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

                            No. ACM S32565
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                        Wynton N. WARREN
            Staff Sergeant (E-5), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 28 February 2020
                        ________________________

Military Judge: Charles G. Warren.
Approved sentence: Bad-conduct discharge, confinement for 90 days, re-
duction to E-1, forfeiture of $1,092 pay per month for 4 months, and a
reprimand. Sentence adjudged 11 December 2018 by SpCM convened at
Beale Air Force Base, California.
For Appellant: Major Kevin R. Cayton, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Thomas
Franzinger, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, KEY, and RAMÍREZ, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Judge KEY joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 30.4.
                         ________________________

RAMÍREZ, Judge:
    A special court-martial composed of a military judge found Appellant
guilty, in accordance with his pleas and pursuant to a pretrial agreement
                    United States v. Warren, No. ACM S32565


(PTA), 1 of one specification of attempted wrongful use of lysergic acid diethyl-
amide, one specification of wrongful use of marijuana, and one specification of
wrongful use of cocaine, in violation of Articles 80 and 112a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 880, 912a. 2 He was also found guilty, in
accordance with his pleas and the PTA, of one specification of failing to obey a
lawful general regulation by wrongfully possessing an intoxicating substance
with the intent to use in a manner that would alter mood or function, and one
specification of failing to obey a lawful general regulation by wrongfully using
an intoxicating substance in a manner that would alter mood or function, both
in violation of Article 92, UCMJ, 10 U.S.C. § 892. The military judge sentenced
Appellant to a bad-conduct discharge, confinement for 100 days, reduction to
the grade of E-1, forfeiture of $1,092.00 pay per month for four months, and a
reprimand. The convening authority approved only 90 days of confinement in
accordance with the PTA and approved the remainder of the adjudged sen-
tence.
     Appellant raises one issue on appeal: whether Appellant’s conditions in
civilian and military confinement along with his continued coding as a prisoner
after he was released from confinement constituted cruel and unusual punish-
ment. Finding no error, we affirm.
                                   I. BACKGROUND
     After Appellant was sentenced to confinement at his court-martial on 11
December 2018, he was transferred to a civilian confinement facility. On the
eighth day, 18 December 2018, he was transferred to a military confinement
facility at Vandenberg Air Force Base (AFB), California, where he remained in
military confinement until he was released on 18 February 2019 and returned
to his last base of active duty assignment awaiting discharge. Appellant’s



1 During the Care inquiry, and based on Appellant’s sworn testimony, the military
judge did not accept Appellant’s plea of guilty to wrongfully using lysergic acid diethyl-
amide, which had originally been part of the agreement between Appellant and the
convening authority. The military judge did, however, find Appellant guilty of the
lesser included offense of attempted use. After a recess for trial counsel to consult with
the staff judge advocate and the convening authority, trial counsel affirmed, on the
record, that the convening authority would continue to be bound by the terms of the
agreement despite the military judge’s finding. United States v. Care, 18 C.M.A. 535
(1969).
2References in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are to the Manual for Courts-Martial, United States (2016 ed.).




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                     United States v. Warren, No. ACM S32565


claims will be addressed by each confinement facility as well as his post-con-
finement conditions at Beale AFB.
A. Civilian Confinement
    With regard to his eight days at the civilian confinement facility, Appel-
lant’s allegations are twofold—that he was held in solitary confinement for no
reason and that he was not provided medical attention. He claims that both of
these conditions amount to cruel and unusual punishment in violation of the
Eighth Amendment. 3 Appellant alleges that while in the civilian confinement
facility, “he was placed in the solitary confinement unit and only allowed 10
minutes out of his cell a day.” Appellant believes that while the “possible rea-
son is so that the command would be complying with Article 12, UCMJ,” 10
U.S.C. § 812, 4 he argues that there are other ways of complying with Article
12, such as transporting Appellant to a military facility sooner.
    What Appellant refers to as a lack of medical attention is a claim that he
was not provided contact lens solution in order for him to wear his contact
lenses while in confinement. Specifically, Appellant claims that he requested
contact lens solution so that he could clean his contact lenses, but this request
was denied repeatedly. While Appellant owned a pair of eyeglasses, he further
claims, “[T]he confinement facility had possession of my glasses but refused to
give them to me the entire time I was” there. He does admit, however, that he
was given distilled water to clean his contact lenses but alleges that “[b]y the
end of his stay in civilian confinement, [his] soft contact lenses had become
hardened, causing him immense pain.”
B. Military Confinement
    Appellant alleges that when he was transferred to the military confinement
facility at Vandenberg AFB, he was again not provided medical attention dur-
ing his 62 days of confinement. This time he claims that prior to confinement
at the civilian facility, he was prescribed Ambien and a Continuous Positive


3   U.S. CONST. amend. VIII.
4 At the time of Appellant’s civilian confinement, Article 12, UCMJ, provided that “[n]o
member of the armed forces may be placed in confinement in immediate association
with enemy prisoners or other foreign nationals not members of the armed forces.” 10
U.S.C. § 812. The United States Court of Appeals for the Armed Forces (CAAF) has
held that it applies to military members confined in a state or federal facility within
the continental limits of the United States. United States v. McPherson, 73 M.J. 393,
394 (C.A.A.F. 2014). Article 12 is not violated when civilian jail officials do not have a
method of identifying foreign nationals and implement the segregation of military
members. United States v. Wilson, 73 M.J. 529, 535 (A.F. Ct. Crim. App. 2014). Effec-
tive 1 January 2019, Congress changed Article 12 but these changes do not impact
Appellant as he was transferred from civilian confinement before their effective date.


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                  United States v. Warren, No. ACM S32565


Airway Pressure (CPAP) machine, but when he was transferred to Vandenberg
AFB, he was not given access to either.
    The day after arriving at the Vandenberg AFB confinement facility, Appel-
lant received his initial physical examination and a discussion occurred be-
tween confinement staff and medical personnel as to whether his Ambien pre-
scription and CPAP machine were medically needed. Ultimately, the 30th
Medical Group (30 MDG) at Vandenberg AFB decided that neither were med-
ically required. According to Appellant, he “was told only a nurse could provide
[him] the medication and the machine and no nurses were available.”
    Appellant further claims that he requested to speak to the confinement of-
ficer in charge (OIC), but that the OIC never agreed to speak to him. He also
claims, however, that he was told that speaking to the OIC would not resolve
the issue. According to Appellant, he would have slept “properly” had he just
had access to either Ambien or the CPAP machine because he claims that he
was only sleeping three hours at a time.
    On 27 December 2018, Appellant submitted a DD Form 510, Prisoner Re-
quest, to the confinement staff requesting “to have [his] sleep concerns ad-
dressed.” The DD Form 510 is a prisoner request form used to initiate an in-
terview or communicate with correctional system staff. Once processed, staff
members approve or disapprove the request, adding pertinent remarks rele-
vant to the interview. On 28 December 2018, staff members took action on the
DD Form 510, in which Appellant’s request to address his sleep concerns was
approved, and he was reminded of weekly feedback and interview sessions with
the noncommissioned officer in charge (NCOIC) of confinement. However, it
appears that the decision to allow Appellant his Ambien and CPAP was reaf-
firmed as not medically required.
    On 12 January 2019, Appellant’s trial defense counsel raised Appellant’s
complaints in his clemency submission, which were mentioned in the Adden-
dum to the Staff Judge Advocate Recommendation, where the recommendation
was to deny further relief. On 18 February 2019, Appellant was released from
military confinement and transferred back Beale AFB, California.
C. Post-Confinement
    Appellant further claims that after he was released from confinement and
returned to Beale AFB, there was an administrative coding error in his per-
sonnel record in which he was still listed as a prisoner and as such, could not
utilize the services at the Beale AFB medical clinic. Here Appellant claims that




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                    United States v. Warren, No. ACM S32565


“[t]his treatment is completely contrary to the sentence imposed on [him] dur-
ing the court-martial and violates [his] Fifth Amendment 5 rights not to be de-
prived of life, liberty or property without due process of law.” (Footnote added).
Appellant was released from confinement on 18 February 2019, and was not
placed on appellate leave until 2 May 2019.
     For purposes of analysis of Appellant’s claims, this court granted Appel-
lant’s motion to attach his declaration which buttresses his claims. The decla-
ration addresses Appellant’s time in civilian confinement, his time in military
confinement, and his post-confinement claims. Additionally, Government ap-
pellate counsel moved to have two declarations, the DD Form 510, and a mem-
orandum for the record attached to the record of trial for this court’s consider-
ation addressing Appellant’s claims, and the court granted the motion. The
declaration of Lieutenant (Lt) NB, the Jail Lieutenant and second in command
of the Corrections Section at the civilian confinement facility, addresses Appel-
lant’s claims of solitary confinement and the contact lens issue. The declaration
of Technical Sergeant (TSgt) DS, the NCOIC of Confinement at Vandenberg
AFB, and the memorandum for the record by SSgt RL, Assistant NCOIC, ad-
dress Appellant’s medication claim and the CPAP machine.
    Lieutenant NB rebuts Appellant’s solitary confinement claim. Lt NB ex-
plains that Appellant was not in solitary confinement or administrative segre-
gation (“admin seg”) during his confinement. He “was not even in [their] Single
Cells housing unit.” Instead, Lt NB points out that simply because Appellant
did not have a cell mate does not mean he was in “admin seg.” Where Appellant
was housed, he was allowed “out from his cell into the open dayroom where
there was a shower, table/chairs and a television.” While Appellant was al-
lowed to go to the recreation yard, “the Recreation Yard was wet and in an
unsafe condition for inmates” for several of the days Appellant was confined
there. Lt NB also explains that while they cannot confirm whether Appellant
had contact lenses or eyeglasses when he arrived to the confinement facility
because “[t]hey were not listed on the confinement log,” they do not have any
records of Appellant asking for his eyeglasses. More importantly, however, is
that according to Lt NB, if Appellant had asked for his eyeglasses, they would
have given them to him.
     According to TSgt DS, the protocol for inmates when requesting medical
refills or medical appointments is to fill out a DD Form 510. He indicates that
the Appellant made a request for information about his sleep medication and
CPAP machine, but during the confinement facility’s weekly meetings, the de-
cision was made that “[Appellant] would not be receiving Ambien medication
or his machine because 30 MDG decided neither were needed.” SSgt RL was

5   U.S. CONST. amend. V.


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                  United States v. Warren, No. ACM S32565


also advised that Appellant did not need the Ambien or CPAP machine. How-
ever, according to TSgt DS, “[Appellant] was also informed, if he needed help
with his sleep issues, he would need to submit a DD Form 510 to make a med-
ical appointment and talk to the provider.” Appellant never submitted such a
request.
    Appellant alleges violations of the Fifth and Eighth Amendments, as well
as Article 55, UCMJ, 10 U.S.C. § 855. In the alternative, however, he relies on
this court’s authority under Article 66, UCMJ, 10 U.S.C. § 866 to grant him
the relief he requests, which is to set aside the bad-conduct discharge.
                                II. DISCUSSION
   A. Law
    Claims of Article 55, UCMJ, or Eighth Amendment violations are reviewed
de novo. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007) (citing United
States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)). Both the Eighth Amendment
and Article 55, UCMJ, prohibit cruel and unusual punishment. In general,
when a claim is raised pursuant to Article 55, UCMJ, we apply the Supreme
Court’s interpretation of the Eighth Amendment except where it is apparent
that legislative intent provides greater protections under Article 55. See
United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000).
     “[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 in-
fliction of pain.” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (in-
ternal quotation marks and citations omitted). “The Constitution ‘does not
mandate comfortable prisons,’ but neither does it permit inhumane ones.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (1981)).
    A violation of the Eighth Amendment is shown by demonstrating:
       (1) an objectively, sufficiently serious act or omission resulting
       in the denial of necessities; (2) a culpable state of mind on the
       part of prison officials amounting to deliberate indifference to
       [an appellant]’s health and safety; and (3) that [an appellant]
       “has exhausted the prisoner-grievance system . . . and that he
       has petitioned for relief under Article 138, UCMJ, 10 U.S.C. §
       938 . . . .”
Lovett, 63 M.J. at 215 (alteration in original) (footnotes omitted) (quot-
ing United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). However, what
Appellant refers to as “solitary confinement” is not a per se Eighth Amendment
violation. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citing Sostre


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                  United States v. Warren, No. ACM S32565


v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971)). Rather, the totality of the cir-
cumstances of the confinement conditions are considered in determining
whether a sufficiently serious deprivation under the Eighth Amendment has
been shown. Id. at 102.
     The “Fifth Amendment provides that no person shall be deprived of life,
liberty, or property, without due process of law.” United States v. McMurrin,
70 M.J. 15, 18 (C.A.A.F. 2011). This court must first determine whether it has
jurisdiction over Appellant’s claims. United States v. Towns, 52 M.J. 830, 833
(A.F. Ct. Crim. App. 2000), aff’d, 55 M.J. 361 (C.A.A.F. 2001). Jurisdiction is a
question of law we review de novo. United States v. Buford, 77 M.J. 562, 564
(A.F. Ct. Crim. App. 2017) (citation omitted). In Buford, this court explained
that Article 66(c), UCMJ, does not grant us unlimited power to “grant relief for
an administrative matter unrelated to any legal deficiency and unconnected to
the legality or appropriateness of a court-martial sentence.” 77 M.J. at 565.
Instead, the authority to grant relief must be rooted and limited to a legal de-
ficiency that directly impacted a component of the sentence. Id.
   B. Analysis
    1. Civilian and Military Confinement
     As an initial matter, we have considered whether a post-trial evidentiary
hearing is required to resolve any factual disputes between the declaration of
Appellant and the declarations of Lieutenant NB, the Jail Lieutenant at the
civilian confinement facility, and TSgt DS, the NCOIC of Confinement at Van-
denberg AFB. 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). In this case we find
a hearing unnecessary. To the extent the documents are inconsistent, resolving
any factual disputes in Appellant’s favor would not result in relief. See Ginn,
47 M.J. at 248.
     Our analysis of these issues falls on the conjunctive nature of the burden
on Appellant to show his post-trial confinement conditions warrant interven-
tion by this court. Lovett, 63 M.J. at 215. In order to secure relief for cruel or
unusual confinement conditions, Appellant bears the burden to demonstrate
all three prongs of the test articulated in Lovett are met. 63 M.J. at 215. Ap-
pellant has failed to do so here. The third prong of this burden is the exhaustion
of administrative remedies—that is, a “prisoner must seek administrative re-
lief prior to invoking judicial intervention” with respect to concerns about post-
trial confinement conditions. Wise, 64 M.J. at 471 (quoting White, 54 M.J. at
472). “This requirement promotes resolution of grievances at the lowest possi-
ble level and ensures that an adequate record has been developed to aid appel-
late review.” Id. (alterations in original and internal quotation marks omitted)
(quoting Miller, 46 M.J. at 250).


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                  United States v. Warren, No. ACM S32565


     Even if we take Appellant’s assertions in the most favorable light and as-
sume that confinement authorities refused to provide him medical care or that
he was kept in his cell an excessive amount of time to the point of solitary
confinement, Appellant has failed to demonstrate that he used, much less ex-
hausted, the available prisoner grievance system, or that he petitioned for re-
lief under Article 138, UCMJ. A similar result was recently found by this court
in United States v. Woods, No. ACM 39403, CCA LEXIS 309, at *7–8 (A.F. Ct.
Crim. App. 26 Jul. 2019) (unpub. op.) (finding appellant failed to exhaust the
prisoner grievance system and failed to petition for relief under Article 138
when claiming that confinement officials unjustly refused to provide him rea-
sonable medical care by withholding his CPAP machine and ulcer medication).
     In this case, Appellant concedes that he did not attempt to seek adminis-
trative relief pursuant to Article 138 regarding his confinement conditions. Ap-
pellant’s claim that he still put his command on notice in other ways and that
that should be enough is not supported by case law with his facts.
    We recognize that in rare circumstances, appellate courts have excused an
appellant’s failure to satisfy this third prong of the Lovett test. These have been
situations where there are truly unusual or egregious circumstances that pre-
vented the appellant from filing an Article 138 claim. However, we do not find
Appellant’s case presents such circumstances. Appellant has failed to demon-
strate any unusual circumstance that prevented him from seeking relief under
Article 138.
      Furthermore, Appellant has failed to demonstrate he would be entitled to
relief even if he had exhausted his administrative remedies. This court finds
Appellant’s affidavit is factually adequate on its face. However, the “appellate
filings and the record as a whole ‘compellingly demonstrate’ the improbability”
of Appellant’s allegations. United States v. Sales, 56 M.J. 255, 258 (C.A.A.F.
2002) (citing United States v. Ginn, 47 M.J. 236, 348 (C.A.A.F. 1997)). Specifi-
cally, it is apparent from Lt NB’s declaration and supporting documentation
that Appellant was not held in the solitary confinement or segregation unit at
all. Instead, he was held in ordinary cells with access to a day room; he simply
did not have a cell mate. Additionally, the lack of any records of Appellant ask-
ing for his eyeglasses coupled with the assertion that had Appellant asked for
his eyeglasses, confinement officials would have provided them to him, leads
this court to discount Appellant’s assertions and find no “serious act or omis-
sion resulting in the denial of necessities.” See Lovett, 63 M.J. at 215 (citation
omitted).
    2. Article 66(c), UCMJ, Relief
    Appellant asserts, in the alternative, that his confinement conditions and
post-confinement treatment warrant relief pursuant to Article 66(c), UCMJ,


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                  United States v. Warren, No. ACM S32565


and United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.
264 (C.A.A.F. 2016).
     According to Gay, Courts of Criminal Appeals have the authority under
Article 66, UCMJ, to grant sentence appropriateness relief for post-trial con-
finement conditions that do not amount to cruel and unusual punishment, but
where there is nonetheless a legal deficiency in the post-trial confinement con-
ditions. See also United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002) (af-
firming a broad authority of Courts of Criminal Appeals to review and modify
sentences pursuant to Article 66, UCMJ).
     In contrast to the Eighth Amendment and Article 55 claims we analyzed
above, when considering Article 66(c) based claims, we have declined to re-
quire that appellants demonstrate that they have previously exhausted admin-
istrative remedies prior to seeking judicial relief. See United States v. Henry,
76 M.J. 595, 610 (A.F. Ct. Crim. App. 2017). We instead consider the entire
record and typically give “significant weight” to an appellant’s failure to ex-
haust those remedies before requesting judicial intervention. Id.
     This court has considered the non-exhaustive list of factors we consider
when evaluating the appropriateness of Tardif relief. See Gay, 74 M.J. at 744.
On the whole, we find that Appellant’s claims do not merit sentencing relief in
this case.
    As to the civilian confinement, Appellant’s argument is not convincing. We
are not persuaded that he did not have the opportunity to obtain his eyeglasses
or that he was in solitary confinement. Similarly, as to the military confine-
ment, this court finds that Appellant’s complaint that his medication and
CPAP machine were withheld, while true, was accomplished pursuant to the
decision of medical personnel who determined that neither were medically re-
quired.
    The relevant question under Article 66(c), UCMJ, is whether Appellant’s
confinement conditions rendered his sentence inappropriately severe. Appel-
lant’s confinement conditions are recognizably unpleasant, however the fact
that Appellant was told he could submit a subsequent DD Form 510 for his
sleep issues and because he failed to do so suggests that his discomfort was not
as great as he now claims. As such, his claims do not render his sentence inap-
propriately severe. Accordingly, Appellant is not entitled to relief pursuant to
United States v. Gay or Article 66(c).
    3. Post-Confinement Prisoner Status
    Appellant claims that after he was released from confinement, he was still
administratively coded in “prisoner” status and this prevented him from being
able to use military medical and personnel services, thereby depriving him of



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                  United States v. Warren, No. ACM S32565


life, liberty, or property under the Fifth Amendment, in addition to punishing
him in violation of the Eighth Amendment and Article 55, UCMJ.
     As explained above, this court must first determine whether it has juris-
diction over Appellant’s post-confinement issue because Article 66(c), UCMJ,
does not grant us unlimited power to grant relief for an administrative matter
unrelated to any legal deficiency and unconnected to the legality or appropri-
ateness of a court-martial sentence. Appellant must demonstrate an error con-
nected “to the legality or appropriateness of a court-martial sentence,” and not
merely a “collateral administrative matter.” Buford, 77 M.J. at 565.
     Here, there is a distinction between the Appellant’s sentence and an ad-
ministrative coding of his status which does not concern the legality or appro-
priateness of the approved court-martial sentence. Rather, Appellant’s post-
confinement troubles stem from a failure to correctly establish his status upon
his release from confinement. There is simply an insufficient nexus between
this post-confinement error and Appellant’s approved sentence. Therefore, this
court lacks jurisdiction over this issue.
                               III. CONCLUSION
     The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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