           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                Technical Sergeant RUDY R. RUIZ
                                     United States Air Force

                                               ACM 38752

                                             9 August 2016

         Sentence adjudged 22 August 2014 by GCM convened at Los Angeles Air
         Force Base. Military Judge: Brendon K. Tukey (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 30 days,
         forfeiture of $572 pay per month until bad-conduct discharge is executed, and
         reduction to E-2.

         Appellate Counsel for Appellant: Major Michael A. Schrama.

         Appellate Counsel for the United States: Captain Tyler B. Musselman and
         Gerald R. Bruce, Esquire.

                                                  Before

                             MAYBERRY, DUBRISKE, and BROWN
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



MAYBERRY, Judge:

       At a general court-martial composed of a military judge sitting alone, Appellant was
convicted, contrary to his pleas, of attempted violation of a lawful general regulation,
violation of a lawful general regulation, and making false official statements, in violation
of Articles 80, 92, and 107, UCMJ, 10 U.S.C. §§ 880, 892, 907.1 Appellant was found not
guilty of larceny in accordance with his pleas. The court sentenced Appellant to a bad-
conduct discharge, confinement for 30 days, forfeiture of all pay and allowances, and
reduction to E-2. The convening authority approved only forfeitures of $572 per month
until execution of the punitive discharge,2 but otherwise approved the sentence as
adjudged.

        Before us, Appellant claims: (1) Charges I and II failed to state an offense because
the underlying regulation was not punitive; (2) the post-trial processing delay warrants
relief; (3) the imposition of a bad conduct discharge is inappropriately severe;3 and (4)
Appellant’s trial defense counsel were ineffective.4 Finding no error materially prejudicial
to the substantial rights of Appellant, we affirm.

                                                 Background

        Appellant was a recruiter in Lompoc, California. He had almost 14 years of service
at the time of trial and had been a recruiter for more than four years. He was married with
four children, two of whom had special needs including autism and epilepsy. He was
repeatedly recognized as a superior recruiter, and was awarded the Gold Recruiter Badge
in 2012. Between June and November of 2013, Appellant solicited donations from 18
military members participating in the Recruiter Assistance Program (RAP)—commonly
referred to as RAPpers. Appellant offered each RAPper the opportunity to work long days,
including weekends, or make a donation to one of two charities: Alex’s Lemonade Stand
or Military Kids with Autism. In exchange for the donation, the RAPpers were not required
to perform any recruiting duties, essentially giving them two weeks off without being
charged leave.

       Appellant’s actions came to light when one of the RAPpers, Senior Airman (SrA)
AR, expressed reluctance to provide a donation, and Appellant offered him recruiting gear
(keychains, lanyards, water bottles and t-shirts) which could then be sold to raise the
money. SrA AR was uncomfortable with this and called his flight chief to see what he
should do. After speaking with the commander, the flight chief told SrA AR to go to the
Vandenberg Air Force Base (AFB) Air Force Office of Special Investigations (AFOSI)
and report Appellant’s activities. SrA AR went to AFOSI and agreed to work with them.
SrA AR returned to the recruiting office with money provided by AFOSI. Appellant
instructed him to put it in an envelope, and in return, Appellant completed SrA AR’s RAP

1
  Appellant was charged with 18 specifications under Article 92, UCMJ, 10 U.S.C. § 892, and 15 specifications under
Article 107, UCMJ, 10 U.S.C. § 907. He was convicted of 15 specifications under Article 92, UCMJ, and 13
specifications under Article 107, UCMJ. For sentencing purposes, the military judge merged the specifications under
each Charge into a single specification, alleging a violation on divers occasions.
2
  Action was taken after Appellant was released from confinement.
3
  Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
4
  Appellant raises this issue pursuant to Grostefon, 12 M.J. 431.


                                                     2                                                ACM 38752
paperwork. Appellant told SrA AR to tell everyone he did good things on RAP and had a
good time.

       AFOSI ultimately ran an undercover operation where a special agent, wearing a
recording device, reported to Appellant’s office to perform RAP duties. After the
undercover agent arrived, Appellant told him that he could have the next four days off if
he would go pick up video games from someone who was selling them. He did so. The
next week, the undercover agent went back to the recruiting office and said he would like
more time off. Appellant told him that if he made a small donation to charity, he could
have the rest of the week off. The special agent left the office and came back with $100.
Appellant told him to put it in an envelope, write his name on it and choose from two
charities. This incident was the basis for the attempt charge.

       After the undercover operation, AFOSI briefed Appellant’s commander and the
investigation expanded to other individuals who had performed RAP duties with Appellant.
More than 40 members were contacted, with 15-20 of them indicating they had been
offered time off in exchange for money or video games.

       Appellant prepared required After Action Reports (AAR) for each of the RAPpers.
These reports documented the actions purportedly performed by the RAPpers. These
reports were the basis of the false official statement charge. Appellant was also charged
with 15 specifications of larceny based on the money provided by the RAPpers to him that
had not been donated to any charity when charges were preferred.

       Additional facts are discussed as necessary for each assignment of error.

              Is Air Force Recruiting Service Instruction 36-2001 Punitive?

       At trial, Appellant filed a motion to dismiss Charges I and II for failure to state an
offense. Appellant asserted Air Force Recruiting Service Instruction (AFRSI) 36-2001,
Recruiting Procedures for the Air Force, (1 August 2012), is not enforceable under Article
92(1), UCMJ. He argued this was because its purpose is not to regulate the conduct of
servicemembers and it is not clearly punitive in nature due to its noncompliance with an
instruction issued by a superior authority. On appeal, Appellant argues that his conviction
as to Charge I and its specification and the 15 specifications of Charge II was legally
insufficient because the AFRSI is not punitive since it does not comply with Air Force
Instruction (AFI) 33-360, Publications and Forms Management, (18 May 2006)
(incorporating changes through 12 July 2007).

      We review issues of legal sufficiency de novo. United States v. Washington,
57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the evidence is
‘whether, considering the evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found all the essential elements beyond a reasonable


                                          3                                        ACM 38752
doubt.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting
United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). The term reasonable doubt “does
not mean that the evidence must be free of conflict.” United States v. Lips, 22 M.J. 679,
684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are bound to
draw every reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001). Our assessment of legal
sufficiency is limited to evidence produced at trial. United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993).

        We must determine whether violations of the applicable provisions of AFRSI 36-
2001 may be punished under Article 92(1), UCMJ. “[I]f a regulation does not contain
language establishing that it is a punitive regulation, a violation of the regulation is not a
criminal offense under Article 92(1).” United States v. Shavrnoch, 49 M.J. 334, 336
(C.A.A.F. 1998). Generally, the punitive nature of a regulation is ascertained by examining
the regulation as a whole to see if it “regulate[s] conduct of individual members and that
its direct application of sanctions for its violation is self-evident.” United States v.
Blanchard, 19 M.J. 196, 197 (C.M.A. 1985).

      Under that test, we find AFRSI 36-2001 to be enforceable under Article 92(1),
UCMJ. We also find that AFRSI 36-2001 does meet all requirements of AFI 33-360.
Accordingly, the convictions on Charge I and II are legally sufficient.
       Appellant relies on the fact that AFI 33-360 was in force at the time AFRSI 36-2001
was published and, at the time of the alleged offenses, AFI 33-360 stated, “compliance
with this publication is mandatory.” Section 2.17, entitled “Specific Legal Requirements,”
describes the requirements for a punitive regulation, in pertinent part:

              The opening paragraph must clearly specify which parts of a
              publication contain mandatory provisions and prohibitions
              enforceable against the individual. While such language
              standing alone in the opening paragraph does not make a
              publication punitive, it becomes punitive when combined with
              punitive language in the body of the publication . . . . The
              opening paragraph must say that failure to observe the
              prohibitions and mandatory provisions in the publication is a
              violation of Article 92 of the UCMJ, or that noncompliance
              may result in punishment under Article 92 of the UCMJ.

              . . . Use language that expresses the mandatory nature of the
              provisions, such as “will,” “will not,” “shall,” “shall not,”
              “must,” “must not,” etc. Paragraphs containing mandatory
              provisions or prohibitions must state that a failure to obey is a
              violation of Article 92 of the UCMJ. This statement should


                                           4                                       ACM 38752
              accompany each mandatory provision or prohibition, or may,
              if clear, refer to a series of mandatory provisions or
              prohibitions listed within a specific paragraph.

       In promulgating AFI 33-360 with these specific procedural requirements, the
Secretary of the Air Force’s intent was made explicit: to be punitive, a publication must
include the “failure to obey” language in both the opening paragraph and the applicable
substantive provisions.

        In a published decision, this court previously affirmed the general punitive nature
of Air Education and Training Command Instruction (AETCI) 36-2909, Professional and
Unprofessional Relationships, (2 March 2007) which similarly dealt with behavioral
expectations for recruiters and Airmen participating in the Recruiter Assistance Program.
See United States v. LeBlanc, 74 M.J. 650 (A.F. Ct. Crim. App. 2015). Appellant argues
that the decision of this court in LeBlanc was wrongly decided, but Appellant’s assessment
of the LeBlanc holding is not dispositive for a number of reasons. First and foremost, the
regulation at issue in LeBlanc was not AFRSI 36-2001. See id. at 653. Consequently, while
the analysis of this court in LeBlanc is persuasive, our review must address the specific
verbiage of AFRSI 36-2001.

       Appellant cites part of paragraph 2.17.1.4 in AFI 33-360, which requires each
paragraph containing mandatory provisions to state a failure to obey is a violation of Article
92, UCMJ. However, paragraph 2.17.1.4 goes on to state that “[t]his statement should
accompany each mandatory provision or prohibition, or may, if clear, refer to a series of
mandatory provisions or prohibitions listed within a specific paragraph.”

       Here, AFRSI 36-2001’s opening paragraph does clearly specify which parts of the
instruction contain mandatory provisions and prohibitions enforceable against the
individual. The introductory section of AFRSI 36-2001 directs that “[f]ailure to observe
the prohibitions and mandatory provisions in paragraphs 1.1 through 1.8.4 may result in
punishment under Article 92 or other articles of the Uniform Code of Military Justice
(UCMJ).” Additionally, Chapter 1, entitled “Professional Conduct Standards and
Management Guidance,” paragraph 1.1.2, repeats the language from the introductory
paragraph stating, “Recruiting personnel who violate any prohibition in paragraphs 1.2
through 1.8 of this section (or any subparagraphs there under) are subject to disciplinary
action under the UCMJ, Article 92, as well as any other applicable article of the UCMJ.”
Appellant was charged with violating paragraph 1.3.13, which clearly falls within the series
of listed mandatory provisions and prohibitions specifically enumerated as being
punishable under Article 92(1), UCMJ. As such, Appellant’s claim on appeal must fail.




                                           5                                       ACM 38752
                                 Sentence Appropriateness

       Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant
alleges that a bad-conduct discharge is inappropriately severe for the offenses of which he
was convicted. We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006); United States v. Baier, 60 M.J. 382, 383–84 (C.A.A.F. 2005).
We “may affirm only such findings of guilty and the sentence or such part or amount of
the sentence, as [we find] correct in law and fact and determine[], on the basis of the entire
record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess
sentence appropriateness by considering [Appellant], the nature and seriousness of the
offenses, [Appellant’s] record of service, and all matters contained in the record of trial.”
United States v. Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35
(C.A.A.F. 2007) (citing United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)).

       While we have a great deal of discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clemency. United
States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy, 26 M.J. 394,
395–96 (C.M.A. 1988). The maximum imposable sentence in this case was a dishonorable
discharge, confinement for 9 years, forfeiture of all pay and allowances, and reduction to
E-1. The approved sentence of a bad-conduct discharge, 30 days confinement, forfeiture
of $572 per month until execution of the punitive discharge, and reduction to E-2 was
clearly within the discretion of the convening authority.

       Appellant argues that the sentence imposed bears no reasonable relationship to the
offenses. We disagree. Appellant was entrusted with newly minted Airmen, fresh from
technical training who had been indoctrinated with the core value of integrity and respect
for superiors. His systematic violation of a lawful general regulation impacted not only
himself, but also these Airmen. While it is true that he ultimately made donations in their
names to charities, his scheme, of allowing RAPpers to buy their way out of performing
RAP duties and then falsifying their records to ensure his ruse was not exposed, calls into
question his rehabilitative potential.

       We have given individualized consideration to this Appellant, his conduct, his
military career and accomplishments, and the other relevant matters within the record of
trial. We conclude that the approved sentence is not inappropriately severe.

                             Ineffective Assistance of Counsel

        Appellant, pursuant to Grostefon, asserts that his counsel were ineffective for: (1)
failing to call two witnesses whom he claims were the “most important” to his defense and
“would have testified that leadership ordered them to falsify AARs” thereby refuting the
false official statement allegations; (2) not using the letters he sent to each RAPper after
the Article 32, UCMJ, hearing explaining his actions and returning the amount of their


                                           6                                       ACM 38752
donation, thereby “telling his side of the story without having to take the stand;” (3) not
challenging documents which he now asserts were forged; and (4) not informing the court
that the prosecution was “playing dirty” to get the outcome they wanted. Our reasoning on
the first two allegations is discussed below. We summarily reject the remaining two issues
which require no additional analysis or relief. See United States v. Matias, 25 M.J. 356,
363 (C.M.A. 1987).

       In reviewing claims of ineffective assistance of counsel, “[we] look[] at the
questions of deficient performance and prejudice de novo.” United States v. Datavs, 71
M.J. 420, 424 (C.A.A.F. 2012) (quoting United States v. Gutierrez, 66 M.J. 329, 330–31,
(C.A.A.F. 2008)).

       To establish a claim of 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.” United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F.
2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the first prong,
the appellant has the burden to show that his “counsel’s performance fell below an
objective standard of reasonableness—that counsel was not functioning as counsel within
the meaning of the Sixth Amendment.” United States v. Edmond, 63 M.J. 343, 351
(C.A.A.F. 2006). The question is, therefore, whether “the level of advocacy fall[s]
measurably below the performance ordinarily expected of fallible lawyers.” United States
v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006) (citing United States v. Polk, 32 M.J. 150, 153
(C.M.A. 1991)). Under the second prong, the deficient performance must prejudice the
accused through errors “so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (quoting
Strickland, 466 U.S. at 687). Counsel is presumed competent until proven otherwise.
Strickland, 466 U.S. at 689–90.

       This court ordered, and trial defense counsel submitted, affidavits explaining their
representational efforts and trial strategy. We use the framework of United States v. Ginn,
47 M.J. 236 (C.A.A.F. 1997) to determine whether a post-trial factfinding hearing is
necessary to resolve “a post-trial claim that is framed by conflicting affidavits.” Because
we find Appellant’s “affidavit is factually adequate on its face but the appellate filings and
the record as a whole ‘compellingly demonstrate’ the improbability of those facts, [this]
[c]ourt may discount those factual assertions and decide the legal issue.” Ginn, 47 M.J at
248. There is no need to remand the case to the trial level for a DuBay proceeding. Id.;
see also United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).

       With regard to not calling “the most important” witnesses, trial defense counsel’s
affidavits and the notes of their interview of those witnesses are compelling. Both of the
witnesses were interviewed by counsel. Neither of them had the depth of knowledge
regarding the realities of the recruiting world and one of them had credibility issues.
Furthermore, neither of them informed counsel they had ever been instructed to falsify


                                           7                                       ACM 38752
documents. Counsel called current and former recruiters to successfully introduce
evidence of the common practice to exaggerate on AARs by crediting RAPpers with any
recruiting successes that took place during their tour and the pressure to submit the AARs
prior to the completion of the RAPpers’ tour. However, there was no strategy to overcome
the testimony of the RAPpers that they were given time off as a result of their donations.

       Appellant alleges that his trial defense counsel did not use the letters he sent to each
RAPper returning their “donation,” information he characterizes as “evidence the
prosecution did not want to come in because it would benefit him.” Trial defense counsel
accurately identified that the letters were inadmissible hearsay and contained significantly
incriminating admissions of his wrongdoing.5 The trial defense counsel’s affidavit asserts
Appellant made the decision not to testify with the full knowledge that the letters were not
admissible as a “substitute” for his testimony. Trial defense counsel did effectively cross-
examine each of the RAPpers, eliciting the fact that Appellant returned the amount of their
“donations” to them and informed them that he had donated the same amount to the
respective charity, without having to introduce the letters. This evidence was essential to
the finding of not guilty on the 15 specifications of larceny.

        After considering the totality of the evidence presented at trial, we find Appellant
failed to meet his burden of demonstrating that his defense counsel’s conduct was deficient
or otherwise resulted in prejudice. See Green, 68 M.J. at 361. The trial defense counsel
made tactical decisions regarding the appropriate strategy they believed would be most
successful in light of the totality of the evidence, including admissions by Appellant. This
was an “objectively reasonable choice in strategy from the alternatives available at the
time” to the defense. United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001). We
decline to second-guess those reasonable decisions made at trial by defense counsel. See
United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006). In light of these conclusions
and applying the applicable standards, we find Appellant has failed to meet his burden of
demonstrating that any deficiency in his defense counsel’s conduct resulted in prejudice.

                                              Post-Trial Processing Delay

       Appellant asserts this court should grant him meaningful relief in light of the 57
days that elapsed between the convening authority’s action and the case being docketed
with this court. Under United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), courts


5
  After the Article 32, UCMJ, 10 U.S.C. § 832 hearing, at the suggestion of Appellant’s original defense counsel,
Appellant sent a letter to each of the RAPpers who were named in the specifications. The letter spelled out the fact
that an Air Force Regulation prohibits recruiters from soliciting donations from recruiting assistants and that he knew
it was wrong but he was so focused on the good that he believed he was doing that he proceeded anyway. He also
noted a recruiter is never going to hold it against a RAPper that they were not asked to do recruiting duties so that they
do not get credit for RAP, expressly distinguishing the AARs he prepared from intentionally submitting false
statements to deceive his supervision. Appellant goes on to say that his heart was in the right place, but his method
was wrong, and that he returned the amount of the donation to each of them.


                                                        8                                                   ACM 38752
apply a presumption of unreasonable delay “where the record of trial is not docketed by
the service Court of Criminal Appeals within thirty days of the convening authority’s
action.” Appellant does not assert any prejudice, and we independently find Appellant
suffered no prejudice from the delay that would authorize Moreno relief. Appellant instead
requests the court to grant relief under United States v. Tardif, 57 M.J. 219, 223–24
(C.A.A.F. 2002). We disagree that Appellant is entitled to Tardif relief based upon the
delay between action and docketing with this court.


        Under Article 66(c), UCMJ, this court is empowered “to grant relief for excessive
post-trial delay without a showing of ‘actual prejudice’ within the meaning of Article 59(a),
if it deems relief appropriate under the circumstances.” Id. at 224 (citing United States v.
Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000)). In United States v. Toohey, 63
M.J. 353, 362 (C.A.A.F. 2006), our superior court held that a service court may grant relief
even when the delay was not “most extraordinary.” The court held, “The essential inquiry
remains appropriateness in light of all circumstances, and no single predicate criteria of
‘most extraordinary’ should be erected to foreclose application of Article 66(c), UCMJ,
consideration or relief.” Id.

        This court set out a non-exhaustive list of factors we consider when evaluating the
appropriateness of Tardif relief in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim.
App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016). Those factors include how long the delay
exceeded appellate review standards, the reasons noted by the Government for the delay,
whether the Government acted with bad faith or gross indifference, evidence of
institutional neglect, harm to the appellant or the institution, the “goals of justice and good
order and discipline,” and, finally, whether the court can provide any meaningful relief
given the passage of time. Id. No single factor is dispositive, and we may consider other
factors as appropriate. Id.

       The Government attributes the delay to the difficulty encountered in serving the
action and excess leave paperwork on Appellant6 as well as the discovery of post-trial
errors by both the legal office and higher headquarters requiring corrective actions. In
support of this claim, the Government submitted an affidavit from a base-level judge
advocate who explained the circumstances surrounding the overall delay in post-trial
processing of the case.

        While we find the 57 days between action and docketing to constitute a
presumptively unreasonable delay, it does not merit sentencing relief in this case. The legal
office’s intensive review of the 11-volume Record of Trial took 22 days. While we find
that the overall duration of the post-trial processing does not impair the public’s perception

6
  Appellant was not assigned to Los Angeles Air Force Base where the case was tried. He was geographically
separated not only from the base, but from his parent command as well.


                                                9                                             ACM 38752
of the military justice system or exhibit bad faith or gross negligence, we do believe the
intensive review could have started before action was taken. We find the majority of
factors employed when considering Tardif relief weigh in favor of the Government in this
particular case.

                                       Conclusion

       The approved findings and sentence are correct in law and fact and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are
AFFIRMED.




             FOR THE COURT



             LEAH M. CALAHAN
             Clerk of the Court




                                         10                                     ACM 38752
