge: Matthew D. Talcott.
Adjudged sentence: Bad-conduct discharge, confinement for 18 months,
reduction to E-1, and a reprimand. Sentence adjudged 23 August 2018
by GCM convened at Minot Air Force Base, North Dakota.
For Appellant: Major Rodrigo M. Caruço, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Thomas C. Franzinger, USAF;
Major Zachary T. West, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Judge KEY
joined. Chief Judge J. JOHNSON filed a separate opinion concurring 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This is an unpublished opinion and, as such, does not serve as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.
________________________
POSCH, Judge:
A general court-martial composed of officer members found Appellant
guilty, contrary to his pleas, of one specification of sexual abuse of a child by
 United States v. Matthews, No. ACM 39593

indecent communication, and one specification of sexual abuse of a child by
indecent conduct, in violation of Article 120b, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920b. 1 Both convictions involve Appellant’s use of a cell
phone to communicate sexually explicit language and send sexually explicit
images and videos to AG, a child who had not attained the age of 16 years.
Appellant was sentenced to a bad-conduct discharge, confinement for 18
months, reduction to the grade of E-1, and a reprimand. The convening author-
ity approved the adjudged sentence.
Appellant raises two issues pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), that (1) the military judge erred in admitting digital evi-
dence that was extracted from Appellant’s and AG’s phones, and (2) conditions
of Appellant’s post-trial confinement amount to cruel and unusual punishment
and warrant sentencing relief. Finding no error or sentencing relief warranted,
we affirm the findings and sentence.

I. BACKGROUND
Appellant’s convictions are founded on sexually explicit text messages, pic-
tures, and videos he sent to 12-year-old AG. Appellant had been friends with
AG’s older sister for about ten years, and received AG’s cell phone number from
her sister. AG thought of Appellant as an older brother and they began com-
municating using their phones. In the fall of 2017, AG handed her phone to her
mother to share a “meme” she found online. Her mother saw a new text mes-
sage from Appellant in the phone’s notification, which led AG’s mother to dis-
cover sexually explicit pictures and videos Appellant sent to her daughter. AG’s
mother reported Appellant’s conduct to the local county sheriff. Special Agents
of the Air Force Office of Special Investigations (AFOSI) were notified of the
report, obtained AG’s phone, and an investigation of Appellant’s conduct en-
sued.
In findings, the trial counsel presented texts, pictures, and videos that
AFOSI obtained from AG’s phone. The evidence was obtained using an extrac-
tion tool an AFOSI investigator borrowed from a field office of the Federal Bu-
reau of Investigation. The trial counsel presented evidence obtained using the
extraction tool to show Appellant sent texts to AG about the size of his penis
and what Appellant told AG it would be like to have sexual intercourse. The
evidence also showed sexually explicit discussions between Appellant and AG
about female genitalia, oral sex, masturbation, massages, and whether AG had
pubic hair. Investigation revealed eight pictures, and four videos, showing

1 All references in this opinion to the Uniform Code of Military Justice, Military Rules
of Evidence, and Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Mar-
tial, United States (2016 ed.).

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nude women and sexually explicit behavior on AG’s phone. AG testified that
Appellant sent her the texts, pictures, and videos.
At the close of Appellant’s court-martial on 23 August 2018, Appellant en-
tered military confinement at Minot Air Force Base, North Dakota. The record
of trial includes an approved inmate transfer to the Naval Consolidated Brig,
Charleston, South Carolina, with a requested transfer date of 13 September
2018. There are no other transfer records in the record of trial that might indi-
cate where Appellant served the balance of his confinement. On 8 November
2018, Appellant submitted clemency matters to the convening authority, which
were silent about conditions of post-trial confinement.
Appellant claims for the first time on appeal 2 that he has been maltreated
because of complications with a new prison phone system and the prison staff
was biased toward sex offenders. Specifically, Appellant complains the phones
do not allow calls to the Office of the Inspector General, the sexual assault
response coordinator, or the Prison Rape Elimination Act 3 helplines, thereby
enabling staff to mistreat inmates without recourse. Appellant contends
guards compete to see who can “write up” the most inmates; a staff member
known for bias against inmates with a sexual assault-related conviction serves
on the parole hearing board; and multiple parole hearing board members have
admitted they “have an unfavorable recommendation automatically inputted
for any inmate eligible for parole.”
Appellant contends the mistreatment extends to living conditions and Ap-
pellant lacks access to his personal funds. On warm days when inmates are
made to go outside, “the facility does not provide enough water or cups.” In-
mates have also been made to remain outside in the rain while guards take
their breaks. Finally, Appellant claims he has repeatedly asked that his per-
sonal funds be placed in a system so he can have access to them. Although the
staff claims to have permitted access, Appellant claims he “has continued to
demonstrate they have not” and nothing is done to resolve the matter.
We have examined Appellant’s claims and note Appellant does not identify
particular staff members who have committed acts of maltreatment, much less
the facility, military or civilian, where he is confined. And, there is nothing in
the record to indicate Appellant complained to his chain of command or filed a
grievance with confinement officials to seek resolution of his complaints.

2Appellant supplies this information in his brief and did not provide an affidavit or
declaration.
3 34 U.S.C. §§ 30301–30309.

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II. DISCUSSION
A. Digital Evidence Extracted from AG’s Phone
Appellant asserts the military judge erred in admitting text messages, pic-
tures, and videos that the AFOSI investigator obtained from AG’s phone. We
find Appellant waived appellate review of this issue.
1. Additional Background
Before trial, the Government gave Appellant’s trial defense counsel copies
of the evidence that the AFOSI investigator had extracted from AG’s phone.
After trial counsel agreed to redact some of the text messages it intended to
offer, the trial defense counsel variously made Mil. R. Evid. 403 and 404(b),
relevance, and hearsay objections to four texts.
After the military judge held a hearing and ruled on the objections, the trial
counsel moved to admit its exhibits in an Article 39(a), UCMJ, 10 U.S.C. §
839(a), session before voir dire. The trial counsel offered text messages found
on AG’s phone as Prosecution Exhibit 1, and pictures and videos found on AG’s
phone as Prosecution Exhibit 2. 4 The military judge asked trial defense counsel
if she had any objection to Prosecution Exhibit 1. Trial defense counsel stated,
“Understanding that [the Government] do[es] have the witnesses necessary to
lay foundation and authentication, no objection.” The military judge asked trial
defense counsel if she had any objection to Prosecution Exhibit 2, and she sim-
ilarly replied, “Your Honor, again, we acknowledge that the witnesses are pre-
sent and based upon trial counsel’s good faith assertion they do have the wit-
nesses necessary to lay the foundational authentication, no objection.”
Later at trial, and after the military judge admitted both exhibits, trial
counsel called the AFOSI investigator who obtained the evidence from AG’s
phone. The investigator acknowledged he did not have specialized training in
performing phone extractions, and did not have help from someone trained and
qualified to obtain the information. The investigator admitted he was not an
expert using the tool he used to perform the extraction.
2. Law
We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011)
(citation omitted). Whether Appellant has waived an issue is a question of law

4Trial counsel described Prosecution Exhibit 2: “There are eight images of women pos-
ing in sexual positions; they are unclothed. And there are four videos of various women
performing sexual acts, such as masturbation, or sexual acts with other women. And
then there are two Universal Forensic Extraction Device (UFED) reports that show
how those videos were actually found on the victim’s phone.”

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that we review de novo. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F.
2017) (citation omitted). In United States v. Campos, our superior court held
an appellant waived his right to challenge the admissibility of a stipulation of
expected testimony when trial defense counsel affirmatively responded he had
no objection to the stipulation; had been given advance notice of the stipula-
tion; had considered the impact of the stipulation on the appellant’s case; and
when the appellant, on appeal, had not alleged ineffective assistance of coun-
sel. 67 M.J. 330, 332–33 (C.A.A.F. 2009).
Failure to object to the admission of evidence forfeits review of the issues
absent plain error. Eslinger, 70 M.J. at 197–98 (citations omitted). Whereas
forfeiture is a failure to assert a right in a timely fashion, waiver is “the inten-
tional relinquishment or abandonment of a known right.” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citation omitted).
A Court of Criminal Appeals (CCA) is empowered to consider claims even
when those claims have been waived. See United States v. Chin, 75 M.J. 220,
222 (C.A.A.F. 2016) (citing Article 66(c), UCMJ, 10 U.S.C. § 866(c)).
3. Analysis
After the military judge admitted Prosecution Exhibits 1 and 2, the Defense
made a point to highlight on cross-examination that the AFOSI investigator
did not have any special training, and raised doubt about whether he was qual-
ified to perform the extraction from AG’s phone. On appeal, Appellant claims
some text messages were either missing or deleted, and there is no evidence
Appellant sent AG the pictures found on AG’s phone.
We find Appellant waived his right to challenge the authenticity and foun-
dation for admitting Prosecution Exhibits 1 and 2 because trial defense counsel
had been given notice of both exhibits, she affirmatively responded she had no
objection, and gave as a reason for not objecting that trial counsel had wit-
nesses available who were necessary to authenticate the evidence and lay a
foundation for admissibility. Additionally, trial defense counsel made specific
objections to four texts, and at the time she made those objections she did not
also object to any texts, pictures, or videos on grounds of authenticity or foun-
dation. Understanding that we have the authority under Article 66, UCMJ,
and Chin to consider Appellant’s waived objections, we find the underlying
facts are such that we leave Appellant’s waiver intact. See Chin, 75 M.J. at
223.
B. Conditions of Post-Trial Confinement
Appellant urges this court to find he was subjected to impermissible con-
finement conditions in violation of Article 55, UCMJ, 10 U.S.C. § 855, or the

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Eighth Amendment. 5 Appellant also contends the conditions warrant sentenc-
ing relief under this court’s Article 66(c), UCMJ, authority to approve only so
much of a sentence that, based on the entire record, should be approved.
1. Law
“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, UCMJ,
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); see also United States v. Avila, 53 M.J. 99,
101 (C.A.A.F. 2000) (citation omitted).
“[T]he Eighth Amendment 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)). 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
[appellant]’s health and safety; and (3) that [appellant] “has ex-
hausted the prisoner-grievance system . . . and that he has peti-
tioned for relief under Article 138, UCMJ, 10 U.S.C. § 938
[2000].”
Id. (third and fourth alterations in original) (footnotes omitted) (quoting United
States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).
The United States Court of Appeals for the Armed Forces (CAAF) empha-
sized, “[a] prisoner must seek administrative relief prior to invoking judicial
intervention to redress concerns regarding post-trial confinement conditions.”
United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007) (citing United States v.
White, 54 M.J. 469, 472 (C.A.A.F. 2001)). “This requirement ‘promot[es] reso-
lution of grievances at the lowest possible level [and ensures] that an adequate
record has been developed [to aid appellate review].’” Id. at 471 (alterations in
original) (quoting Miller, 46 M.J. at 250). Except under some unusual or egre-
gious circumstance, an appellant must demonstrate he or she has exhausted
the prisoner grievance process provided by the confinement facility and has

5 U.S. CONST. amend. VIII.

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petitioned for relief under Article 138, UCMJ. White, 54 M.J. at 472 (citation
omitted).
Under Article 66(c), UCMJ, we have broad authority and the mandate to
approve only so much of the sentence as we find “correct in law and fact and
determine, on the basis of the entire record, should be approved.” See also
United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002) (observing that the
“legislative history of Article 66 reflects congressional intent to vest broad
power in the Courts of Criminal Appeals”).
2. Analysis
We find Appellant’s post-trial claims do not demonstrate circumstances
warranting relief under Article 55, UCMJ, or the Eighth Amendment. We con-
clude that even if the facts as asserted by Appellant are true, there is insuffi-
cient evidence of an objectively, sufficiently serious act or omission that re-
sulted in the denial of necessities. See Lovett, 63 M.J. at 215. 6 The information
falls far short of any wrongful intent, namely, a culpable state of mind of an
identifiable official amounting to deliberate indifference to Appellant’s health
and safety. See id. Finally, the record does not demonstrate any evidence that
Appellant attempted to use any grievance process to address complaints of mis-
treatment. See id.
Having resolved Appellant’s Article 55 and Eighth Amendment claims, we
next consider if our review of Appellant’s sentence “on the basis of the entire
record,” Article 66(c), UCMJ, permits or precludes our consideration of the
post-trial conditions Appellant presents for the first time on appeal. We con-
clude Article 66(c) limits our review to the record and thus precludes consider-
ation of Appellant’s statements of fact about those conditions.
In United States v. Jessie, the CAAF observed that some of the court’s prec-
edents hold that CCAs “may consider only what is in the record” when review-
ing a sentence under Article 66(c), UCMJ. ___ M.J. ___, No. 19-0192, 2020
CAAF LEXIS 188, at *6 (C.A.A.F. 6 Apr. 2020) (citation omitted). The CAAF
noted that 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 not to approve his punitive discharge based on a favorable psychiatric
assessment and a favorable report regarding his conduct while in confinement.
Jessie, 2020 CAAF LEXIS 188, at *8–9 (citing Fagnan, 30 C.M.R. at 193). The
Army Board of Review declined to consider these documents, explaining that

6Having applied the decisional framework announced in United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997), for evaluating conditions of post-trial confinement, and con-
sidered the entire record, we find we can resolve the issues raised by Appellant without
additional factfinding. See United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F. 2004).

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because the submission “concerns matters which occurred months after the
convening authority acted upon the sentence and forwarded the record of trial,
it is not a part of the record subject to review under Article 66.” Jessie, 2020
CAAF LEXIS 188, at *9 (quoting Fagnan, 30 C.M.R. at 193). The Court of Mil-
itary Appeals, the predecessor to the CAAF, affirmed, holding that under Ar-
ticle 66(c), UCMJ, “the board of review is expressly restricted by Congress to
the ‘entire record’ in assessing the appropriateness of the sentence.” Id. (quot-
ing 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 appro-
priateness of sentences when it has theretofore 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 *10 (emphasis added); see also id. at *18
n.10 (“Because both the sentence appropriateness and correctness in law de-
terminations require a decision based upon the ‘entire record,’ we need not de-
termine whether posttrial confinement conditions fall under one or both provi-
sions.”).
Here, the “entire record” 7 contains no information about the conditions of
Appellant’s post-trial confinement, which fall short of “a legal deficiency” in
violation of Article 55, UCMJ, or the Eighth Amendment. Id. at *10–11 (quot-
ing United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016)). Thus, we are pre-
cluded from considering Appellant’s statement of facts about the conditions in
our Article 66(c), UCMJ, sentencing review. In Gay, the CAAF affirmed a de-
cision of this court that reduced an appellant’s sentence under Article 66(c),
UCMJ, because prison officials, without justification, had made him serve part
of his sentence in maximum security solitary confinement. Gay, 75 M.J. at 266.
Information about these conditions were part of the record of trial because the
appellant had requested additional confinement credit when he complained
about the conditions to the convening authority. Id. at 265–66. Unlike Gay,

7 See R.C.M. 1103(b)(2) (contents of the record) and R.C.M. 1103(b)(3) (matters at-
tached to the record). In addition, the “entire record” includes briefs and arguments
that appellate counsel and appellant personally present regarding matters that are
already in the record of trial, R.C.M. 1103(b)(2), or have been attached to the record of
trial under R.C.M. 1103(b)(3). See Jessie, 2020 CAAF LEXIS 188, at *8 (citing United
States v. Healy, 26 M.J. 394, 396 (C.M.A. 1988)).

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neither the record of trial nor the matters attached to Appellant’s record of
trial mentions the conditions Appellant raises for the first time after the con-
vening authority took action in Appellant’s case.
It may seem incongruous to consider outside-the-record matters to evaluate
Appellant’s Article 55 and Eighth Amendment claims, and then not consider
those matters in this court’s Article 66(c), UCMJ, review of Appellant’s sen-
tence. Nonetheless, our superior court has declined to further erode precedents
like Fagnan to so require it, noting, “We see nothing in the statutory text [of
Article 66(c)] requiring special treatment for all appeals raising statutory or
constitutional claims.” Jessie, 2020 CAAF LEXIS 188, at *18; see also at *17
(rejecting contention “that appellants should have the right to supplement the
record [for a CCA’s Article 66(c) sentencing review] whenever they raise claims
of constitutional or statutory violations”). 8
Following our Article 66(c), UCMJ, mandate to approve only so much of a
sentence that, based on the entire record, should be approved, we conclude this
court lacks authority to consider granting Article 66(c), UCMJ, sentencing re-
lief on the basis of Appellant’s claims about the conditions of post-trial confine-
ment.

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

J. JOHNSON, Chief Judge (concurring in the result):
I agree with my colleagues in the majority that Appellant waived his objec-
tion to the digital evidence from AG’s phone, and that he is not entitled to relief
for cruel or unusual confinement conditions in violation of the Eighth Amend-
ment 1 or Article 55, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 855.
However, I do not join them in concluding that our superior court’s decision in
United States v. Jessie, ___ M.J. ___ , No. 19-0192, 2020 CAAF LEXIS 188

8 “The ‘entire record’ restriction . . . applies equally whether the CCA is reviewing a
sentence’s correctness in law, reviewing a sentence’s correctness in fact, or determining
whether a sentence should be approved.” Jessie, 2020 CAAF LEXIS 188, at *18 (foot-
note omitted).
1 U.S. CONST. amend. VIII.

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(C.A.A.F. 6 Apr. 2020), precludes our review of the appropriateness of Appel-
lant’s sentence pursuant to Article 66, UCMJ, 10 U.S.C. § 866, in a case such
as this where Appellant raises his Eighth Amendment and Article 55, UCMJ,
claims for the first time on appeal and bases them on material outside the orig-
inal record of trial.
That question was not before the United States Court of Appeals for the
Armed Forces (CAAF) in Jessie, where the granted issue involved alleged vio-
lations of the First 2 and Fifth3 Amendments. Jessie, 2020 CAAF LEXIS 188 at
*2. We have previously found this court does have the authority to grant relief
for sentence appropriateness where an appellant seeks relief for an alleged
Eighth Amendment and Article 55, UCMJ, violation based on information out-
side the original record of trial. See, e.g., United States v. McGriff, No. ACM
39306, 2018 CCA LEXIS 567, at *24–25 (A.F. Ct. Crim. App. 11 Dec. 2018)
(unpub. op.), rev. denied, 78 M.J. 487 (C.A.A.F. 2019). 4 Our sister court recently
published an opinion concluding that Article 66, UCMJ, jurisdiction over sen-
tence appropriateness does exist in such circumstances, notwithstanding the
CAAF’s decision in Jessie. United States v. Jacinto, ___ M.J. ___, No.
201800325, 2020 CCA LEXIS 136, at *42–43 (N.M. Ct. Crim. App. 2020). Of
course, this court is not bound by that determination, and I do not purport here
to adopt the reasoning of our Navy and Marine Corps counterparts. The point
is that I believe the CAAF’s position on this point is undecided and unclear.
Moreover, I note Article 66, UCMJ, is the fundamental source of this court’s
authority to review any issue, to include alleged violations of the Eighth
Amendment and Article 55, UCMJ. It does seem incongruous (to borrow the
majority’s term) to find that, under Jessie, we have jurisdiction to review al-
leged violations of the Eighth Amendment and Article 55, UCMJ, based on
material outside the original record of trial, but to find we lack jurisdiction to
consider such materials for the purpose of “affirm[ing] only such findings of
guilty and the sentence . . . as [we] find correct in law and fact and determine,
on the basis of the entire record, should be approved”—which is our fundamen-
tal charge and mandate in accordance with the text of Article 66 itself. See
United States v. Gay, 75 M.J. 264, 268 (C.A.A.F. 2016).
Finally, and importantly, I do not believe the circumstances of this case
require us to divine how the CAAF would rule in this scenario. The CAAF has

2 U.S. CONST. amend. I.
3 U.S. CONST. amend. V.
4The CAAF noted its denial of the petition for review did not indicate that it “either
agree[d] or disagree[d] with the merits of a lower court’s resolution of the case.” United
States v. McGriff, 78 M.J. 487 (C.A.A.F. 2019) (per curiam).

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indicated that our discretionary authority to grant sentencing relief under Ar-
ticle 66, UCMJ, is bounded by the requirement that we identify a “legal error
or deficiency.” Gay, 75 M.J. at 268. With or without the material related to his
Eighth Amendment and Article 55 claims, Appellant has failed to demonstrate
such a legal error or deficiency that would authorize this court to modify his
sentence as a matter of law, rather than as mercy or clemency. See United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
The CAAF may one day adopt the position the majority now takes. How-
ever, in my view, it has not done so yet, and I would resolve sentence appropri-
ateness on the basis that Appellant has failed to demonstrate an error that
would authorize us to grant relief as a matter of law in accordance with Gay.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

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