                        UNITED STATES, Appellee

                                    v.

                    Jordan M. PETERS, Specialist
                        U.S. Army, Appellant

                              No. 14-0289

                       Crim. App. No. 20110057

       United States Court of Appeals for the Armed Forces

                       Argued October 21, 2014

                      Decided February 12, 2015

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and OHLSON, JJ., joined. STUCKY and RYAN, JJ., each
filed a separate dissenting opinion.

                                 Counsel

For Appellant: Captain Payum Doroodian (argued); Colonel Kevin
Boyle and Major Amy E. Nieman (on brief); Major Vincent T.
Schuler and Captain Ian M. Guy.

For Appellee: Captain Timothy C. Erickson (argued); Colonel
John P. Carrell, Lieutenant Colonel James L. Varley and Major
John Choike (on brief); Captain T. Campbell Warner.



Military Judge:   Mark Bridges



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Peters, No. 14-0289/AR


     Chief Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted Appellant, based on mixed pleas, of drunken

operation of a vehicle, causing injury because of that drunken

operation, two specifications of involuntary manslaughter, and

aggravated assault in violation of Article 111, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 911 (2012); Article 119,

UCMJ, 10 U.S.C. § 919 (2012); Article 128, UCMJ, 10 U.S.C. § 928

(2012). 1   He was sentenced to ten years of confinement,

forfeiture of all pay and allowances, reduction to the grade of

E-1, and a bad-conduct discharge.     The convening authority

approved the findings and the sentence except for a reduction of

the period of confinement to nine years and six months.     The

United States Army Court of Criminal Appeals affirmed the

findings and sentence as approved by the convening authority.

     This Court granted review of the following issue:

     WHETHER THE MILITARY JUDGE ERRED IN DENYING THE
     IMPLIED BIAS CHALLENGE AGAINST [LIEUTENANT COLONEL
     COOK], IN LIGHT OF [HIS] PROFESSIONAL RELATIONSHIP
     WITH TRIAL COUNSEL, THE SPECIAL COURT-MARTIAL
     CONVENING AUTHORITY, AND THE INVESTIGATING OFFICER.

     For the reasons set forth below, we conclude that the

military judge abused his discretion when he denied the

1
  Appellant was also charged with, and pled not guilty to, one
specification under Article 134, UCMJ, 10 U.S.C. § 934 (2012),
but the charge was dismissed after the findings of guilty and
before the sentence upon a defense motion.


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United States v. Peters, No. 14-0289/AR


challenge for cause against Lieutenant Colonel (LTC) Cook.

There is no per se rule of disqualification when a member knows

or has worked with trial counsel or defense counsel.      Rather,

such relationships are evaluated through the lens of Rule for

Courts-Martial (R.C.M.) 912(f)(1)(N) and the doctrines of actual

and implied bias.    This case is a close case and a rare case

where the record reflects a qualitative bond rising to the level

of implied bias.    Therefore the military judge abused his

discretion by not applying the liberal grant mandate.      Thus, we

reverse.

                             Background

     Appellant elected to be tried by a panel of both officer

and enlisted members.    One of the officers placed on the panel

was LTC Cook, a battalion commander with the 2nd Brigade Combat

Team, 4th Infantry Division.    Prior to trial, counsel had an

opportunity to voir dire LTC Cook, who disclosed that he had a

professional relationship with Captain (CPT) Krupa, the trial

counsel in this case.    Specifically, CPT Krupa served as a judge

advocate for LTC Cook’s brigade.

     During voir dire, LTC Cook informed counsel and the

military judge that he sought CPT Krupa’s legal advice on a

regular basis, including the night before voir dire, on an

unrelated military justice issue.      LTC Cook was aware that CPT

Krupa was involved with this case when they spoke on the phone

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United States v. Peters, No. 14-0289/AR


and stated that their phone conversation likely ended with the

words, “see you tomorrow.”

     LTC Cook also called CPT Krupa after being summoned to

serve on the court-martial panel:

     [LTC Cook:] [A]s soon as I was notified last week that you
     know -- I was talking to Captain Krupa again about another
     legal matter and it was -- I said, “Hey, I’ve been summoned
     to be a court-martial panel member for a case that involves
     the brigade,” and Captain Krupa said, “Sir, I’m aware of
     that, and it’s a -- sir, it’s not uncommon practice.” I
     said, “Okay.” Because I was filling out my questionnaire
     on whether or not I -- to be a court-martial panel member,
     or assessing, you know, how to deal with my schedule and be
     able to serve on this court-martial, and so as we discussed
     an investigation that was under legal review, I did say,
     “Hey, I’ve been summoned to be on this court-martial.”

     During voir dire, LTC Cook also volunteered that he knew

Colonel (COL) Kolasheski, the brigade commander who forwarded

Appellant’s charges for court-martial.    When asked about that

relationship, he said that COL Kolasheski was his “rater and

boss,” but that the relationship would “not affect my ability to

be fair and impartial in this case.”   Additionally, when asked

whether “any member [is] aware of any matter that might raise

substantial question concerning your participation in this

trial,” LTC Cook raised his hand because Major (MAJ) Krattiger,

the investigating officer assigned to Appellant’s case, was LTC

Cook’s executive officer (XO).

     Appellant objected to LTC Cook’s panel membership because

of these three relationships.    In opposing the challenge, trial


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United States v. Peters, No. 14-0289/AR


counsel (CPT Krupa) -- whose own relationship with LTC Cook was

in question -- provided what amounted to a personal endorsement

of LTC Cook’s character as argument that he should remain on the

panel:

     [TC:] Colonel Cook is one of the most conscientious and
     thoughtful commanders within the brigade. . . . He takes
     this incredibly seriously as evidenced by his answers.

The military judge denied Appellant’s implied bias challenge and

also relied on LTC Cook’s character as the basis for that

decision:

     [MJ:] I can’t say enough about how I believe that his [LTC
     Cook’s] demeanor, his thoughtful answers to the questions
     that were asked indicate to me that he is truthful and that
     he can be an impartial panel member in this case.

In discussing his findings, the military judge also summarily

stated that he had considered the legal test for implied bias,

including the requirement that the liberal grant mandate be

considered:

     [MJ:] Concerning implied bias, implied bias exists if an
     objective observer would have a substantial doubt about the
     fairness of this court-martial proceeding. And I think
     that an objective observer who heard Colonel Cook and saw
     Colonel Cook responding to the questions of counsel would
     not have any reason to doubt his impartiality in this case.
     So, I don’t believe that there’s actual or implied bias
     established in this case. And I am considering the liberal
     grant mandate that the Appellate Courts have asked me to
     consider in deciding whether or not to grant these
     challenges. I have considered actual and implied bias with
     respect to that. And again, I find no reason to grant a
     challenge for cause against Lieutenant Colonel Cook.




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United States v. Peters, No. 14-0289/AR


                          Standard of Review

     We review implied bias challenges pursuant to a standard

that is “less deferential than abuse of discretion, but more

deferential than de novo review.”      United States v. Moreno, 63

M.J. 129, 134 (C.A.A.F. 2006); United States v. Napoleon, 46

M.J. 279, 283 (C.A.A.F. 1997).    Whereas a military judge can

“observe the demeanor of the court members” in order to

determine credibility in the case of actual bias, cases of

implied bias are based upon an objective test and therefore the

military judge is given less deference in such cases.     United

States v. Miles, 58 M.J. 192, 194-95 (C.A.A.F. 2003).

     The military judge is also mandated to err on the side of

granting a challenge.    This is what is meant by the liberal

grant mandate.     See United States v. Rome, 47 M.J. 467, 469

(C.A.A.F. 1998).    Because “the interests of justice are best

served by addressing potential member issues at the outset of

judicial proceedings . . . . in close cases military judges are

enjoined to liberally grant challenges for cause.”     United

States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).     In other

words, if after weighing the arguments for the implied bias

challenge the military judge finds it a close question, the

challenge should be granted.     This mandate stems from a long-

standing recognition of certain unique elements in the military

justice system including limited peremptory rights and the

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United States v. Peters, No. 14-0289/AR


“‘manner of appointment of court-martial members [that] presents

perils that are not encountered elsewhere.’”    United States v.

James, 61 M.J. 132, 139 (C.A.A.F. 2005) (quoting United States

v. Smart, 21 M.J. 15, 19 (C.M.A. 1985)).    It also serves as a

preventative measure because “it is at the preliminary stage of

the proceedings that questions involving member selection are

relatively easy to rapidly address and remedy.”    Clay, 64 M.J.

at 277.

     This Court has previously noted that although it “‘do[es]

not expect record dissertations’” from the military judge’s

decision on implied bias, it does require “‘a clear signal that

the military judge applied the right law.’”    Id. (quoting United

States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).

Incantation of the legal test without analysis is rarely

sufficient in a close case.   This is a close case.   Where a

military judge determines not to grant the challenge, additional

analysis on the record will better inform appellate courts in

their review and determination as to whether there was an abuse

of discretion.   Downing, 56 M.J. at 422.   We will afford a

military judge less deference if an analysis of the implied bias

challenge on the record is not provided.    See United States v.

Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (citing United States

v. Richardson, 61 M.J. 113, 120 (C.A.A.F. 2005)).



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United States v. Peters, No. 14-0289/AR


                            Implied Bias

     R.C.M. 912(f)(1)(N) sets the basis for an implied bias

challenge, which stems from the “historic concerns about the

real and perceived potential for command influence” in courts-

martial.   Clay, 64 M.J. at 277.   Unlike the test for actual

bias, this Court looks to an objective standard in determining

whether implied bias exists.   United States v. Wiesen, 56 M.J.

172, 175 (C.A.A.F. 2001).   The core of that objective test is

the consideration of the public’s perception of fairness in

having a particular member as part of the court-martial panel.

Rome, 47 M.J. at 469 (C.A.A.F. 1998).      In reaching a

determination of whether there is implied bias, namely, a

“perception or appearance of fairness of the military justice

system,” the totality of the circumstances should be considered.

United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995).    While

cast as a question of public perception, this test may well

reflect how members of the armed forces, and indeed the accused,

perceive the procedural fairness of the trial as well. 2




2
  At times, this Court has also cast the test as one asking
“whether most people in the same position would be prejudiced.”
Wiesen, 56 M.J. at 174 (quoting United States v. Armstrong, 54
M.J. 51, 53-54 (2000) (internal quotation marks omitted). That
may well inform the implied bias analysis, but this question is
better oriented to objectively evaluate actual bias than to
serve as the test for implied bias.


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United States v. Peters, No. 14-0289/AR


                            Discussion

     In determining whether the military judge abused his

discretion, we turn first to his reasoning for denying the

causal challenge.   The military judge stated for the record that

he had considered the mandate to generously grant challenges,

but that he found “no reason to grant a challenge for cause.”

He did not, however, engage the specific grounds for challenge

of LTC Cook’s panel membership, including his relationship to

CPT Krupa.   Rather, his reasoning relied solely on LTC Cook’s

demeanor and thoughtfulness in answering the voir dire

questions.

     The military judge’s reasoning is problematic for two

reasons.   First, we test for implied bias not on the subjective

qualities of the panel member, but on the effect that panel

member’s presence will have on the public’s perception of

whether the appellant’s trial was fair.   Rome, 47 M.J. at 469.

Thus, although a panel member’s good character can contribute to

a perception of fairness, it is but one factor that must be

considered in the context of the other issues raised concerning

that individual’s panel membership.   See United States v.

Strand, 59 M.J. 455, 459 (C.A.A.F. 2004) (“In making judgments

regarding implied bias, this Court looks at the totality of the

factual circumstances.”).



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United States v. Peters, No. 14-0289/AR


     Second, the well-settled law that requires military judges

to consider on the record whether to grant causal challenges

exists not merely to have the words of the test preserved on the

record, but to show that the grounds for the challenge were

given serious and careful consideration in the first instance.

Downing, 56 M.J. at 422 (“[W]here the military judge places on

the record his analysis and application of the law to the facts,

deference is surely warranted.”).    Although the military judge

here said he was considering the mandate, the record does not

provide further analysis as to why, given the specific factors

in this case, the balance tipped in favor of denying the

challenge.   We therefore turn next to those specific factors to

analyze whether, although absent from the military judge’s

reasoning on the record, they support the finding that there

were no grounds for granting the implied bias challenge.

     The Government rightly points out, and this Court well

recognizes, that military communities and units are close-knit.

Relationships among panel members and others involved in the

case are unavoidable.   We recognize it is not uncommon, nor

inappropriate, for a panel member to be acquainted

professionally with other individuals involved in the trial.    As

a result, there is no per se disqualification in circumstances

where a member of a panel knows or has worked with trial counsel

or defense counsel.   United States v. Hamilton, 41 M.J. 22, 25

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United States v. Peters, No. 14-0289/AR


(C.M.A. 1994).   At the same time, M.R.E. 912 generally, and the

Military Judges’ Benchbook specifically, directs counsel and

military judges to explore such contacts, to ensure that they

are not qualitatively of a sort that reflects the kind of bond

that would undermine the fairness of a proceeding or raise the

prospect of appearing to do so.    See Richardson, 61 M.J. at 119

(C.A.A.F. 2005) (the Court recognized the “qualitative nature of

the relationships between trial attorneys and officers in the

commands those attorneys advise” and thus emphasized “the

importance of thorough voir dire in such circumstances”);

Bagstad, 68 M.J. at 463 (Baker, C.J., dissenting, with whom

Erdmann, J., joined); cf. Strand, 59 M.J. at 459 (the Court was

“satisfied” with the “deliberate manner of the military judge’s

voir dire” and thus did not find an abuse of discretion).

     When considering all the factors, this is a case where LTC

Cook’s relationship to CPT Krupa could undermine the perception

of fairness in the proceedings.    LTC Cook regularly relied upon

CPT Krupa for legal advice on military justice matters.   He

trusted that legal advice and believed that CPT Krupa did good

work as a lawyer.   As soon as LTC Cook was summoned to be a

court-martial panel member in this case, he sought CPT Krupa’s

input about whether it was common that someone from within the

brigade serve on a panel.   Despite knowing that he would be

serving as a panel member in CPT Krupa’s case, LTC Cook also

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United States v. Peters, No. 14-0289/AR


called CPT Krupa the night before voir dire.   They did not talk

about Appellant’s case, but they did sign off the conversation

by saying “see you tomorrow.”   Finally, in objecting to

Appellant’s causal challenge, CPT Krupa relied upon his personal

knowledge of LTC Cook’s character to argue on behalf of keeping

him on the panel.   While the appearance would be more

problematic were the member to have shown special trust and

confidence in the integrity of the trial counsel, rather than

trial counsel in the member, CPT Krupa’s “testimonial” on behalf

of LTC Cook raised the appearance that there was a qualitative

bond between counsel and member that could undermine perceptions

of fairness.   None of which is to suggest either officer did

anything wrong.   We should want and wish for especially strong

bonds between judge advocates and the commanders they advise,

provided such bonds do not carry over or appear to carry over

into the trial proceedings.

     The test for implied bias, however, is not whether the

panel member is subjectively a person of good character.   See

Miles, 58 M.J. at 194-95.   Rather, we are concerned with how the

public would perceive the fairness of a trial when, in this

case, the panel member’s relationship to trial counsel exceeds

the norm.   Thus, the effect of CPT Krupa’s personal appeal to

LTC Cook’s character in opposing the implied bias challenge, in

addition to the close working relationship and phone calls

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United States v. Peters, No. 14-0289/AR


between the two, did not serve to overcome the issue of implied

bias, but rather highlighted the grounds for why, in this case,

the public would question the fairness of Appellant’s trial.

     A professional relationship between a panel member and

trial counsel is not per se a ground for granting an implied

bias challenge.    Here, however, the totality of the factors

support the conclusion that Appellant had good grounds for

challenging LTC Cook’s membership based on implied bias.    LTC

Cook and CPT Krupa’s relationship went beyond what would be

perceived as fair to an appellant in the context of a typical

court-martial. 3

                             Conclusion

     Therefore, in this case, where the military judge did no

more than invoke the implied bias doctrine and where the facts

otherwise show an unusually strong bond between trial counsel

and a member of the panel, we conclude that the military judge

abused his discretion in not erring on the side of caution and

excusing LTC Cook on the ground of implied bias.   The decision

of the United States Army Court of Criminal Appeals is reversed,

3
  As a result, we note, but do not ultimately address the two
additional grounds for the implied bias challenge: COL
Kolasheski, who forwarded the charges, was LTC Cook’s “rater”
and MAJ Krattiger, the investigating authority in the case, was
LTC Cook’s XO. Although perhaps individually neither of these
relationships would provide a sufficient ground on which to
grant an implied bias challenge, their existence does contribute
to the totality of the factors considered in determining that
the challenge against LTC Cook should have been granted.
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United States v. Peters, No. 14-0289/AR


and the findings and sentence are set aside.   The record of

trial is returned to the Judge Advocate General of the Army.   A

rehearing may be authorized.




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United States v. Peters, No. 14-0289/AR


     STUCKY, Judge (dissenting):

     The military judge did not err in declining to grant the

challenge for cause against LTC Cook.   In the first place, the

judge did significantly more than simply invoke the liberal

grant mandate on the record; he discussed LTC Cook’s responses

to voir dire and analyzed his demeanor and impartiality in

denying the challenge.   Consequently, his analysis is entitled

to deference.   See United States v. Clay, 64 M.J. 274, 276

(C.A.A.F. 2007).

     Second, the military judge’s decision was the correct one.

It is settled that “‘implied bias should be invoked rarely.’”

Id. at 277 (quoting United States v. Leonard, 63 M.J. 398, 402

(C.A.A.F. 2006)); see also United States v. Lavender, 46 M.J.

485, 489 (C.A.A.F. 1997) (“[A]ppellant did not carry his burden

at trial of showing that his case is the ‘rare exception’

justifying use of the implied-bias doctrine.”).   In United

States v. Downing, this Court upheld a military judge’s denial

of a challenge for implied bias against a member who was a

professional colleague and friend of trial counsel, noting that

an objective observer could distinguish between that

relationship and one between “individuals whose bond of

friendship might improperly find its way into the members’

deliberation room.”   56 M.J. 419, 423 (C.A.A.F. 2002).
United States v. Peters, No. 14-0289/AR


     There is no evidence in this case that the trial counsel

and LTC Cook were personal friends, or that there existed any

special bond between them that might undermine the fairness of

this court-martial.    In a year’s time, trial counsel had advised

LTC Cook only “[a] dozen” times.       They never discussed

Appellant’s case substantively.    Further, LTC Cook specifically

affirmed at voir dire that his relationship with trial counsel

“will not affect my ability to be fair and impartial in this

case.”   These facts establish that the relationship consisted of

“formal and professional” contact “not indicative of special

deference or bonding,” and that it was therefore permissible for

LTC Cook to sit on the panel.    United States v. Richardson, 61

M.J. 113, 119 (C.A.A.F. 2005).

     The majority states that because LTC Cook trusted the

advice of trial counsel, we should question LTC Cook’s judgment

and impartiality.   United States v. Peters, __ M.J. __, __ (11-

12) (C.A.A.F. 2015).   It also relies on the words, “see you

tomorrow,” as evidence of bias, as though the sign-off statement

-- following a discussion of business matters -- was indicative

of special deference or bonding.       Id. at 12.   And the majority

strongly criticizes trial counsel’s endorsement of LTC Cook’s

character.   Peters, __ M.J. at __ (5, 12).      But the military

judge explicitly and correctly disavowed consideration of trial

counsel’s endorsement, interrupting him to say:       “Captain Krupa,


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United States v. Peters, No. 14-0289/AR


I’m going to stop you there.   We’re not going to consider things

that haven’t been admitted in this court, okay.   Your own,

outside of court, understanding of Colonel Cook is not

relevant.”   Rejecting trial counsel’s assessment of LTC Cook,

the military judge made his own assessment of LTC Cook’s

demeanor and responsiveness to voir dire questions, and decided

to deny the challenge accordingly.

     I also do not see how trial counsel’s relationship with the

panel member in this case is distinguishable from that in United

States v. Castillo, __ M.J. __ (C.A.A.F. 2015).    There, the

trial counsel served with and provided military justice

assistance to each of the four challenged members.    See id. at

__ (3-6).    One member met regularly with trial counsel to

discuss ongoing military justice matters within his battalion.

Another consulted with trial counsel regarding an officer

separation board resulting from allegations of larceny and rape.

Both viewed trial counsel’s legal advice to be sound.     The

majority has not explained why the relationship in Peters

“exceeds the norm,” __ M.J. at __ (12), whereas the

relationships in Castillo were so minor as to merit little

mention of their relevance to implied bias challenges.

Castillo, __ M.J. at __ (9).

     Finally, the majority appears to expand the ambit of the

“public perception” test contrary to our case law by writing


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United States v. Peters, No. 14-0289/AR


that the implied bias test “may well reflect how members of the

armed forces, and indeed the accused, perceive the procedural

fairness of the trial as well.”   Peters, __ M.J. at __ (8).     The

accused’s perception of the fairness of his trial has never been

part of the implied bias test.

     I agree that it is proper for counsel and military judges

to explore professional contacts between panel members and trial

or defense counsel, id. at __ (10-11), and in other

circumstances such relationships might result in findings of

implied bias.   But this is not such a case.    Under these

circumstances, a public observer familiar with the military

justice system would not doubt the fairness of the trial solely

because of this professional relationship.     I would affirm.




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United States v. Peters, 14-0289/AR


       RYAN, Judge (dissenting):

       I agree with Judge Stucky that the military judge

recognized and applied the correct law and engaged in voir dire

to explore the relationship between trial counsel and the

challenged member.    Under our precedent he, therefore, did not

abuse his discretion.    United States v. Clay, 64 M.J. 274, 277

(C.A.A.F. 2007); United States v. Napoleon, 46 M.J. 279, 283

(C.A.A.F. 1997).    Although one might, as the majority does,

conclude that another course of action would have been more

appropriate, de novo review has never before been the standard

of review where the military judge clearly recognized the

correct law and made no erroneous factual determination.    See,

e.g., United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F.

2000).    It is unclear to me what level of excruciating detail

the majority now requires of the trial judiciary when denying a

member challenge.    They do not have the luxury of time afforded

appellate courts.

       While a bright-line rule excluding members on the basis of

implied bias where the trial counsel has advised the member

might, as an empirical matter, be viewed as only fair by an

objective member of the public, we rejected such a rule long

ago.    United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998)

(holding a member’s “professional relationship with the trial

counsel was not per se disqualifying”); United States v.
United States v. Peters, 14-0289/AR


Hamilton, 41 M.J. 22, 25 (C.M.A. 1994) (finding no “per se

ground for challenge” where three members had received legal

assistance from the assistant trial counsel); see also United

States v. Castillo, __ M.J. __, __ (1-2) (C.A.A.F. 2015) (Ryan,

J., concurring in the result).

     I respectfully dissent.




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