          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                           Captain BENJAMIN R. LOVERIDGE
                                  United States Air Force

                                        ACM 37872 (recon)

                                           05 August 2014


         Sentence adjudged 10 December 2010 by GCM convened at the United
         States Air Force Academy, Colorado. Military Judge: Scott E. Harding, Jr.

         Approved Sentence:          Dismissal, confinement for 3 months, and a
         reprimand.

         Appellate Counsel for the Appellant:        Major Michael S. Kerr;
         Major Zaven T. Saroyan; Major Daniel E. Schoeni; and Dwight H. Sullivan,
         Esquire.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Daniel J. Breen; Major Erika L. Sleger; and Gerald R. Bruce,
         Esquire.

                                                 Before

                             ALLRED, MITCHELL, and WEBER
                                 Appellate Military Judges

                                  OPINION OF THE COURT
                                 UPON RECONSIDERATION

                   This opinion is subject to editorial correction before final release.



MITCHELL, Senior Judge:

      Pursuant to his pleas, the appellant was convicted, by a general court-martial
composed of a military judge sitting alone, of willful disobedience of a superior
commissioned officer’s order not to have contact with Staff Sergeant (SSgt) JR; conduct
unbecoming an officer for engaging in an unprofessional relationship with
SSgt JR while he was her primary care manager; and adultery with SSgt JR, in violation
of Articles 90, 133, and 134, UCMJ, 10 U.S.C. §§ 890, 933, 934. Contrary to his pleas,
the appellant was convicted of negligent dereliction of duty for e-mailing sensitive
medical notes to SSgt JR’s ex-husband without her permission; false official statement;
assault consummated by a battery for touching SSgt CH on the face and kissing her on
the lips; assault consummated by a battery for touching Airman First Class (A1C) TB on
her uniform collar and hair; and conduct unbecoming an officer for attempting to
establish an unprofessional relationship with SSgt CH,1 attempting to establish an
unprofessional relationship with A1C TB, making inappropriate comments and gestures
to SSgt LP, and for tickling the waist of SSgt MP, in violation of Articles 92, 107, 128,
and 133, UCMJ, 10 U.S.C. §§ 892, 907, 928, 933.

      The adjudged and approved sentence consisted of a dismissal, confinement for
3 months, and a reprimand.

                                             Procedural History

         On 25 June 2013, the Secretary of Defense, “[p]ursuant to [his] authority under
title 5, United States Code, section 3101 et seq.,” issued a memorandum that “appoint[ed]
Mr. Laurence M. Soybel, a civilian employee of the Department of the Air Force, to
serve as appellate military judge on the Air Force Court of Criminal Appeals.”
Memorandum from Sec’y of Def. Chuck Hagel for Sec’y of the Air Force Eric Fanning
(25 June 2013).

        When the appellant’s case was initially before us, the appellant asserted two
issues: (1) that the evidence is factually and legally insufficient to support the finding of
guilty to the lesser included offense of negligent dereliction of duty for releasing
SSgt JR’s medical records to her ex-husband without her permission, and (2) that
Specification 1 of Charge VII, which alleges adultery in violation of Article 134, UCMJ,
fails to state an offense because it did not include the terminal element of that offense.

       On 1 August 2013, we issued a decision affirming the approved findings and
sentence. United States v. Loveridge, ACM 37872 (A.F. Ct. Crim. App. 1 August 2013)
(unpub. op.). Pursuant to his appointment by the Secretary of Defense, Mr. Soybel was a
member of the panel. The appellant petitioned our superior court for review of his case
and filed a motion to vacate with this court. On 31 October 2013, our superior court
dismissed that petition for review without prejudice. United States v. Loveridge,
73 M.J. 91 (C.A.A.F. 2013) (mem.). On 15 April 2014, our superior court issued its
decision in United States v. Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014), holding that the
Secretary of Defense did not have the legislative authority to appoint civilian employees

1
  The appellant entered a plea of guilty to this Specification by exceptions, but after a litigated case the military
judge found the appellant guilty as charged.


                                                         2                                      ACM 37872 (recon)
as appellate military judges and that his appointment of Mr. Soybel to this Court was
“invalid and of no effect.”

        In light of Janssen, we granted reconsideration of the appellant’s case on
29 April 2014 and permitted the appellant to file a supplemental assignment of errors.
The appellant submitted a supplemental assignment of errors, asserting three new issues 2:
(1) the Government failed to prove a specific military duty to not release military medical
records; (2) the appellant’s due process right to speedy appellate processing was violated;
and (3) he is entitled to sentence relief for non-prejudicial post-trial delay.

                                                   Background

      The appellant was a married 33-year-old captain (Capt) with more than three years
of service as a medical doctor stationed at the United States Air Force Academy
(USAFA). After completing his funded medical training through the Uniform Services
University of the Health Sciences, he was assigned to the 10th Medical Operations
Squadron at USAFA. He was well regarded, and patients praised his compassion and
bedside manner.

        SSgt JR was a medical technician at USAFA and had been in the Air Force for 15
years. She first met the appellant in July 2009 when he was assigned as her Primary Care
Manager (PCM). The appellant’s medical treatment of SSgt JR later included prescribing
medication for treatment of her anxiety, panic attacks, and depression due to her recent
divorce and physical separation from her children who lived with her ex-husband. Over
the course of several months, the appellant engaged in an unprofessional relationship
with SSgt JR, including socializing after duty hours, a date at the zoo, sexual contact, and
adultery. The appellant continued as her PCM while they were engaged in this
unprofessional affair. SSgt JR also worked with the appellant when she was reassigned
to the Family Practice Clinic.

       In early February 2010, SSgt JR became distraught and was voluntarily admitted
by the appellant for inpatient resident treatment at an off-base facility. SSgt JR
authorized the appellant to provide her contact information to her ex-husband, Capt RD,
so that Capt RD could reach her if he needed to communicate with her about their
children. The appellant provided Capt RD with not only the contact information but also
a copy of the appellant’s most recent clinic note regarding SSgt JR. After receiving this
e-mailed copy of his ex-wife’s medical records, Capt RD had concerns about his
interactions with the appellant and asked his ex-wife about the appellant’s odd behavior.

2
 The appellant also raised the issue of the legal and factual sufficiency of his conviction for negligent dereliction of
duty for failing to refrain from e-mailing sensitive medical notes to the ex-husband of Staff Sergeant (SSgt) JR. The
appellant now characterizes it as two separate issues: first, the failure of the Government to prove the release was
not with the permission of SSgt JR, and second, the Government failing to disprove the affirmative defense of
mistake of fact as to permission. We address both issues as one related assignment of error.


                                                           3                                       ACM 37872 (recon)
SSgt JR informed Capt RD that she and the appellant were “seeing each other.” Capt RD
informed the appellant’s chain of command, and the squadron commander ordered the
appellant not to have any contact with SSgt JR. However, the appellant chose to violate
this order on at least 15 occasions. The appellant later made false official statements to
an investigating officer, stating he had only a professional relationship with SSgt JR
because she was a medical technician who worked with him, was the non-commissioned
officer in charge of the Family Practice Clinic, and was his patient.

       The appellant’s misconduct was not limited to interactions with SSgt JR. He also
attempted to establish an unprofessional relationship with SSgt CH while she was his
patient, by kissing her on the mouth during a medical appointment, asking her out to
dinner, and inviting her over to his personal residence after the appointment. The
appellant later made a false official statement to an investigating officer by denying he
kissed her.

       The appellant also attempted to establish an unprofessional relationship with
A1C TB, a medical technician. He invited her to his personal residence “if [she] wanted
to be daring,” played with her hair, and reached into her shirt on the pretext of fixing her
uniform. The appellant also invited her to dinner and, through text messages, believed he
was arranging to meet her for an afternoon assignation. The appellant also assaulted
another medical technician he worked with by tickling her waist.

       After being removed from patient care and from the Medical Group, the appellant
was detailed to work at the Plans and Programs office. While there, he made
inappropriate comments to a female staff sergeant by mimicking a provocative strip-tease
song as she removed her outer fleece jacket. He convinced her to walk on his back to
help with his “back problems.” Although she was initially reluctant to walk on his back,
the appellant was persistent and convinced her to do so, in part by reassuring her, “Trust
me; I am a doctor.”

                                      Military Duty

       A military duty may be imposed by a “standard operating procedure[] or custom
of the service.” Manual for Courts-Martial, United States, Part IV, ¶ 16.c.(3)(a)
(2008 ed.); see also United States v. Tanksley, 36 M.J. 428, 430 (C.M.A. 1993).
Furthermore, to the extent military duties are not clearly assigned, “common sense and
military custom help fill in the gaps.” United States v. Shelly, 19 M.J. 325, 328 (C.M.A.
1985). Evidence must be presented at trial to prove the existence of a duty in order to
satisfy the first element of an Article 92(3), UCMJ, 10 U.S.C. § 892(3) offense.
Tanksley, 36 M.J. at 430. The appellant’s case is distinguishable from United States v.
Hayes, 71 M.J. 112 (C.A.A.F. 2012), where our superior court held a conviction for
dereliction of duty for underage consumption of alcohol was not supported by the
evidence in the record when the only evidence of a duty was state law. In Hayes, there


                                             4                             ACM 37872 (recon)
was no evidence in that record that the appellant was bound by military duty to obey
Nevada’s alcohol law. In this record of trial, we find sufficient evidence to establish that
the appellant had a military duty to refrain from e-mailing sensitive medical notes to a
third party without the permission of the patient.

       The evidence in the record established the appellant was a captain who was
assigned as a family practice physician. Colonel TH, a dentist who served as an
investigating officer and interviewed the appellant, testified that health-care documents
are required to be protected and can only be shared with other personnel if the patient
permits the release. When asked if the requirement to obtain a patient’s waiver of
confidentiality is contained in a regulation, he responded that it was and the viewing of
the documents by someone else must be approved. Lieutenant Colonel (Lt Col) JJ, a
pharmacist, testified that there is absolutely an obligation to safeguard medical records.
Lt Col JJ explained that protocols codified in the Health Insurance Portability and
Accountability Act (HIPAA), 42 U.S.C. § 201 et seq., control how and when medical
information can be shared with third parties. The record of medical care, which contains
medical notes completed by a treating physician, including the appellant’s own notes,
includes a notice that the records are protected from unauthorized disclosure: “This
information is protected by the Privacy Act of 1974 (PL-93-579). Unauthorized Access
to this information is a violation of federal law. Violators will be prosecuted.” The
e-mail the appellant sent, which contained the medical information he was convicted of
unlawfully disclosing, also included this disclosure after his signature block:

         This document may contain information covered under the Privacy Act,
         5 USC [sic] 552(a) and/or the Health Insurance Portability and
         Accountability Act (PL 104-191) and its various implementing regulations
         and must be protected in accordance with these provisions. Healthcare
         information is personal and sensitive and must be treated accordingly. If
         this correspondence contains healthcare information it is being provided to
         you after appropriate authorization from the patient or under circumstances
         that don’t require patient authorization. You, the recipient, are obligated to
         maintain it in a safe, secure and confidential manner. Redisclosure without
         additional patient consent or as permitted by law is prohibited.
         Unauthorized redisclosure or failure to maintain confidentiality subjects
         you to application of appropriate sanction.3



3
   Air Force Instruction (AFI) 41-210, Tricare Operations and Patient Administration Functions, ¶ 6.16.3
(6 June 2012), requires a statement similar to the appellant’s warning statement be included in all e-mails containing
personally identifiable information, as well as confirming all recipients are authorized to receive the information.
The 22 March 2006 version of AFI 41-210 was in effect at the time of the appellant’s e-mail transmission and was
referenced by the Article 32, UCMJ, 10 U.S.C. § 832, investigating officer. However, the Government inexplicably
did not offer this AFI into evidence; therefore, we do not consider it in determining either legal or factual
sufficiency.


                                                          5                                      ACM 37872 (recon)
       We find the evidence submitted at trial establishes the appellant who performed
his military duty as a staff physician at the family practice clinic had a corresponding
military duty to protect the confidentiality of the medical records of his patients. The
evidence is legally and factually sufficient to establish this duty was a military duty.

                               Factual and Legal Sufficiency

        We review issues of factual and legal sufficiency de novo. Article 66(c), UCMJ,
10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for factual sufficiency is “whether, after weighing the evidence in the record of trial
and making allowances for not having personally observed the witnesses, [we are]
convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner,
25 M.J. 324, 325 (C.M.A. 1987). In conducting this unique appellate role, we take “a
fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a
presumption of guilt” to “make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399.

       “The test for legal sufficiency of the evidence is whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” United States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002) (citations and internal quotation marks omitted). “[I]n
resolving questions of legal sufficiency, we are bound to draw every reasonable inference
from the evidence of record in favor of the prosecution.” United States v. Barner,
56 M.J. 131, 134 (C.A.A.F. 2001).

       The appellant was originally charged with willful dereliction of duty for failing “to
refrain from E-mailing sensitive medical notes to the former husband of [SSgt JR]
without the permission of [SSgt JR].” The military judge, as the finder of fact, found the
appellant not guilty of willful dereliction of duty, but guilty of the lesser included offense
of negligent dereliction of duty.

       When SSgt JR told the appellant she wanted him to notify Capt RD (her former
husband) of her hospital admission and to give him her contact information, the appellant
emailed Capt RD an attachment of his most recent clinic notes. The clinic notes included
all current prescribed medications and the appellant’s summary of SSgt JR’s mental
health condition that resulted in her referral to inpatient treatment. The e-mail included
the disclaimer: “Healthcare information is personal and sensitive and must be treated
accordingly.”

       In response to trial counsel’s questions at trial, SSgt JR testified:




                                               6                               ACM 37872 (recon)
      Q. Did you ever have a particular conversation with [the appellant]
      concerning written medical records while you were inpatient?

      A. No, sir. I did not.

      Q. Did you ever give permission to [the appellant] to release your medical
      records to your husband?

      A. No, sir. I did not.

      ....

      Q. Did you give permission to [the appellant] to release any medical
      information about you other than where you were currently staying?

      A. No, sir.

       As he did at trial, the appellant argues the evidence is insufficient to find him
guilty of dereliction of duty because it reveals SSgt JR authorized the release of her
location for inpatient treatment and all information regarding her medical treatment. In
the alternative, he argues that, even if she did not authorize the release, he honestly
believed she had, and this belief was reasonable under the circumstances. We disagree.

        Having weighed the evidence in the record of trial, with allowances for not having
personally observed the witnesses, including SSgt JR, we are personally convinced
beyond a reasonable doubt of the appellant’s guilt of the lesser included offense of
negligent dereliction of duty. Similarly, we find a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.

                         Article 134, UCMJ, Offense of Adultery

       The appellant asserts that Specification 1 of Charge VII fails to state an offense
because it fails to allege any of the three clauses of the terminal element of Article 134,
UCMJ. Whether a specification states an offense is a question of law we review de novo.
United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). In United States v. Fosler,
70 M.J. 225, 233 (C.A.A.F. 2011), a contested case, our superior court held that when an
Article 134, UCMJ, specification fails to allege the terminal element, it fails to state an
offense. Our superior court has also held that, in a guilty plea case, where the military
judge describes clauses 1 and 2 of Article 134, UCMJ, during the plea inquiry, and where
“the record conspicuously reflects that the accused clearly understood the nature of the
prohibited conduct as a violation of clause 1 or clause 2” of Article 134, UCMJ, there is
no prejudice to a substantial right. United States v. Ballan, 71 M.J. 28, 35 (C.A.A.F.
2012) (quoting United States v. Medina, 66 M.J. 21, 28 (C.A.A.F. 2008)) (internal


                                             7                             ACM 37872 (recon)
alterations and quotation marks omitted). See also United States v. Nealy, 71 M.J. 73
(C.A.A.F. 2012).

       Here, the appellant did not challenge the sufficiency of the specification at trial
and pled guilty to the charge and specification of adultery. The military judge conducted
a thorough plea inquiry and described and defined both clauses 1 and 2 of the terminal
elements of Article 134, UCMJ. He asked the appellant whether he believed his conduct
was prejudicial to good order and discipline, service discrediting, or both. The appellant
acknowledged understanding of all the elements and explained to the military judge why
he believed his conduct was both prejudicial to good order and discipline and service
discrediting.    Thus, “while the failure to allege the terminal elements in the
specification[s] was error, under the facts of this case the error was insufficient to show
prejudice to a substantial right.” See United States v. Watson, 71 M.J. 54, 59 (C.A.A.F.
2012); Ballan, 71 M.J. at 36; Nealy, 71 M.J. at 77–78.

                            Appellate Review Time Standards

        We review de novo “[w]hether an appellant has been denied [his] due process
right to a speedy post-trial review . . . and whether [any] constitutional error is harmless
beyond a reasonable doubt.” United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006).
A presumption of unreasonable delay arises when appellate review is not completed and
a decision is not rendered within 18 months of the case being docketed before this Court.
United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). The Moreno standards
continue to apply as a case remains in the appellate process. United States v. Mackie,
72 M.J. 135, 135–36 (C.A.A.F. 2013). The Moreno standard is not violated when each
period of time used for the resolution of legal issues between this Court and our superior
court is within the 18-month standard. Id. at 136; United States v. Roach, 69 M.J. 17
(C.A.A.F. 2010). However, when a case is not completed within 18 months, such a delay
is presumptively unreasonable and triggers an analysis of the four factors elucidated in
Barker v. Wingo, 407 U.S. 514 (1972), and Moreno. See United States v. Arriaga,
70 M.J. 51, 55 (C.A.A.F. 2011). Those factors are “(1) the length of the delay; (2) the
reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and
(4) prejudice to the appellant.” United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F.
2005); see also Barker, 407 U.S. at 530.

        This case was docketed for appeal on 5 April 2011. After considering briefs from
counsel, we rendered our initial decision on 1 August 2013. The overall delay of more
than 540 days between the time of docketing and the initial review by this Court is
facially unreasonable. United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). As
stated earlier in this opinion, our superior court recently decided that one of the judges
who participated in that decision was not properly appointed, and subsequently the
appellant’s case remains in the appellate process. Accordingly, we have considered the
appellant’s court-martial before a properly constituted panel and issue this decision. The


                                             8                             ACM 37872 (recon)
time between our superior court’s action and this decision did not exceed 18 months;
therefore, the Moreno presumption of unreasonable delay is not triggered for this period
of time.

       We analyze the Barker factors for the delay leading up to our decision. The first
factor weighs in favor of the appellant; the length of the delay between docketing and our
decision is presumptively unreasonable. See Moreno, 63 M.J. at 142.

        The second factor weighs in favor of the appellant. The appellant filed three
enlargements before filing his assignment of errors on 30 December 2011. The case was
joined in late February 2012. The longest delay in this case was from the time the case
was docketed until we issued our initial decision. Although this Court was undergoing
significant personnel changes at the time,4 we are mindful of our superior court’s
emphasis that the established benchmarks do not create a free period, and “personnel and
administrative issues . . . are not legitimate reasons justifying otherwise unreasonable
post-trial delay.” Arriaga, 70 M.J. at 57. However, our superior court also applies “a
more flexible review of [the appellate deliberative process], recognizing that it involves
the exercise of the Court of Criminal Appeals’ judicial decision-making authority.”
Moreno, 63 M.J. at 137.

        Third, although the Government carries the burden of primary responsibility for
speedy post-trial processing, United States v. Bodkins, 60 M.J. 322, 323–24 (C.A.A.F.
2004), the appellant did not assert his right to speedy post-trial processing before this
court until after our initial decision. However, after we addressed the presumptively
unreasonable delay in our first opinion, the appellant raised this as an issue in his petition
for grant of review to our superior court on 23 October 2013. Finally, on the fourth
factor, the appellant fails to demonstrate any prejudice in this case. The appellant was
released from confinement prior to his first request for an enlargement of time. “An
appellant must demonstrate a ‘particularized anxiety or concern that is distinguishable
from the normal anxiety experienced by prisoners awaiting an appellate decision.’”
Arriaga, 70 M.J. at 58 (quoting Moreno, 63 M.J. at 140). Here, the appellant has not
done so.

        When there is no showing of prejudice under the fourth factor, “we will find a due
process violation only when, in balancing the other three factors, the delay is so egregious
that tolerating it would 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).


4
  An en banc decision by this Court released on 9 August 2013 referenced, for example, the fact that five appellate
judges did not participate in that decision due to their recent assignments to the Court relative to the deliberative
process and oral argument in that case. See United States v. Witt, 72 M.J. 727, 776 n.17 (A.F. Ct. Crim. App. 2013),
vacated upon reconsideration, __ M.J. __ (A.F. Ct. Crim. App. 2014).


                                                         9                                      ACM 37872 (recon)
       Having considered the totality of the circumstances and the entire record, when we
balance the other three factors, we find the post-trial delay in this case not to be so
egregious as to adversely affect the public’s perception of the fairness and integrity of the
military justice system. We are convinced the error is harmless beyond a reasonable
doubt.

        While we find the post-trial delay was harmless, that does not end our analysis.
Article 66(c), UCMJ, empowers appellate courts to grant sentence relief for excessive
post-trial delay without the showing of actual prejudice required by Article 59(a), UCMJ,
10 U.S.C. § 859(a). United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); see also
United States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006). In United States v. Brown,
62 M.J. 602, 606–07 (N.M. Ct. Crim. App. 2005), our Navy and Marine Court colleagues
identified a “non-exhaustive” list of factors to consider in evaluating whether
Article 66(c), UCMJ, relief should be granted for post-trial delay. Among the
non-prejudicial factors are the length and reasons for the delay; the length and complexity
of the record; the offenses involved; and the evidence of bad faith or gross negligence in
the post-trial process. Id. at 607. We find there was no bad faith or gross negligence in
the post-trial processing in any stage of the appellate review of this matter. The reason
for the delay between 1 August 2013 and our opinion today was to allow this Court and
our superior court to fully consider a constitutional issue of first impression—i.e.,
whether the Secretary of Defense has the authority under the Appointments Clause 5 to
appoint civilian employees to the service courts of criminal appeals. We conclude that
sentence relief under Article 66, UCMJ, is not warranted.

                                                   Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred.6 Articles 59(a)
and 66(c), UCMJ; United States v. Reed, 54 M.J. 73, 41 (C.A.A.F. 2000).




5
  U.S. CONST. art II § 2, cl 2.
6
   The staff judge advocate’s recommendation (SJAR) did not address the military judge’s clemency
recommendation to waive forfeitures. However, this clemency recommendation was provided earlier to the
convening authority as part of the staff judge advocate’s response to trial defense counsel’s request for deferment
and waiver of forfeitures. The convening authority waived but did not defer the forfeitures. This issue was not
raised by either trial or appellate defense counsel. Furthermore, since the staff judge advocate had earlier informed
the convening authority of the clemency recommendation and the convening authority’s action matched that
recommendation, there is no prejudice to the appellant. See United States v. Capers, 62 M.J. 268 (C.A.A.F. 2005).


                                                         10                                     ACM 37872 (recon)
Accordingly, the findings and the sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           11     ACM 37872 (recon)
