UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                MULLIGAN, FEBBO, and WOLFE
                                   Appellate Military Judges

                                UNITED STATES, Appellee
                                            v.
                         Staff Sergeant WILLIAM L. MITCHAM
                              United States Army, Appellant

                                        ARMY 20140969

              Headquarters, Joint Readiness Training Center and Fort Polk
                   Randall L. Fluke, Military Judge (arraignment)
                       Wade N. Faulkner, Military Judge (trial)
                   Colonel Jan E. Aldykiewicz, Staff Judge Advocate

For Appellant: Captain Jennifer K. Beerman, JA; Mr. Sean A. Marvin, Esquire (on
brief); Captain Matthew L. Jalandoni, JA; Mr. Sean A. Marvin, Esquire (on reply
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Cormac M. Smith, JA;
Captain Linda Chavez, JA (on brief).


                                       30 November 2016

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       On appeal from his general court-martial convictions, appellant asked this
court to address three allegations of error. We discuss two, but only find one to be
worthy of relief. 1 Specifically, we set aside appellant’s conviction for indecent

1
 We do not address in depth appellant’s contention that the trial counsel’s comments
during trial and during argument amounted to prosecutorial misconduct. These
comments included the trial counsel’s rebuttal argument where he referred to each
defense argument as trying to pull “rabbits out of a hat” while showing a power
point presentation with a cartoon bunny with blood dripping from a bullet hole in the
bunny’s head as he addressed each defense argument. The comments identified by

                                                                            (continued . . . )
MITCHAM—ARMY 20140969

language as we hold that while appellant’s statement was offensive, it was not
“indecent.” We affirm the lesser-included offense of a general disorder under
Article 134, UCMJ.

       A general court-martial arraigned appellant on six specifications alleging
violations of the UCMJ. Two specifications alleged appellant had stolen and
mistreated a dog belonging to Ms. KC. Two specifications alleged he battered and
strangled Ms. KC. One specification alleged appellant had used indecent language
during unit training. The final specification alleged appellant was disrespectful to
his commander when he was being counseled for his indecent statement. Appellant
pled not guilty to all offenses.

       A panel with enlisted representation acquitted appellant of stealing and
mistreating Ms. KC’s dog. The panel convicted appellant of disrespecting a superior
commissioned officer, assault consummated by battery, aggravated assault with
force likely to produce death or grievous bodily harm, and communicating indecent
language in violation of Articles 89, 128, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 889, 928, 934 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for two
years, and reduction to the grade of E-1.

                                  BACKGROUND

                       A. Indecent Statement and Disrespect

       On 16 October 2013, appellant attended unit training. During one of the
sessions, the presenter displayed a photograph of three individuals and asked “which
of these individuals poses the greatest security threat to our forces?” One of three
individuals was a woman. Appellant responded that he did not trust the woman, and
explained, in a clear reference to women’s menstrual cycles, “I don’t trust anything
that bleeds for seven days and doesn’t die.” 2 On direct-examination at his court-


 (. . . continued)
appellant generally fall into two categories: Those appellant did not object to, and
those the military judge corrected (either sua sponte or after a defense objection).
As to the former, the claims of error were unpreserved, forfeited, and did not amount
to plain error. As to the latter, we find the military judge’s warnings to the trial
counsel adequately addressed the issue in the absence of either a specific objection
or request for a curative instruction by appellant. The issues raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) are without
merit.
2
  The statement appears to be a quote from the movie S OUTHPARK , B IGGER , L ONGER
AND U NCUT (Comedy Central Films 1999).

                                          2
MITCHAM—ARMY 20140969

martial, appellant testified he was bored in the class and was “just trying to get a
rise” and it was said in a “joking way.” He also testified on direct-examination that
“I didn’t see where it was wrong. I mean, understanding making comments [sic] like
that in the real world today and the way the military is, yes, it was wrong. But, you
know . . .” (ellipses in original).

      On cross-examination, appellant twice testified that he “wasn’t trying to be
funny” when he made the comment.

      Lieutenant Colonel (LTC) Cho was appellant’s task force commander and also
attended the training. Hearing appellant’s statement, LTC Cho immediately held a
meeting with the senior leaders in the task force to brief them on the
inappropriateness of the statement and to ensure everyone understood appellant’s
comment was unacceptable. Lieutenant Colonel Cho ordered appellant’s company
commander to counsel appellant on the statement.

       The next day, on 17 October 2013, Captain (CPT) Chase held a formal
counseling session with appellant. The counselling statement included the use of
Dep’t of Army, Form 4856, Developmental Counseling Form [hereinafter DA Form
4856]. Appellant described, on direct-examination, his feelings about the counseling
session as follows:

             I had mixed emotions and feelings from the get go. I
             mean, I was getting ready to be counseled for something
             that I didn’t believe that I had done anything wrong
             because, to me, if I had done wrong, they should have
             come and told me at the moment. . . . So, I figured it was
             some kind of political stuff that somebody wanted to have
             done.

       Appellant refused to sign the counseling form, saying to his commander “Fuck
this shit, I’m not going to sign this.” 3

                         B. Battery and Aggravated Assault

       During the summer of 2013, appellant and Ms. KC were romantically
involved. In July, she moved in with appellant to help him recover from back
surgery. On 13 August 2013, after a long night out, appellant and Ms. KC returned
home in the early morning hours. Ms. KC and appellant both testified, but gave
differing stories as to what happened that morning.


3
 A signature on the form does not indicate agreement. The person being counseled
may indicate they “agree” or “disagree with the information” that formed the bases
of the counseling. See DA Form 4856.

                                          3
MITCHAM—ARMY 20140969

       Ms. KC testified they went to the race track, where they both drank alcohol.
She estimated she had about six beers during a three-hour period. As they were
leaving, they made friends with an older couple, who invited them to their house to
drink and hang out. Over her protestations that she was tired, appellant accepted the
invitation. Once at the house, they sang karaoke and appellant began to drink liquor.
Ms. KC stated appellant “gets a little bit more mouthy when he drinks liquor.” At
one point, when they were separated from appellant, the female host told Ms. KC to
get out of the relationship, warning her: “Baby, get out now.” Ms. KC testified
appellant decided he was ready to go “because he wanted me to make him
breakfast.” She replied she wanted to go to bed, and did not want to cook.
Appellant then told their hosts he was having a problem with his “old lady,” and he
needed to “take care of it.”

        Upon returning home, Ms. KC got into her pajamas and went to bed. She
testified that appellant wanted her to make him breakfast and dragged her out of bed
by her feet toward the kitchen. She then explained the violence escalated.
Appellant slammed her into a wall and eventually began to strangle her with both
hands around her neck. 4 She testified that she continued to fight him and eventually
broke free and ran out the front door. As she ran through the yard, she was tackled
by appellant, who again strangled her. She again escaped, and ran to the neighbor’s
house. She testified that she told the neighbor appellant was trying to kill her. The
neighbor called the police. Ms. KC was taken to the hospital.

      Appellant testified after returning home, Ms. KC changed, but it was she who
had insisted on cooking breakfast. He stated the argument began when he tried to
convince her not to cook eggs and bacon, but she continued to insist that “I’m
cooking. We’re hungry. I’m going to cook.” In a nearly unbroken narrative
running several pages, appellant described his versions of events:

             Q: What happened?

             A: She takes the pans back. I take them back out of her
             hands. I said, “Stop. You’re getting unruly, and this is
             ridiculous. Stop, [K].” Put the pans back up, and
             whenever I stood back up, she was in my face, telling me
             I’m not the boss of her, I don’t control her, I don’t do this,
             I don’t do that, she’ll cook if she damn well wants to,
             she’ll do anything in the world she wants to. And, nothing
             I do or say is going to stop, so get out of her way. I said,
             “[K], please get out of my face.” I mean she’s chewing
             the end of my nose off”


4
 The panel discredited her testimony about being slammed into the wall and
excepted this language from the assault consummated by battery specification.

                                           4
MITCHAM—ARMY 20140969

        Q: Mm-hmm.

        A: “Get out of my face.” When I got her away from me,
        she jumps and flies hot. She scratches, beats, hits. And, I
        took enough of it. I grabbed her on her arms. I walked
        her back into the - - across from my kitchen, into the
        living room, where the couch sat in front of my bay
        window. I laid her down on the couch, kind of with her
        back and her head on the sofa of the couch, where the
        pillow - - the back pillow of the couch. I laid her down,
        and she was just constantly slapping and hitting and
        scratching and kicking and doing everything she could.
        And, all I was doing was trying to calm her down. I said,
        “[K], you’ve got to stop this.” I said “There’s no sense in
        any of this.” I secured her hands, finally to keep her from
        hitting me. I take her arms, and I’m sitting on her
        stomach with my rear end’s on her stomach just holding
        her down. I put her arms under my knees, and I hold her.
        I got her pinned. I say, “Stop,” and I put my left hand
        over her mouth. I say, “[K], stop. This is getting
        ridiculous. You’re acting crazy for no reason. I don’t
        understand why you’re doing this, or what’s going on.
        Please stop.” She’s trying to scream a little bit. And I
        said, “Look, this is just going nowhere. We’re going to
        both wind up in trouble if you keep going like this.” I
        said, “Somebody’s going to wake up, hear you screaming,
        and call the police. This is all I need in my career. And, I
        know you definitely don’t need this. So, just stop please.”

        I looked at her, and I said, “Are you going to stop?” She
        shook her head yes. . . . I said “Okay. I’m going to get up
        and off of you.” She remained quiet when I took my hand
        off of her mouth. I backed up and out of the way. She
        stood up and went straight for the front door. I stood
        there and watched her stumbling. Opening the door,
        trying to get it unlocked. . . . And, I just followed along
        behind her. And, upon getting there, I seen that she was
        going to commit to run on into a driveway that conjoins
        with a busy highway and I didn’t want her to be drunk
        running around. So, I placed my hand on her right
        shoulder. As soon as my hand hit her shoulder, her feet
        fell out from under her. She gets on her back, and puts
        her fists up and her feet up, like you’re going to hurt me
        get away from me, I’m going to fight you. And, I’m


                                     5
MITCHAM—ARMY 20140969

             looking. I’m like, “What are you doing, [K]? Why are
             you like this?” So, I walk up to her, and I knelt down
             beside her. And, I take my hand, and I place it on her.
             And I say, “Please stop, [K]. Just get up. Let’s go inside
             and relax.” I said, “You’re going to wake the neighbors
             up.” This is on a Sunday morning. People’s [sic]
             probably getting ready to go to early church services,
             mass, whatever. I said “Please, just get up and go inside
             and relax.”

             “I’m not doing anything. He’s trying to kill me. You’re
             going to kill me. You’re going to hurt me. Blah blah blah
             blah.” I said, “Okay, then how about this? You’ve pissed
             me off. Fuck you. Get up. Get away from me.”

             [. . .]

             So, after I told her, “You know, you need to come get your
             stuff. Give me a few minutes to get it all together for you,
             and you can leave.”

             [. . .]

             And, I back off of her. I turn around. And, I walk inside
             my house. Close the front door and I lock it behind me. I
             don’t want to deal with any of it.

      Appellant offered no credible explanation for the injuries to Ms. KC’s neck
and throat. The cross-examination of appellant did not add to the credibility of
appellant’s version of events on direct-examination. 5 Testimony from the neighbor,


5
  In determining the findings are correct in fact, we likewise credit Ms. KC’s version
of events. In United States v. Pleasant, 71 M.J. 709, 713 (Army Ct. Crim. App.
2012) we stated an accused “testifies at his own peril” and adopted the logic of the
11th Circuit: “Most important, a statement by a defendant, if disbelieved by the
jury, may be considered as substantive evidence of the defendant’s guilt. By
‘substantive’ we mean evidence adduced for the purpose of proving a fact in issue as
opposed to evidence given for the purpose of discrediting a witness (i.e., showing
that he is unworthy of belief), or of corroborating his testimony. . . . when a
defendant chooses to testify, he runs the risk that if disbelieved the jury might
conclude the opposite of his testimony is true.” United States v. Williams, 390 F.3d.
1319, 1325 (11th Cir. 2004) (internal quotations and citations omitted). In other
words, an accused’s testimony that the light was red, if incredulous, can be
considered as positive evidence the light was in fact green.

                                          6
MITCHAM—ARMY 20140969

responding police, and emergency room personnel substantially confirmed Ms. KC’s
story. Each witnesses testified Ms. KC had significant bruising on her neck. One
doctor testified it was the worst case of strangulation he had seen that had not
resulted in death. The neighbors testified that Ms. KC banged on their door, fell
into the house when they opened the door and franticly asked for help because
appellant was “trying to kill [her].” A police officer testified that appellant was
agitated, and had scratches on his face, but otherwise appeared uninjured.

      The panel members apparently credited Ms. KC’s version of events and
convicted appellant of assault consummated by battery and aggravated assault.

                              LAW AND DISCUSSION

                                A. Indecent Language

       Appellant argues his conviction for communicating indecent language is
legally and factually insufficient. We agree the specification is factually
insufficient and therefore do not address the legal sufficiency of the specification.
However, we find appellant’s statement—though not indecent—was offensive,
grossly inappropriate, and certainly tended to bring discredit upon the Army.
Accordingly, we approve a finding of guilty to a general disorder as a lesser-
included offense.

                           1. Was the Statement Indecent?

      The President has defined indecent language as follows:

             “Indecent” language is that which is grossly offensive to
             modesty, decency, or propriety, or shocks the moral sense,
             because of its vulgar, filthy, or disgusting nature, or its
             tendency to incite lustful thought. Language is indecent if
             it tends reasonably to corrupt morals or incite libidinous
             thoughts. The language must violate community
             standards.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶
89.c.

       Not every offensive comment rises to the level of being “indecent.” At least
based on the record before us, we do not find appellant’s comment that related
menstrual cycles to trustworthiness was “indecent.” Appellant’s offensive statement
did not incite lust or vulgar thoughts. Discussion of menstrual cycles are not
“filthy” or “disgusting.” Rather, appellant’s comment was simply, if blatantly,
sexist. The offensiveness of appellant’s comment was not due to its “indecent”


                                           7
MITCHAM—ARMY 20140969

nature, but rather because it equated untrustworthiness with an immutable trait of
womanhood and relegated all women to a state of inferiority as compared to men.

      Confronted with a highly offensive statement, there is pull towards equating
“offensive” statements with “indecent” statements. That pull may be stronger given
appellant testified he saw nothing wrong with his statement. However, in
determining whether appellant’s statement was indecent, we must set aside the
statement’s offensive nature and look to whether the government proved beyond a
reasonable doubt the statement was “indecent” as that term is defined. We find the
government has not met its burden.

       Accordingly, we will except out from the specification the word “indecent.”
With the word “indecent” stricken, the specification alleges a general disorder:
appellant made a statement, and the statement was prejudicial to good order and
discipline and was service discrediting.

                                  2. First Amendment

       Before affirming the lesser-included offense of a general disorder, we discuss
the First Amendment implications of this lesser-included offense. The question,
broadly stated, is to what extent are statements that are prejudicial to good order and
discipline or service discrediting (i.e. the statement satisfies each element of Article
134) nonetheless prohibited from criminal sanction by the First Amendment?

       Our superior court dealt with this issue extensively in United States v. Priest,
a case that involved the prosecution, under Article 134, UCMJ, of disloyal
statements:

             From its beginning, this Court has construed Article 134,
             [UCMJ], as requiring punishable conduct to be palpably
             prejudicial to good order and discipline, and not merely
             prejudicial in an indirect and remote sense. Application of
             the standard to publications and statements by military
             personnel is extraordinarily important because of our
             veneration of the free speech values that the First
             Amendment protects.

             [. . .]

             First Amendment rights of civilians and members of the
             armed forces are not necessarily coextensive. . . .
             This Court has not fully delineated the limits on the right
             of free speech in the armed services. . . . Servicemen, like
             civilians, are entitled to the constitutional right of free


                                           8
MITCHAM—ARMY 20140969

             speech. But we have also noted that the right is not
             absolute in either the civilian or military community.
             In the armed forces some restrictions exist for reasons that
             have no counterpart in the civilian community.
             Disrespectful and contemptuous speech, even advocacy of
             violent change, is tolerable in the civilian community, for
             it does not directly affect the capacity of the Government
             to discharge its responsibilities unless it both is directed
             to inciting imminent lawless action and is likely to
             produce such action. In military life, however, other
             considerations must be weighed. The armed forces depend
             on a command structure that at times must commit men
             [and women] to combat, not only hazardous to their lives
             but ultimately involving the security of the Nation itself.
             Speech that is protected in the civil population may
             nonetheless undermine the effectiveness of response to
             command. If it does, it is constitutionally unprotected.

21 U.S.C.M.A. 564, 569-70, 45 C.M.R. 338, 343-44 (1972) (internal quotations and
citations omitted). While not a recent case, the framework suggested by Priest was
recently affirmed in United States v. Rapert:

             Even assuming arguendo that Appellant’s speech was
             within the ambit of the First Amendment’s embrace, the
             unique nature of Article 134, UCMJ, and the interests it
             seeks to protect justify the proscription of Appellant’s
             speech in this case. First, contrary to Appellant’s
             assertions, the Government proved a palpable connection
             between his speech and the military mission or
             environment. Second, the balance of interests in this case
             weighs heavily in favor of proscription.

75 M.J. 164, 171 (C.A.A.F. 2016)

      Here, we find appellant’s conduct to be constitutionally unprotected.
Appellant’s statement, which equated a women’s menstrual cycle with
untrustworthiness, was both prejudicial to good order and discipline and service
discrediting. The government introduced evidence to prove these elements and did
not merely assume that proof could be inferred. Appellant did not make the
statement in a private or personal capacity, but instead at a mandatory training
event. Finally, we note the pernicious effects of appellant’s statement on unit
cohesion and accomplishment of the mission. Appellant’s statement was no woman
could be trusted. In weighing appellant’s comment we must consider “the
paramount consideration of providing an effective fighting force for the defense of


                                          9
MITCHAM—ARMY 20140969

our country” and determine whether the danger presented by appellant’s comments
“will bring about the substantive evils that Congress has a right to prevent.” Priest,
21 C.M.A. at 570. Appellant’s statement falls outside this constitutional protection.

      At trial, appellant argued in a training environment one should not be
punished for speaking one’s mind. In this case, however, that argument is
unpersuasive. Appellant’s initial testimony on direct-examination was that his
statement was made because he was bored and wanted to get a “rise” out of people.
He has no plausible training purpose to his statement.

       Appellant also argued at trial, in the combat arms, vulgarity and coarseness
are common and his statement was made in jest. Perhaps all true. Certainly, it may
be unwise to expect priestly behavior of those charged with executing violence on
behalf of the nation. The UCMJ does not criminalize the making of every rude or
inappropriate joke. Nor, certainly, is it wise or appropriate to charge such conduct
every time it may be legally permissible to do so. It is also likely that in most cases
the appropriate government response is the path initially taken here: counseling. (a
path that appellant may have altered when he responded to the counseling by saying
“fuck this shit” to his commander). In any event, these concerns are likely beyond
the scope of our appellate review. Our review is limited to determining whether the
specification was correct in law and fact and should be approved. UCMJ art. 66(c).
Whether an offense should be pursued as a matter of prosecutorial discretion is
outside the scope of our review. See United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010).

                         B. Ineffective Assistance of Counsel

      Appellant’s second assignment of error argues his counsel was ineffective
during trial for failing to seek exculpatory evidence, for failing to call witnesses, for
making arguments that implied guilt and materially harmed appellant’s credibility,
and for failing to object to trial counsel’s argument. Both appellant and his counsel
submitted affidavits for us to consider on appeal.

      As our superior court explained in United States v. Datavs:

             To establish ineffective assistance of counsel, an appellant
             must demonstrate both (1) that his counsel’s performance
             was deficient, and (2) that this deficiency resulted in
             prejudice. In reviewing for ineffectiveness, the Court
             looks at the questions of deficient performance and
             prejudice de novo.




                                           10
MITCHAM—ARMY 20140969

             With respect to [the] first prong, courts must indulge a
             strong presumption that counsel’s conduct falls within the
             wide range of reasonable professional assistance.
             As to the second prong, a challenger must demonstrate a
             reasonable probability that, but for counsel’s deficient
             performance the result of the proceeding would have been
             different.

71 M.J. 420, 424 (C.A.A.F. 2012) (citations and internal quotation marks omitted);
see Strickland v. Washington, 466 U.S. 668 (1984). We do not find appellant has
met his burden.

       First, appellant alleges his counsel failed to exercise due diligence to find a
color photograph of his mug shot that appellant claimed would show injuries. After
reviewing the counsel’s affidavit, which is in accord with the motions practice in the
record of trial, we find counsel’s efforts were reasonable. Additionally, appellant
has not provided us with the color photo so it is unclear that any effort by his
counsel would have located the photo. Finally, without the photo we cannot find
appellant has met his burden of establishing prejudice.

       Second, appellant claims his counsel did not call certain witnesses who would
have aided in his defense. Appellant does not provide an affidavit from either
alleged witnesses as to how they would have testified. Rather, it is appellant who
avers to what they would have said. We find appellant has failed to meet his burden
of proof. See United States v. Cade, ARMY 20140325, 2016 CCA LEXIS 636
(Army Ct. Crim. App. 2016) (requiring affidavits from someone with personal
knowledge). Moreover, even looking into the affidavits, appellant’s counsel
provided sound tactical reasons for not calling each witness. Counsel avers, for
example, that one witness, appellant’s neighbor, had a prior conviction for rape, had
memory problems stemming from an accident, and offered to “say whatever was
necessary” to help appellant.

       Third, appellant argues his counsel’s arguments and trial strategy ended up
harming appellant’s credibility when he testified. In short, appellant’s counsel
argued and presented evidence in support of a theory appellant and Ms. KC were
engaged in a mutual drunken affray. Counsel intended to introduce evidence,
consistent with Ms. KC’s testimony, that both Ms. KC and appellant drank to excess
and engaged in a mutual affray, and therefore undermine the aggravated assault
specification—the most serious charge. See MCM, pt. IV, ¶ 54.c(2)(d). Appellant,
however, testified that he was sober, was entirely reasonable throughout, and was
acting only in self-defense. The record shows that counsel’s attempts to guide
appellant through his testimony were at times frustrated by appellant’s testimonial
enthusiasm.



                                         11
MITCHAM—ARMY 20140969

        We agree defense’s counsel’s theory of the case did not entirely square with
appellant’s testimony. However, what is not clear on appeal (as both counsel and
appellant fail to address it in their respective affidavits), is to what extent the
defense trial plan centered on appellant testifying in his own defense. That is, what
is a reasonable trial strategy if the accused is not planning on testifying may be
unreasonable in light of his expected testimony. Of course, whether an accused
testifies is ultimately appellant’s decision alone. Jones v. Barnes, 463 U.S. 745, 751
(1983). Accordingly, appellant has not rebutted the strong presumption that his
counsel’s performance was reasonable. 6

       As to the remaining alleged errors, we hold appellant has failed to
demonstrate prejudice. Appellant must prove prejudice. Strickland at 693. Here, on
appeal, appellant argues that “[h]ad counsel been effective, the result might have
been different.” The evidence against appellant was substantial. The government
introduced evidence from multiple sources of bruising and injury to Ms. KC’s neck,
which was inconsistent with appellant’s version of events that he acted in self-
defense. Appellant’s speculation on appeal that in the brief moments before Ms. KC
fled to the neighbor’s house, she had intentionally injured herself is entirely without
support. Lastly, appellant’s testimony was simply incredulous.

                                   CONCLUSION

     Having completed our review and in consideration of the entire record, we
AFFIRM only so much of Specification 2 of Charge III as finds:

             In that [Appellant], U.S. Army, did, at or near Fort Polk,
             Louisiana, on or about 16 October 2013, orally
             communicate to a classroom full of Soldiers after SHARP
             training, certain language, to wit: “I don’t trust anything
             that bleeds for seven days and doesn’t die,” or words to
             that effect, such conduct being of a nature to the prejudice
             of good order and discipline in the armed forces and of a
             nature to bring discredit upon the armed forces.

      The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles articulated by our superior court in United States v.


6
 We also note appellant was charged with aggravated assault. Self-defense is not a
defense to aggravated assault when appellant was faced only with a simple battery.
See Rule for Courts-Martial 916(e)(1). Put differently, appellant’s view of the
evidence on appeal would have left little defense against the most serious charge he
faced.

                                          12
MITCHAM—ARMY 20140969

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986). We are confident that based on the entire record and appellant’s
course of conduct, the panel would have imposed a sentence of at least that which
was adjudged, and accordingly we AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                                JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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