(dissenting):
JURISDICTION
I disagree with the appellate court below that it had no jurisdiction to entertain appellant’s claim for sentence relief based on her post-trial sexual harassment by her prison guards. See generally Walker v. United States, 19 USCMA 247, 251, 41 CMR 247, 251 (1970) (Court of Military Review may take violations of law concerning conditions of confinement during appellate review into account in its determination of an appropriate sentence); see also United States v. Miller, 46 MJ 248, 250 (1997). The Supreme Court’s decision in Clinton v. Goldsmith, 526 U.S. 529, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999), does not render military appellate courts impotent in this regard. In my view, Article 55, UCMJ, makes unlawful post-trial punishment a matter of law related to “the review of specified sentences imposed by courts-martial” under Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867. Id. at 534, 119 S.Ct. 1538; see also Article 71(c)(2), UCMJ, 10 USC § 871(e)(2) (execution of sentence).
Article 55, UCMJ, expressly authorizes more than review of sentences adjudged by a court-martial. It states: .
§ 855. Art. 55. Cruel and unusual punishments prohibited
Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may *398not be adjudged by a court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
(Emphasis added.) Sexual harassment is not a lawful punishment under our Code, nor was it adjudged as punishment by appellant’s court-martial. The “infliction” of such punishment on a military prisoner by prison guards, over and above that adjudged by the court-martial, is unquestionably a matter of codal concern. See Clinton v. Goldsmith, supra at 536, 119 S.Ct. 1538 (“It would presumably be an entirely different matter if a military authority attempted to alter a judgment by revising a court-martial finding and sentence to increase the punishment, contrary to specific provisions of the UCMJ....”).
The federal district courts remain open for the military prisoners to present claims for injunctive, declaratory, or habeas relief based on unlawful post-trial confinement conditions. See Walden v. Bartlett, 840 F.2d 771, 775 (10th Cir.1988), and Marrie v. Nickels, 70 F.Supp.2d 1252, 1259-60 (D.Kan.1999). Claims for monetary damages, however, are barred by the Feres doctrine. Id. at 1261. Nevertheless, our unique military justice system permits convicted servieemembers to make claims on direct appeal for judicial sentence relief based on unlawful post-trial punishment. Walker v. United States, supra. Resort to this military legal remedy, prior to seeking relief in the federal district court, is not only authorized but appropriate. See generally Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) (“But implicit in the congressional scheme embodied in the Code is the view that the military court system generally is adequate to and responsibly will perform its assigned task. We think this congressional judgment must be respected and that it must be assumed that the military court system will vindicate servicemen’s [or women’s] constitutional rights.”).
REQUIRED PREJUDICE
I also disagree with the majority of this Court that “verbal sexual harassment at the level appellant suffered is insufficient to establish conduct amounting to cruel and unusual punishment” under the Eighth Amendment and Article 55, UCMJ. 53 MJ at 395. It opines that “clinically documented psychological trauma” such as “diagnosed anxiety or depression” must be shown and was neither alleged or proven in this case. Id. at 396. In my view, appellant has made a prima faeie case of sufficient pain required by the Eighth Amendment and Article 55, UCMJ, and a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), is warranted on this issue if contested by the Government.
In this regard, I note that appellant’s claims of sexual harassment were investigated by the Commanding Officer, Naval Consolidated Brig Miramar and found to be corroborated. See Appendix A and B. I see no reason at this stage of the proceedings to doubt her unrebutted assertions that she suffered pain as a result of this misconduct by her prison guards. Cf. Freitas v. Ault, 109 F.3d 1335, 1337 (8th Cir.1997) (factual dispute concerning existence of pain resolved in Government’s favor). I also note that her allegations covered an extended period of time in the brig, and she particularly averred this misconduct placed her in a constant state of “humiliation,” “discomfort,” “fear,” and “emotional” pain. In my view, she has alleged and proven legally cognizable pain, ie., pain beyond “routine discomfort [which] is ‘part of the penalty that criminal offenders pay for their offenses against society.’ ” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Nothing said by Justice Blackman in his separate opinion in Hudson justifies dismissing this claim at this point in time.
INTENT TO PUNISH
I must also disagree with the majority’s rejection of appellant’s post-trial punishment claim because it “find[s] that the prison guards and officials did not have the requisite culpable state of mind.” 53 MJ at 396-97. In particular, it asserts “[i]n-the instant *399case, appellant did not tell the guards, much less their supervisors, that she was being offended and harassed by other inmates.” Id. at 396. It is on this basis that the majority concludes she has not shown that “the prison guards and officials [were] consciously aware of the risk or danger to the inmate and cho[]se to ignore it. . . .” Id. at 396; see Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970,128 L.Ed.2d 811 (1994).
Appellant’s complaint in this case was that she was sexually harassed by her prison guards. Moreover, the commanding officer of the brig found that these complaints were corroborated and acknowledged her sexual harassment at his facility. To factually find that these prison guards were not “deliberately indifferent” in these circumstances not only exceeds the powers of this Court, but it is counterintuitive. Article 67, UCMJ.
This is an unusual case where appellant’s complaint of sexual harassment by prison guards was acknowledged by prison authorities and was not factually disputed by the Government. I am unwilling to reject a sentence reduction argument based on this acknowledged misconduct for the reasons touted by the majority. In addition, appellant has served her confinement. Accordingly, I would order a DuBay hearing which would permit the Government opportunity to factually dispute appellant’s unlawful punishment claim and, if it does not, permit the military judge or Court of Criminal Appeals to fashion appropriate sentence relief with respect to the remainder of her sentence.
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