       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                          Appellant
                                v.
           Chase J. EASTERLY, Senior Airman
             United States Air Force, Appellee
                          No. 19-0398
                      Crim. App. No. 39310
     December 4, 2019, Argued—Decided February 4, 2020
              Military Judge: Charles E. Wiedie Jr.
   For Appellant: Major Anne M. Delmare (argued); Colonel
   Julie L. Pitvorec, Lieutenant Colonel Brian C. Mason, Major
   Michael T. Bunnell, and Mary Ellen Payne, Esq. (on brief).
   For Appellee: Captain David A. Schiavone (argued); Major
   Mark J. Schwartz.
   Judge RYAN delivered the opinion of the Court, in which
   Chief Judge STUCKY, and Judges OHLSON, SPARKS,
   and MAGGS, joined.
                     _______________


   Judge RYAN delivered the opinion of the Court.
    A general court-martial convicted Appellee, contrary to
his pleas, of one specification of attempted premeditated
murder in violation of Article 80, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 880 (2012). The members
sentenced Appellee to a dishonorable discharge, confinement
for seven years, forfeiture of all pay and allowances, and
reduction to E-1. The convening authority approved the
adjudged sentence.
    As relevant here, the United States Air Force Court of
Criminal Appeals (CCA) specified the issue “whether the mil-
itary judge committed plain error by failing to instruct sua
sponte on the impact of a punitive discharge on permanent
retirement for physical disability.” United States v. Easterly,
2019 CCA LEXIS 175, at *2, 2019 WL 1616526, at *1 (A.F.
Ct. Crim. App. Apr. 12, 2019) (unpublished). A majority found
the military judge plainly erred because a Formal Physical
            United States v. Easterly, No. 19-0398/AF
                      Opinion of the Court

Evaluation Board (FPEB) report recommending Appellee’s
disability retirement set an evidentiary predicate for the in-
struction; the FPEB report, Appellee’s potential retirement,
and his disability rating were discussed at several points
throughout the trial; and the failure to instruct affected Ap-
pellee’s substantial right “to have the court-martial panel
members consider all of the information they were allowed to
consider before they adjudged his sentence.” 2019 CCA
LEXIS 175, at *48–55, 2019 WL 1616526, at *17–19. The CCA
affirmed the findings but set aside the sentence and author-
ized a rehearing on the sentence. 2019 CCA LEXIS 175, at
*57, 2019 WL 1616526, at *19.
    The Judge Advocate General of the Air Force then certi-
fied the following issue pursuant to Article 67(a)(2), UCMJ,
10 U.S.C. § 867(a)(2) (2012):
       Whether the Air Force Court of Criminal Appeals
       erred in finding that the military judge committed
       plain and prejudicial error by failing to instruct the
       panel sua sponte regarding the impact of a punitive
       discharge on Appellee’s potential permanent disabil-
       ity retirement, where Appellee did not request such
       an instruction.
    We hold that there was no error here, let alone plain error.
The test for when a military judge must instruct on the im-
pact of a punitive discharge on retirement benefits is simple:
There must be (1) an evidentiary predicate and (2) a request
for the instruction. United States v. Boyd, 55 M.J. 217, 221
(C.A.A.F. 2001). Here, we need not decide whether the facts
constitute an evidentiary predicate as no request was made,
and the military judge thus had no duty to give the instruc-
tion. We thus answer the certified question in the affirmative
and set aside the CCA’s decision as to the sentence.
                       I. BACKGROUND
    Appellee met a woman through an online dating service.
Shortly after a third date that ended badly, the details of
which are discussed at Easterly, 2019 CCA LEXIS 175, at *4–
7, 2019 WL 1616526, at *2, Appellee went to her apartment
with every intent to “commit the perfect murder.” He brought
a “kill bag” containing a knife, bleach, a lighter, lighter fluid,
gloves, trash bags, extra clothes, and a painter’s mask. Appel-
lee later described in great detail how he would have used the


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                       Opinion of the Court

items in the bag to harm his victim and cover up the evidence.
He outlined the actions he took to avoid detection, explaining
that “if [he] did actually go through with the act . . . that ac-
tually hurt [the woman], [he] wouldn’t want the cops to know
who [he] was.”
   When Appellee arrived at the woman’s door, he knocked
once, but the woman did not respond. After waiting several
minutes, he knocked again, and again no one answered. For-
tunately for the intended victim, he then left because he as-
sumed she was not home.
    Afterwards, Appellee visited the psychologist treating him
for schizophrenia and disclosed what happened. Two events
flowed from this disclosure.
    First, an FPEB recommended, based on his diagnosis of
schizophrenia, “Permanent Retirement with a disability rat-
ing of 100% [in accordance with] Department of Defense guid-
ance for applying the Veterans Administration Schedule for
Rating Disabilities.” This potential permanent disability re-
tirement had not yet been approved by the Secretary of the
Air Force at the time of trial. See 10 U.S.C. § 1201 (2012) (Ser-
vice Secretary makes final retirement determination).
   Second, an Air Force Office of Special Investigations
(AFOSI) investigation ensued, culminating in Appellee’s
statement to AFOSI and the referral, inter alia, of a charge
and specification of attempted premeditated murder to a gen-
eral-court martial.
    The Government introduced the FPEB recommendation
at trial, and both parties referred to Appellee’s disability rat-
ing multiple times throughout their findings arguments.1
    The Government argued at sentencing for a dishonorable
discharge, focusing on the seriousness of the offense and em-
phasizing that the victim was a civilian, that Appellee went
to her home, that Appellee gained the victim’s trust partially

   1 During findings, the Government used the FPEB recommen-
dation to establish motive for communicating a threat to kill any
doctor who changed his diagnosis, an Article 134, UCMJ, 10 U.S.C.
§ 934, charge of which Appellee was acquitted. The defense refer-
enced Appellee’s disability rating to, inter alia, demonstrate lack of
mental responsibility.



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                       Opinion of the Court

through his military connection, and that while “[t]here was
no bloodshed, no crime scene, . . . he still took away that sense
of trust, that sense of safety, her energy.”
    Defense counsel argued the sentence should account for
Appellee’s need for medication and treatment, and that a dis-
honorable discharge “strips him of all his benefits. It strips
him of all his Veteran[s] Affair[s] benefits.” Appellee’s written
unsworn statement also noted his need for continued medica-
tion through his Veterans Affairs benefits and that a punitive
discharge would remove those benefits.
    The military judge instructed the members that a punitive
discharge “deprives one of substantially all benefits
administered by the Department of Veterans Affairs and the
Air Force.” He later instructed that “[t]he consequences that
flow from a federal conviction, other than the punishment, if
any you impose, are collateral consequences of the conviction.
The collateral consequences stemming from a federal
conviction should not be part of your deliberations in arriving
at a sentence.”2
    Neither party requested an instruction on the impact of a
punitive discharge on Appellee’s potential permanent disabil-
ity retirement. The military judge did not ask the parties if
they wanted such an instruction and did not give one sua
sponte. No member asked about Appellee’s retirement.
                         II. DISCUSSION
   “Failure to object to . . . omission of an instruction [on sen-
tencing] . . . constitutes waiver of the objection in the absence
of plain error.”3 Rule for Courts-Martial (R.C.M.) 1005(f)

   2  This Court has long recognized that the impact of a punitive
discharge on retirement benefits where a member is “perilously
close to retirement,” United States v. Greaves, 46 M.J. 133, 139
(C.A.A.F. 1997), is not collateral, but rather “a direct and proximate
consequence of the sentence.” United States v. Griffin, 25 M.J. 423,
424 (C.M.A. 1988).
   3 Despite the rule using the word “waiver,” this Court has inter-
preted the near identical language in R.C.M. 920(f) (findings in-
structions) that simultaneously discusses waiver and plain error as
referring to forfeiture, not waiver. See, e.g., United States v. Davis,
76 M.J. 224, 227 n.1 (C.A.A.F. 2017); United States v. Ahern, 76



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(2016). Plain error requires showing: (1) error; (2) the error
was clear or obvious; (3) the error prejudiced the accused’s
substantial rights. United States v. Grier, 53 M.J. 30, 34
(C.A.A.F. 2000). Where, as here, the military judge committed
no error, the plain error analysis ends.
    In Boyd, 55 M.J. at 221, this Court stated plainly that “we
will require military judges in all cases tried after the date of
this opinion to instruct on the impact of a punitive discharge
on retirement benefits, if [(1)] there is an evidentiary predi-
cate for the instruction and [(2)] a party requests it.”4 In the
instant case, Appellee failed to satisfy this test because he
failed to request the instruction,5 and the military judge had
no sua sponte duty to give the instruction without a request.
Sua sponte means “[w]ithout prompting or suggestion.”
Black’s Law Dictionary (11th ed. 2019).
    However, as evidenced by the CCA’s decision in this case,
Boyd’s later discussion of failure to request an instruction on
the impact of a punitive discharge on temporary disability re-
tirement has produced some confusion. In Boyd, this Court
announced the clear two-part test for a military judge’s re-
quirement to give a retirement instruction as a prospective
rule. 55 M.J. at 221. But with respect to analyzing Boyd’s fail-
ure to request an instruction on the impact of a punitive dis-
charge on temporary disability retirement in his case, we
stated we would “grant relief only if the military judge’s fail-
ure to instruct sua sponte was plain error,” and then con-
cluded that there was no factual predicate for the instruction,
and thus no error. Id. at 222.
    At odds with the clear statement of the prospective rule,
this appears to have been an unartfully crafted attempt to
give Boyd himself the benefit of the rule with respect to a form


M.J. 194, 197 (C.A.A.F. 2017). We see no reason to interpret the
provision for sentencing instructions any differently. We review for-
feited issues for plain error. Davis, 76 M.J. at 227 n.1.
   4  This test applies to all forms of retirement benefits, including
retirement for disability.
   5 Because Appellee failed to request the instruction, we need
not decide whether the facts here constitute a sufficient evidentiary
predicate for the instruction.



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                        Opinion of the Court

of retirement benefits for which he did not request an instruc-
tion. That attempt, however, does not change the clear state-
ment of the prospective rule, nor does it create a duty for a
military judge to sua sponte instruct on the effect of a punitive
discharge on retirement benefits. Rather, where the two-part
test is met, the military judge must
       be liberal in granting requests for such an instruc-
       tion. [The military judge] may deny a request . . .
       only in cases where there is no evidentiary predicate
       for it or the possibility of retirement is so remote as
       to make it irrelevant to determining an appropriate
       sentence.
          The instruction should be appropriately tailored
       to the facts of the case with the assistance of
       counsel . . . .
Id. at 221.
    While both the evidentiary predicates and benefits for
retirement for length of service and disability retirement—
temporary or permanent—may be different, there is no
question that a punitive discharge affects each form of
retirement in turn. We thus clarify that both an actual
predicate and a request by a party are required for an
instruction on the effects of a punitive discharge with respect
to all forms of retirement.6
    Requiring a request appropriately puts counsel for both
sides in control of deciding whether such an instruction com-
ports with their overall strategy and prevents the military
judge from unduly interfering with that strategy. Cf. Griffin,
25 M.J. at 424 (finding no error where military judge, at trial
counsel’s request and in response to a members’ question, in-
structed members about the effect of a punitive discharge on
retirement benefits in the absence of a defense objection);

   6  We do not address situations where instructions might be
needed to respond to a question from the members, see, e.g.,
Greaves, 46 M.J. at 134 (military judge erred in failing to correctly
answer members’ questions about the effect of a bad-conduct dis-
charge on retirement benefits), or to correct a misstatement of the
law by counsel. Cf. United States v. Alameda, 57 M.J. 190, 199
(C.A.A.F. 2002) (holding the military judge erred in failing to pro-
vide curative instructions after misstatements by counsel).




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United States v. Mead, 72 M.J. 479, 482 (C.A.A.F. 2013) (rec-
ognizing the accused retains the discretion whether to reveal
a nonjudicial punishment record involving the same conduct
at sentencing).7 This is consistent with the language in Boyd,
which notes that where an instruction is given, it “should be
appropriately tailored to the facts of the case with the assis-
tance of counsel.” Boyd, 55 M.J. at 221 (emphasis added).
                          III. DECISION
    The Boyd test, which requires a request, cannot be
squared with a sua sponte duty for a military judge to give
the instruction. Accordingly, we answer the certified question
in the affirmative.
    The judgment of the United States Air Force Court of
Criminal Appeals is affirmed as to findings and set aside as
to the sentence. The case is returned to the Judge Advocate
General of the Air Force for remand to the Court of Criminal
Appeals for further review in accordance with this decision.




   7 Indeed, there may be strategic reasons why defense counsel
might not want to highlight the effects of a punitive discharge with
an instruction, such as the fact that a punitive discharge cuts off an
accused’s retirement eligibility. Cf. United States v. Stargell, 49
M.J. 92, 93 (C.A.A.F. 1998) (affirming the government’s argument
at sentencing that the appellant would honorably retire if not sen-
tenced to a punitive discharge under the facts of that case).



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