          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                    UNITED STATES

                                             v.

                       Airman First Class NICHOLAS A. FIELDS
                                United States Air Force

                                       ACM S32239

                                      24 March 2015

                                      ____ M.J. ____

         Sentence adjudged 21 April 2014 by SPCM convened at Eglin Air Force
         Base, Florida. Military Judge: Michael J. Coco (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 4 months,
         forfeiture of $1,021.00 pay per month for 4 months, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Jeffrey A. Davis.

         Appellate Counsel for the United States:      Major Roberto Ramirez and
         Gerald R. Bruce, Esquire.

                                          Before

                        MITCHELL, WEBER, and CONTOVEROS
                              Appellate Military Judges

                         PUBLISHED OPINION OF THE COURT


MITCHELL, Senior Judge:

      The appellant pled guilty to failure to obey a lawful order and wrongful use of
cocaine on divers occasions, in violation of Articles 92 and 112a, UCMJ,
10 U.S.C. § 892, 912a. A military judge sitting alone as a special court-martial sentenced
the appellant to a bad-conduct discharge, confinement for 4 months, forfeiture of
$1,021 pay per month for 4 months, and reduction to E-1. The convening authority
approved the sentence as adjudged.
        The appellant asserts the following errors: (1) the appellant’s plea to failure to
obey an order of restriction was improvident because the “ultimate offense” was breaking
restriction; (2) the appellant was subject to illegal post-trial punishment in violation of
Article 57, UCMJ, 10 U.S.C. § 857; (3) there is post-trial processing error because the
addendums to the staff judge advocate’s recommendation fail to accurately address the
legal error raised by the appellant; and (4) the appellant’s sentence is inappropriately
severe. We grant relief only on the issue of a violation of Article 57, UCMJ, and reassess
the sentence accordingly.

                                                    Background

       Pursuant to a pretrial agreement (PTA), the appellant pled guilty to divers uses of
cocaine and failure to obey an order from his commander restricting him to base except
for travel to and from medical and mental health appointments. The appellant admitted
that on at least four occasions he ingested cocaine by snorting or smoking it.

                                               Ultimate Offense Doctrine

        We review a military judge’s decision to accept a guilty plea for an abuse of
discretion, and we review questions of law arising from the guilty plea de novo.
See United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “In doing so, we
apply the substantial basis test, looking at whether there is something in the record of
trial, with regard to the factual basis or the law, that would raise a substantial question
regarding the appellant’s guilty plea.”         Id.; see also United States v. Prater,
                                   1
32 M.J. 433, 436 (C.M.A. 1991). The military judge may consider both the stipulation
of fact and his inquiry with the appellant when determining if the guilty plea is provident.
United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (citing United States v.
Whitaker, 72 M.J. 292, 293 (C.A.A.F. 2013)).

        The appellant’s First Sergeant, Master Sergeant (MSgt) JB, informed the appellant
on 17 and 18 January that his commander, Lieutenant Colonel SM, had given him an
order. The commander’s order was that the appellant was restricted to base except for
travel to and from medical appointments and mental health appointments. The appellant
understood the order and knew he had a duty to obey the order. The appellant explained
that the reason the order was given was the following: “It was basically for my safety
and because I couldn’t stop using on my own. So it was to protect me from going out and

1
  The Government argues that the appellant waived appellate review of this issue pursuant to a “waive all waivable
motions” provision in his pretrial agreement (PTA). See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).
The Government’s argument would presumably seek to have us summarily affirm guilty pleas in every case with
this PTA provision, including those in which there is a substantial basis in law or fact to question the plea. See, e.g.,
United States v. Weeks, 71 M.J. 44 (C.A.A.F. 2011) (setting aside a guilty plea when it was based on trial judge’s
erroneous view of the law). The Government’s argument would transform appellate review of the providence of a
plea into an empty ritual. See United States v. Soto, 69 M.J. 304 (C.A.A.F. 2011). We reject this argument.


                                                           2                                           ACM S32239
using [cocaine].” The appellant admitted it was a lawful order which he had a duty to
obey, and the order was explicit that he was to “[g]o to [his] treatment and come back.”
The appellant violated the order by going to a treatment appointment but then not
returning immediately to base. Instead he brought two females whom he had met to
Wal-Mart; he then escorted one of them to a friend’s house off-base, and he stayed at this
off-base residence for the evening. The civilian female returned to base with the
appellant and later informed investigators that the appellant had used cocaine the
previous evening.

       The appellant now challenges the providence of his plea to the charged offense of
violating an order when the “ultimate offense” was instead breaking restriction. Our
superior court has recently examined this issue in the context of Article 90, UCMJ,
10 U.S.C. § 890, and clarified that we are to rely solely on the standard established in the
Manual for Courts-Martial (MCM). United States v. Phillips, __ M.J. __ 14-0199/AR
(C.A.A.F. 6 January 2015).

                       Since enactment of the UCMJ, the President has
               recognized the ultimate offense doctrine as it applies to the
               offense of disobeying a superior commissioned officer under
               Article 90, UCMJ: “Disobedience of an order which has for
               its sole object the attainment of some private end, or which is
               given for the sole purpose of increasing the penalty for an
               offense which it is expected the accused may commit, is not
               punishable under [Article 90].” Manual for Courts-Martial,
               United States (MCM) ch. XXVIII, ¶ 169.b. (1951 ed.); accord
               MCM pt. IV, ¶ 14.c.(2)(a)(iv) (2012 ed.)

Phillips, slip op. at page 5.

       Phillips was an Article 90, UCMJ, case and our superior court expressly noted that
the application of the ultimate offense doctrine as applied to Article 92, UCMJ, 10 U.S.C.
§ 892, was not before them. We find the logic highly persuasive and extend the same
reasoning to Article 92, UCMJ. In describing the lawfulness of orders, Article 92,
UCMJ, refers to Article 90, UCMJ, including the explanation listed above. MCM,
Part IV, ¶ 16.c.(1)(c) (2012 ed.).

       We consider the environment in which the order was given to determine if the
“ultimate offense” doctrine applies. United States v. Landwehr, 18 M.J. 355, 357
(C.M.A. 1984). Here the appellant had voluntarily sought treatment for his cocaine
addiction and was admitted to in-patient treatment. Three days after his release from the
month-long in-patient treatment program, the appellant sought help from his unit because
he feared for his own safety and decided to turn himself into law enforcement for his drug
use. On 31 December 2013, the appellant was exhibiting signs of narcotics withdrawal


                                              3                                  ACM S32239
and admitted that he used cocaine earlier that morning, which was confirmed by
urinalysis testing. The appellant also had two additional urinalysis tests that indicated he
was using cocaine. Considering all the evidence regarding the order, to include the
circumstances surrounding the order and the purpose of the order, we conclude that the
ultimate offense doctrine is not applicable to the appellant’s case. The military judge did
not abuse his discretion in accepting the appellant’s guilty plea.

                                    Illegal Punishment

        After the sentence was announced, the first sergeant, MSgt JB, ordered the
appellant into the nearby restroom. SSgt AD was also present. MSgt JB told the
appellant that he was reduced to E-1 and that MSgt JB did not want him to be out of
uniform. MSgt JB braced himself against the appellant’s shoulder and then, using his
hand and either a key or small knife, ripped the stripes off his service dress uniform and
then off his shirt. The appellant was visibly upset when he returned to the courtroom.
Trial defense counsel immediately reported the incident to trial counsel and the staff
judge advocate. Security forces was also notified of the alleged assault. When
questioned by security forces, MSgt JB waived his Article 31, UCMJ, 10 U.S.C. § 831,
rights and admitted to this conduct with the explanation that he thought the reduction was
immediate.

       Article 57(a)(1), UCMJ, provides that a reduction in rank is effective 14 days after
the sentence is adjudged. The Government argues that there is no violation because there
is no evidence that the appellant was improperly paid at the E-1 rate for those first
14 days. The appellant cites to an unpublished decision by this court in which we
affirmed a bad-conduct discharge but set aside a reduction and hard labor without
confinement when the Government in that case failed to award him with 13 days credit
ordered by the military judge and required the immediate imposition of hard labor in
violation of Article 57(c). United States v. Adams, ACM S26350 (A.F.C.M.R. 19 July
1984) (unpub. op.). In cases involving claims of Eighth Amendment2 or Article 55,
UCMJ, 10 U.S.C. § 855, violations, “we have not only the authority, but the obligation to
question the severity of appellant’s sentence as executed.” United States v. McPherson,
72 M.J. 862, 872 (A.F. Ct. Crim. App. 2013). We do not find that the first sergeant’s
actions amounted to a violation of Article 55 or the Eighth Amendment.
Cf. United States v. Gerke, 21 M.J. 300 (C.M.A. 1985) (finding that battalion commander
who called the appellant a drug pusher unfit for service and had him transferred to
confinement in front of a unit formation did not violate Article 55). However, we find
that we have similar authority for violations of Article 57(a)(1). “A reduction carries
both the loss of military status and the incidents thereof and results in a corresponding
reduction of military pay.” Department of the Army Pamphlet 27-9, Military Judges’
Benchbook, ¶ 8-3-31 (10 September 2014). Although there is no evidence that the

2
    U.S. CONST. Amend. VIII.


                                             4                                 ACM S32239
appellant was paid at a reduced rate or reduced in rank in any official records, there is
evidence that the appellant was publicly required to wear a torn uniform from which his
rank had been forcibly removed—an intended loss of military status. Furthermore, this
was the desired outcome of the first sergeant’s actions in terms of visibly and
immediately reducing the appellant’s rank. The first sergeant’s ignorance of the law does
not excuse his actions.3 We find a violation of Article 57, UCMJ.

        Article 66(c), UCMJ, 10 U.S.C. § 866(c), provides us with the broad authority to
grant relief even without a showing of prejudice when determining what sentence “should
be approved” based on all the facts and circumstances of the case. See United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (holding that service courts have authority to
grant relief for excessive post-trial delay without showing of actual prejudice). However,
this is not an unfettered authority. “Article 66(c), UCMJ, empowers the CCAs to ‘do
justice,’ with reference to some legal standard, but does not grant the CCAs the ability to
‘grant mercy.’” United States v. Nerad, 69 M.J. 138, 146, (C.A.A.F. 2010) (quoting
United States v. Boone, 49 M.J. 187, 192 (C.A.A.F. 1998)). We conclude that the first
sergeant, while acting under the mantle of command authority, intentionally engaged in
action to prematurely punish the appellant. Pursuant to our authority under Article 66(c),
UCMJ, 10 U.S.C. § 866(c), we order a remedy that is appropriate to remove any error.
See United States v. Taylor, 47 M.J. 322, 324 (C.A.A.F. 1997). Because the error was
limited to an untimely attempt to effectuate a reduction in rank, we do not affirm that
portion of the sentence.

                                           Post-Trial Processing

        The staff judge advocate’s recommendation (SJAR) advised the convening
authority to approve the sentence as adjudged. The appellant and his defense counsel
raised legal errors in their submission about the Article 57, UCMJ, violation and the
conditions of solitary confinement. The staff judge advocate (SJA) summarized both of
these legal issues in the SJAR addendum and advised the convening authority that they
were without merit. The appellant argues that the SJA’s determination creates prejudicial
error in the post-trial processing. We disagree.

        Proper completion of post-trial processing is a question of law, which this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004)
(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). When reviewing post-trial
3
 “It is an established legal maxim that ignorance of the law is no excuse.” United States v. McLeod, 18 C.M.R. 814,
823 (A.F.B.R. 1955). Cf. Heien v. North Carolina, 135 S. Ct. 530, 539 (2014) (“The Fourth Amendment tolerates
only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable.”).
Reasonable mistakes of law are permitted to support probable cause determinations under the Fourth Amendment,
however, the Supreme Court also clarified that a mistake of law cannot support a conviction. Id. at 540 (“[T]he
government cannot impose criminal liability based on a mistaken understanding of the law.”) Likewise, the
Government or its agents should not be able to impose a premature punishment based on a mistake of law.



                                                        5                                         ACM S32239
errors, we recognize the convening authority is an appellant’s “best hope for sentence
relief.” United States v. Lee, 50 M.J. 296, 297 (C.A.A.F. 1999) (quoting United States v.
Bono, 26 M.J. 240, 243 n.3 (C.M.A. 1988)) (internal quotation marks omitted). The
convening authority, not a court of criminal appeals, is empowered to grant clemency for
equitable reasons. United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010). “Because
of the highly discretionary nature of the convening authority’s action on the sentence, we
will grant relief if an appellant presents ‘some colorable showing of possible prejudice.’”
Kho, 54 M.J. at 65 (quoting United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998));
see also United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F. 2005). The appellant can
prove a colorable showing of possible prejudice by stating what, if anything, he would
have submitted to deny, counter, or explain matters submitted by the Government.
United States v. Gilbreath, 57 M.J. 57, 61 (C.A.A.F. 2002).

       The appellant claims the SJA failed to accurately address the allegations of legal
error raised in his clemency materials. Rule for Courts-Martial (R.C.M.) 1106(d)(4)
requires the staff judge advocate to state whether corrective action on the findings or
sentence should be taken when the defense clemency submissions allege legal error.
Such response “may consist of a statement of agreement or disagreement with the matter
raised by the accused. An analysis or rationale for the staff judge advocate’s statement, if
any, concerning legal error is not required.” R.C.M. 1106(d)(4); United States v. Catrett,
55 M.J. 400, 407–08 (C.A.A.F. 2001). The addendum complied with this requirement.

       The appellant relies on United States v. Griffaw, 46 M.J. 791 (A.F. Ct. Crim. App
1997), to argue that the SJA’s advice must be accurate or else it results in a material
prejudice requiring new post-trial processing. This court stated the following in Griffaw:
“[T]he SJA must provide correct information to the convening authority. . . . [E]rroneous
advice on substantial matters of fact or law will invalidate the action when the error
prejudices the accused.” Id. at 792. In Griffaw, we set aside the convening authority’s
action and returned the case for a new SJAR because the SJA had mistakenly advised the
convening authority that a pretrial agreement sentence limitation was the same as a grant
of clemency. In the area of addressing legal errors raised by the defense, we limit
Griffaw to those times when the SJA’s assessment of the legal error is clearly erroneous
analysis or rationale contrary to well-established legal precedent. While we disagree with
the SJA’s assessment of the legal error on the illegal punishment, the SJA’s advice to the
convening authority was reasonable, and we find no legal error requiring us to return the
case for new post-trial processing. Furthermore, to the extent that the SJA’s advice in the
addendum created any prejudicial error, we have mooted any prejudice in our sentence
reassessment. Cf. United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988) (Cox, J.,
concurring) (“If a Court of Military Review intends to affirm a conviction even though an
error in the legal review has been committed, it should make a clear finding of
harmlessness to enable us to be satisfied that an accused has received not only fair
appellate review, but also complete review.”).



                                             6                                 ACM S32239
                                        Sentence Appropriateness

       The appellant’s final contention is that his punishment was overly harsh,
particularly because he received a bad-conduct discharge when other Airmen convicted
of similar offenses have not.

        In determining the appropriateness of a sentence, we are not required to engage in
comparison with specific cases “except in those rare instances in which sentence
appropriateness can be fairly determined only by reference to disparate sentences
adjudged in closely related cases.” United States v. Lacy, 50 M.J. 286, 288
(C.A.A.F. 1999) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).
The “appellant bears the burden of demonstrating that any cited cases are ‘closely
related’ to his or her case and that the sentences are ‘highly disparate.’” Id. If the
appellant satisfies his burden, the Government must then establish a rational basis for the
disparity. Id. However, even when we are not required to compare a case to other
specific cases, we use our collective knowledge in determining if a sentence is
appropriate. Ballard, 20 M.J. at 286.4 The appellant cites to the court-martial sentences
of two other Airmen, Airman JD and Technical Sergeant JZ, who were convicted of the
wrongful use of controlled substances and did not received a punitive discharge. We find
that the appellant has failed to establish that these cases are closely related.

       This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). 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.
“We assess sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offenses, the 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); see also United States v. Snelling, 14 M.J. 267, 268
(C.M.A. 1982). Although we are accorded great discretion in determining whether a
particular sentence is appropriate, we are not authorized to engage in exercises of
clemency. Nerad, 69 M.J. at 146; United States v. Healy, 26 M.J. 394, 395–96
(C.M.A. 1988).



4
                 [T]he experienced and professional military lawyers who find themselves
                 appointed as trial judges and judges on the courts of military review have a solid
                 feel for the range of punishments typically meted out in courts-martial. Indeed,
                 by the time they receive such assignments, they can scarcely help it; and we
                 have every confidence that this accumulated knowledge is an explicit or implicit
                 factor in virtually every case in which a military judge imposes sentence or a
                 court of military review assesses for sentence appropriateness.

United States v. Ballard, 20 M.J. 282, 286 (C.M.A. 1985).


                                                         7                                            ACM S32239
                        “Absent evidence to the contrary, accused’s own
                 sentence proposal is a reasonable indication of its probable
                 fairness to him.” United States v. Hendon, 6 M.J. 171, 175
                 (C.M.A. 1979) (citing United States v. Johnson,
                 41 C.M.R. 49, 50 (C.M.A. 1969)). Of course, a court-martial
                 can adjudge a sentence less than the limits in a PTA and may
                 consider sentencing factors distinct from those in front of the
                 convening authority. Id. An appellant who has been
                 prejudiced by error may be entitled to sentence relief even if
                 the adjudged sentence is less than limitation in the PTA.
                 United States v. Kinman, 25 M.J. 99 (C.M.A. 1987). We
                 recognize that the application of Hendon has been limited by
                 our Navy colleagues in United States v. Brandon,
                 33 M.J. 1033 (N.M.C.M.R. 1991), and again in United States
                 v. Payne, 1996 WL 927728, (N.M.C.M.R 1996). We have
                 previously cited Hendon and relied on its rationale.
                 See United States v. El-Amin, 38 M.J. 563 (A.F.C.M.R.
                 1993).

United States v. Cron, 73 M.J. 718, 736 n.9 (A.F. Ct. Crim. App. 2014).

       Here the appellant was convicted of multiple uses of cocaine. This included the
use of cocaine after he had completed an in-patient treatment program at the
Government’s expense. The appellant violated his commander’s order, which he
acknowledged was issued to protect him from himself, and left another treatment
program to use cocaine with a civilian female whom he then brought onto base. The
appellant received an earlier referral enlisted performance report in 2012/2013.

        We also consider the limits of the PTA that the appellant voluntarily entered into
with the convening authority. The appellant voluntarily agreed to a sentence cap that
limited confinement to no more than six months but did not prevent the convening
authority from approving a punitive discharge. We understand that a sentence within the
limits of a PTA might be inappropriately severe, but this is not the case here. We have
reviewed and considered this particular appellant, the PTA limits, the nature and
seriousness of his offenses, his record of service,5 and all matters contained in the record
of trial, including his arguments on appeal. We find the appellant’s approved sentence,
as modified, appropriate.


5
  Prosecution Exhibit 4, a record of nonjudicial punishment, is illegible. We are able to read the appellant’s
response to the Article 15. We find that the omission of a legible copy of the Article 15 is insubstantial, and the
record of trial is complete. See United States v. Henry, 53 M.J. 108, 111 (C.A.A.F. 2000). However, as substantial
omissions render a record of trial incomplete, we again remind staff judge advocates of their duty to ensure the
accuracy of the original record of trial.


                                                        8                                         ACM S32239
                                      Conclusion

       We affirm only so much of the sentence as provides for a bad-conduct discharge,
confinement for four months and forfeiture of $1,021 pay per month for four months.
The approved findings and the sentence, as reassessed and modified, are correct in law
and fact, and no error materially prejudicial to the substantial rights of the appellant
occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly,
the approved findings and sentence, as reassessed and modified, are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           9                               ACM S32239
