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

                             UNITED STATES, Appellee
                                         v.
                      Specialist JUVENTINO TOVARCHAVEZ
                           United States Army, Appellant

                                      ARMY 20150250

                 Headquarters, 8th Theater Sustainment Command
                        Gregory A. Gross, Military Judge
  Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial and recommendation)
Lieutenant Colonel LaJohnne A.W. Morris, Acting Staff Judge Advocate (addendum)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Ryan Yoder, JA;
Major Brian J. Sullivan, JA (on brief); Captain Ryan Yoder, JA; Major Brian J.
Sullivan, JA (reply brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain
Ryan Yoder, JA; Major Brian J. Sullivan, JA (on brief in response to specified
issues); Lieutenant Colonel Carrier, JA; Captain Cody Cheek, JA; Major Brian J.
Sullivan, JA (reply brief to specified issues).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta
Smith, JA; Captain Christopher A. Clausen, JA (on brief); Major Michael E. Korte,
JA; Captain Christopher A. Clausen, JA (on brief in response to specified issues).


                                     7 September 2017
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      Charged with sexually assaulting his fellow soldier Specialist (SPC) JR on
two separate occasions, an enlisted panel of a general court-martial convicted
TOVARCHAVEZ—ARMY 20150250

appellant only of the latter instance. 1 Appellant collaterally attacks his conviction
and claims his counsel were ineffective at trial. 2 Because the affidavits submitted by
the parties contain material differences in fact that we cannot resolve on appeal, we
remand the case for a hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967). Appellant also raises two assignments of legal error
directly attacking the findings. Both merit discussion, but not relief.

      The case is before us for review under Article 66, UCMJ. The convening
authority approved the adjudged sentence to a dishonorable discharge, confinement
for two years, total forfeiture of pay and allowances, and reduction to E-1.

                              LAW AND DISCUSSION

                         A. Ineffective Assistance of Counsel

       Appellant alleges his defense counsel were deficient in cross-examining SPC
JR and that this deficiency resulted in the panel finding him guilty. Appellant
specifically asserts, as part of the assigned error, that the civilian defense counsel
(CDC) even admitted his ineffectiveness. The government disagrees.

            1. May this court consider unsworn unauthenticated matter?

      Appellant relies on a printed email signed by “Don” from
520508[####]@yzwplx.com that was included in appellant’s Rules for Courts-
Martial [hereinafter R.C.M.] 1105 matters. Appellant asserts the email is from
appellant’s civilian defense counsel to appellant’s military defense counsel. The
date on the email indicates it was sent shortly after trial.


1
  Appellant was charged with two specifications of sexual assault in violation of
Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012 & Supp. I
2014) [hereinafter UCMJ].
2
   Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
asserts the evidence is factually and legally insufficient to sustain a conviction. We
disagree. Appellant also asks us to consider the issues of post-trial delay and
ineffective assistance of counsel raised in his post-trial matters. We find the post-
trial delay in this case did not rise to the level of a due process violation and does
not warrant relief. Appellant’s ineffective assistance of counsel claims raised in his
post-trial matters overlap with his assignment of error and sworn declaration. While
we specifically address several of these claims, the Dubay court may consider all the
factual and legal bases for appellant’s claims of ineffective assistance of counsel
upon remand.


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      The substance of the email reads in its entirety as follows:

             [M], re Tovar appeal: I screwed up crossing CW. 3 I, alone
             was ineffective. Let’s talk how best to present issues on
             appeal, including pretrial issues. Even though I think I
             came out on top on all pretrial issues, my methodology
             can help lay the foundation for ineffective assistance
             crossing CW and reversal. Let’s talk [M]onday. Don’t
             want to drag you into it, but [I] lost respect for the
             military 40 years ago, so I’m not concerned with reversal
             for ineffective assistance. FYI, not sour grapes, I received
             an honorable discharge at 21, 4 years service, E5. I served
             very honorably, but what I witnessed was a disgrace. My
             bad for not being timely prepared. I believed battle
             stations were [T]uesday, not [M]onday.

       Appellant also asks us to consider an unsworn memorandum for record (MFR)
by appellant’s post-trial defense counsel summarizing a conversation with the
civilian defense counsel. (Appellant appears to have been assigned new post-trial
counsel). The MFR recounts a conversation between military counsel and civilian
defense counsel that occurred two to three months prior to the date of the MFR. The
substantive paragraphs of the MFR are as follows:

             2. During this conversation [the CDC] told me he was
             ineffective in representing PVT Tovar-Chavez because he
             failed to cross[-]examine the victim effectively. He went
             on to say it was his first military trial and he did not
             realize the victim would take the stand the first day. As a
             result, he did not have any notes from her Article 32
             testimony with him and was completely unprepared to
             proceed. Additionally, he did not have the Article 32
             testimony transcribed.

             3. He did not ask the Military Judge for a delay.




3
  In his brief, appellant notes that “CW” are not the initials of the victim or any
other witness in the case. Appellant suggests that this misnaming of the victim is
further evidence that the CDC was unprepared for trial. Given the context, we are
certain that CW is an abbreviation for “complaining witness.” Even in his affidavit
to this court submitted on appeal, the CDC continues to use “CW” to refer to the
victim.
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       Both parties on appeal also ask us to consider the audio recording of the
Article 32, UCMJ, preliminary hearing. Presumably, this is a reference to a CD
included in the allied papers labeled “US v. Tovarchavez I.O. copy.” No one has
authenticated the audio recording or claimed that it is an accurate and complete
recording of the hearing.

       In resolving the issue of ineffective assistance of counsel presently before this
court, we note that both parties ask us to rely on unauthenticated matter that is
attached to the record of trial. That is, each party asks us to assume the authenticity
of matter that, if it had been admitted at trial, would require at least some
foundation. Indeed, as the Article 32, UCMJ, hearing occurred before the military
judge was detailed to the case, and the R.C.M. 1105 matters were submitted after
authentication, the military judge likely could not (even if asked) authenticate that
such matters “accurately report[] the proceedings.” R.C.M. 1104(a)(1). The
military judge did not “preside” over a proceeding in which these matters were
considered. R.C.M. 1104(a)(2). The parties on appeal have not stipulated to the
authenticity of the documents. Further, neither party on appeal filed a motion for us
to consider the documents.

        In United States v. Cade, 75 M.J. 923, 928 (Army Ct. Crim. App. 2016) we
defined what is the “record of trial on appeal.” We found the President had
answered this question when he defined the “contents” of the record of trial in
R.C.M. 1103(b)(2). Id. Allied documents and other matter “attached” to the record
of trial are not part of the record of trial. Id.; See R.C.M. 1103(b)(3). Neither the
military judge nor anyone else has certified or authenticated matters “attached” to
the record as being accurate. See R.C.M. 1104. In Cade, we required that matter
from outside the record of trial must be sworn by someone with personal knowledge.
75 M.J. at 930.

        The problem with considering unsworn unauthenticated matter that was never
subjected to adversarial testing should be obvious. Both parties (and recently crime
victims) have broad authority to unilaterally attach matters to the record of trial (the
accused in his submission of R.C.M. 1105 matters and the government in assembling
the record and determining which allied papers to include). See R.C.M. 1103(b)(1).
The Military Rules of Evidence do not–in the main–apply to submission of matters
at Article 32, UCMJ, hearings or in post-trial. See Military Rule of Evidence 1101.
Absent a stipulation by the parties, matter submitted to the court for consideration
that is not part of the authenticated record of trial should be accompanied by a sworn
declaration that the matter is what a party says it is.

      Confusion on this issue perhaps stems from the fact that this court does
consider post-trial matters in determining the appropriateness of the sentence. Our
superior court has clearly said so. See United States v. Boone, 49 M.J. 187, 192
(C.A.A.F. 1998). To forestall needless motion practice, our local rules allow for an

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TOVARCHAVEZ—ARMY 20150250

appellant to request in the appellant’s brief that we consider the post-trial
submissions. However, our sentence appropriateness review is a separate endeavor
from our determination of whether there was legal or factual error in the trial. “It is
inappropriate to base an appellate opinion on assertions dehors the record.” United
States v. Matthews, 68 M.J. 29, 41 (C.A.A.F. 2009) (citing United States v. Crouch,
566 F.2d 1311, 1316 (5th Cir. 1978) (internal ellipses omitted)). For example, an
appellant could rightly cry foul if we were to affirm a finding as correct in law
because (at least in part) of a factual assertion made in a crime victim’s submission
under R.C.M. 1105A.

       However, Boone itself distinguishes between Courts of Criminal Appeals’
review of sentences as being appropriate and determinations as to whether the
findings and sentence are correct in law and fact. 49 M.J. at 193. The Court of
Appeals for the Armed Forces (CAAF) stated that “[w]e have recognized that there
are legitimate and salutary reasons for the now-Court of Criminal Appeals to have
the discretion to obtain evidence by affidavit, testimony, stipulation, or a factfinding
hearing, as it deems appropriate.” Id. Except for a stipulation (which requires
agreement by both parties), at each instance listed by the CAAF the matter appears
to be coming to the court by way of oath or sworn declaration.

       Thus, our superior court has not required post-trial hearings to resolve
conflicting accounts created by unsworn submissions. See United States v. Lofton,
69 M.J. 386, 391 (C.A.A.F. 2011) (convening authority not required to order post-
trial hearings based on unsworn unsubstantiated statements).

       Likewise, while we do not doubt the integrity of counsel, 4 our superior court
has made it clear that we cannot consider court filings to be the equivalent of sworn
declarations. United States v. Lewis, 42 M.J. 1, 4 (C.A.A.F. 1995) (“The question
remains whether the Army court erred by treating defense counsel’s motion as the
“functional equivalent” of an affidavit. We hold that it was error . . . .”). That is,
even assuming that appellate counsel had personally verified in their briefs that the
allied papers they wish us to consider are what they say they are, we cannot treat a
brief as if it were an affidavit.

      Normally, we need not remand for factfinding based on conflicts created by
an unsworn unauthenticated document. See United States v. Gunderman, 67 M.J.


4
  Here, this is not merely a technicality as the CDC appears to dispute the accuracy
of some of the words attributed to him in the R.C.M. 1105 matters – at least in part.
The government submitted a sworn affidavit from the CDC. The CDC stated that the
matter quoted in appellant’s brief was not a verbatim recitation of what he had said.
That is, to some greater or lesser extent he appears to dispute the accuracy of the
words attributed to him in the email or the MFR.

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683 (Army Ct. Crim. App. 2009). However, for unrelated reasons discussed below,
we remand this case for factfinding. Accordingly, while we have significant
concerns that the parties view the record on appeal differently than we do, for
reasons of judicial economy it is best to dispose of these concerns by wrapping them
into a DuBay hearing where these issues can be addressed by the trial court.

2. Was counsel ineffective for failing to cross-examine SPC JR on prior statements?

      Setting aside the issues raised by appellant in reliance on the unsworn
matters, appellant also submitted a sworn personal affidavit. In the affidavit,
appellant asserts he had three post-assault conversations with SPC JR in which she
made exculpating statements.

      First, appellant asserts that the day after the offense of which he stands
convicted he had a Facebook conversation with SPC JR. He asserts that in the
conversation SPC JR affirmatively stated she was not upset by appellant’s conduct.
Rather, she stated she was upset because she had cheated on her boyfriend.
Appellant states he told his defense counsel about this conversation but his counsel
“never sought a copy of this online conversation from me, from SPC JR, or from
Facebook directly.”

       Appellant’s counsel responds that the conversation in question would have
“corroborated [SPC JR’s] allegations of rape and would not have been prudent to
introduce into the trial.” Although unstated directly, we infer from this statement
that the CDC had discussed the Facebook exchange with appellant. However, and
citing to his trial notes, the CDC averred that his pretrial discovery found that the
Facebook conversation had been deleted. He also disagrees with the substance of
the conversation and states that the panel would have inferred rape from SPC JR’s
statement that she was upset.

      The affidavits both agree that appellant and his counsel discussed the
Facebook conversation. The CDC also agrees with appellant’s assertions that he had
not expected to cross-examine SPC JR on the first day of trial. The affidavits part
ways on 1) whether the CDC attempted to get a copy of the Facebook conversation;
2) whether the conversation was deleted; and 3) what was said in the Facebook
conversation.

       We are not allowed to make credibility determinations on the basis of
conflicting affidavits when resolving collateral claims of ineffective assistance of
counsel. United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997).

       In Ginn, the CAAF outlined five principles to guide this court when to order a
factfinding hearing. Id. at 248. Most on point is the first, which stated that “if the
facts alleged in the affidavit allege an error that would not result in relief even if

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any factual dispute were resolved in appellant’s favor, the claim may be rejected on
that basis.” Id.

       Here, we cannot determine one way or the other whether, assuming
appellant’s factual assertions are true, appellant received effective assistance of
counsel. Accordingly, a factfinding hearing is necessary. To prevent extended
appellate process, to ensure appellant’s claims of error are given adequate
consideration, and for reasons of judicial economy, we direct a DuBay hearing to
make appropriate factual and legal determinations on appellant’s claim of ineffective
assistance of counsel generally. That is, while this one dispute regarding a
Facebook conversation is what necessitates a factfinding hearing, the DuBay court
may consider all the factual and legal bases for appellant’s claims of ineffective
assistance of counsel.

                                 B. Mistake of Fact

      Appellant asked the panel for an instruction on the defense of mistake of fact.
The military judge denied the request. Accordingly, any error is preserved for
appeal.

       A military judge has an affirmative duty to instruct on special defenses
reasonably raised by the evidence. R.C.M. 920(e)(3). “The test for determining
whether an affirmative defense of mistake of fact has been raised is whether the
record contains some evidence of an honest and reasonable mistake to which the
members could have attached credit if they had so desired.” United States v.
Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). Put differently, an instruction on a
defense is not required if no reasonable panel member could find the defense
applicable. United States v. Schumacher, 70 M.J. 387, 389-90 (C.A.A.F. 2011)
(stating that the test is similar to the test for legal sufficiency).

        After making verbal and non-verbal rejections of appellant’s advances SPC JR
testified to an aggressive struggle on her bed. As appellant tried to pull SPC JR’s
sweat pants off, SPC JR pulled them back up. This continued for some time, until
appellant overpowered SPC JR. He then assaulted her by putting his penis in her
vagina. When done, appellant refused to get off SPC JR until she kissed him.

       Appellant did not testify. Accordingly, the only evidence regarding the
assault came from SPC JR. There were no “mixed messages” from which a mistake
of fact could occur. See United States v. DiPaola, 67 M.J. 98, 102 (C.A.A.F. 2008).
There is no evidence to which the members could have attached credit that there was
a reasonable mistake of fact as to consent. The assault described by SPC JR was, in
every which way, objectively non-consensual.



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       Additionally, we find no evidence appellant honestly possessed an innocent
state of mind. We recently addressed this issue in United States v. Kelly, where we
said:

             An accused is not required to testify to establish a mistake
             of fact defense. United States v. Jones, 49 M.J. 85, 91
             (C.A.A.F. 1999). However, to warrant an instruction on
             the mistake of fact defense there must be “some evidence
             of an honest and reasonable mistake to which the members
             could have attached credit if they had so desired.” United
             States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003).

             In other words, there is no per se requirement an accused
             testify to establish a mistake of fact defense, but evidence
             the accused honestly and reasonably believed the victim
             had consented must come from somewhere. In many
             cases, the only source of admissible evidence about the
             accused’s subjective belief the victim consented may well
             be from the accused himself.

  M.J.    , 2017 CCA LEXIS 453, at *30-31 (Army Ct. Crim. App. 5 Jul. 2017).

       To be clear, we agree with appellant that there need not be direct evidence of
an honest belief. Just as the government often proves an accused’s intent to commit
an offense by inference, the defense can establish some evidence of an honest
mistake of fact to consent by inference. See Dep’t of Army, Pam 27-9, Legal
Services: Military Judges’ Benchbook, para. 7-3, n. 2 (10 Sept. 2014). Here,
appellant points us to numerous pre-assault interactions between SPC JR and
appellant, to include the conduct that was charged, but of which appellant was
acquitted. Looking at the evidence in a light most favorable to appellant, one could
infer that on the day of the assault appellant went to SPC JR’s barracks room
honestly believing they might engage in consensual intercourse. However, once in
the room and being rebuffed both verbally and non-verbally, the reasonableness of
the inference disappears. That is, as the evidence was that SPC JR manifestly
rejected appellant’s advances, at the time of the offense there was no evidence that
appellant honestly believed she was consenting or that such a belief would be
reasonable.

                              C. United States v. Hills

      The military judge gave the panel in this case an instruction that was for all
substantive purposes identical to the instruction that the CAAF found to be error in
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). However, although discussed


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more than once, trial defense counsel offered no objection to the instruction and
ultimately stated he had “no objection” to the instruction.

       We specified the issue of whether appellant forfeited or waived any objection
to the instructions when he stated he had no objection to the instruction he now
challenges on appeal. In United States v. Hoffman, we determined a statement of
“no objection” to instructions that are challenged on appeal constitutes an
affirmative waiver of the issue.     M.J.    , 2017 CCA LEXIS 425, at *15 (Army Ct.
Crim. App. 27 Jun. 2017). We cited the Fourth Circuit in United States v. Smith, for
the proposition that a statement of “no objection” is an “intentional relinquishment
or abandonment of a known right.” No. 97-4904, 1998 U.S. App. LEXIS 22673, at
*3-4 (4th Cir. Sep. 16, 1998). Citing almost every circuit court of appeals we stated
that “[a]bsent evidence to the contrary, we presume that counsel are competent under
Strickland v. Washington, 466 U.S. 668, 690 (1984), thus defense counsel stating
that he or she has “no objection” is a purposeful decision.” Hoffman,      M.J.   ,
2017 CCA LEXIS 425, at *15.

       This case is perhaps distinguishable from Hoffman. Hoffman involved several
additional opportunities for the accused to object to the errant instruction, to include
written motions practice. Id. at *18-20. Our decision in Hoffman was conditioned
on that being a case “where appellant ‘was fully aware of the [issue], and he had
numerous opportunities to contest its admission and use.’” Id. (citing United States
v. Swift, 76 M.J. 210, 217 (C.A.A.F. 2017)).

       However, we need not decide whether the issue was waived because even if
the issue was not waived we still would not find plain error. Appellant has not met
his burden of establishing material prejudice to a substantial right. United States v.
Paige, 67 M.J. 442, 449 (C.A.A.F. 2009) (To establish plain error, appellant must
show: (1) an error was committed; (2) the error was plain, or clear, or obvious; and
(3) the error resulted in material prejudice to substantial rights).

       Appellant argues that because any error violated appellant’s presumption of
innocence and right to be convicted only by proof beyond a reasonable doubt, the
error materially prejudiced appellant’s substantial rights. The first two subparts of
appellant’s brief on prejudice address the gravity of the error.

       In our view, this misunderstands our prejudice analysis. A prejudice analysis
is separate from the finding of error. As the Supreme Court stated in Puckett v.
United States:

             Any trial error can be said to impair substantial rights if
             the harm is defined as “being convicted at a trial tainted
             with [fill-in-the-blank] error.” Nor does the fact that there
             is a “protected liberty interest” at stake render this case

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             different. That interest is always at stake in criminal
             cases. Eliminating the third plain-error prong through
             semantics makes a nullity of Olano’s instruction that a
             defendant normally “must make a specific showing of
             prejudice” in order to obtain relief.

556 U.S. 129, 142 (2009) (internal citations omitted, bracketed language in
original). In other words, absent structural error, proof of error does not ipso facto
prove prejudice. If it did, our plain error test would be effectively reduced to only
two prongs. If a Hills error were structural, we presume our superior court would
have so stated, given the strong presumption against structural errors, and further
would not have bothered to test for prejudice in that case, which it did. 75 M.J. at
358.

       Appellant also argues that this case was not strong. The evidence consisted of
the credible testimony of SPC JR as well as post-assault apologies that the
government successfully presented as evidence of consciousness of guilt. Appellant
correctly notes the lack of corroborating physical or forensic evidence.

       Our understanding of the proper framework for determining prejudice for
Hills violations continues to develop as we consider each new case. A candid
review of our cases considering the matter shows a progression in our analyses as we
consider the facts of each new case and absorb binding and persuasive authority
from our superior and sister courts. See Hoffman,     M.J.    , 2017 CCA LEXIS
425, at *12-13 (surveying recent decisions of Hills violations). For this panel, we
have viewed the danger from an improper propensity instruction to be greatest when
issues of propensity are clearly at play.

       In United States v. Guardado, we found a low likelihood of prejudice because
the evidence that the accused had committed the other misconduct was not credible.
75 M.J. 889 (Army Ct. Crim. App. 2016), pet. granted, 76 M.J. 166 (C.A.A.F. 2017).
“The likelihood of prejudice from propensity evidence is greatest when the evidence
is solid and credible. In other words, weak evidence offered to show propensity
poses less danger of contributing to the verdict.” Id. at 898.

       Similarly in United States v. Moore, this panel was presented with a case in
which there was substantial evidence as to one offense, but less convincing evidence
as to the other offenses. ARMY 20140875, 2017 CCA LEXIS 191 (Army Ct. Crim.
App. 23 Mar. 2017), pet. granted, 76 M.J.     , 2017 CAAF LEXIS 630 (C.A.A.F. 22
June 2017) (order). We assessed that such a situation created a danger that strong
evidence of one offense may bleed over to prove the offenses for which the evidence
was not so strong. Id. at *10-14. Accordingly, we set aside all but the one offense.
Id.


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       In United States v. Denson, we set aside all the subject offenses because of
concerns about propensity. ARMY 20150137, 2017 CCA LEXIS 564 (Army Ct. Cr.
App. 18 Aug. 2017). In that case, the government presented evidence that several
charged victims were assaulted in a manner that was arguably similar. An improper
propensity inference was a rational response to these facts. Id. at *3-5. In such a
case, an instruction that tells a panel they may infer that which there may have been
a natural instinct to do anyway compounds the danger of an improper instruction.

      Most importantly, however, our analysis of prejudice for Hills violations is
framed by the appellate posture of the issue on appeal. 5 In cases of preserved error,
the burden falls on the government and the burden is proof of harmlessness beyond a
reasonable doubt. Hills, 75 M.J. at 357. In cases of unpreserved error, the burden is
on appellant to show material prejudice to a substantial right. Hoffman,     M.J.    ,
2017 CCA LEXIS 425, at *30-31.

      Here, we cannot find a specific showing of prejudice in a case where
propensity was not argued or discussed. Indeed, the absence of an objection by the
defense and argument by the trial counsel is indicative of the low impact of
propensity at the trial.

       For the reasons stated in Hoffman we find appellant has met the first two
prongs of a plain error analysis and has demonstrated that the Hills instruction in
this case was obvious error. Id. at *26-30. We, however, do not find appellant has
met his burden of establishing prejudice, and therefore do not find plain error.

                                    CONCLUSION

       In light of this court’s inability to resolve the conflicting affidavits presented
on appeal, the record of trial is returned to The Judge Advocate General for such
action as is required to conduct a DuBay hearing on whether trial defense counsel
were ineffective in their representation of appellant at trial.

       As noted in our discussion, although the need for a DuBay hearing primarily
results from the conflicting affidavits of appellant and his civilian defense counsel
regarding the Facebook conversation between SPC JR and appellant, the DuBay
military judge shall consider all of appellant’s claims of ineffective assistance of
counsel. However, the military judge is required to consider only those claims of
ineffective assistance of counsel that have already specifically been identified by
appellant’s briefs, Grostefon materials, and sworn affidavit. The Clerk of Court is


5
  In Guardado and Moore we treated the Hills issue as preserved based upon the
government’s concession or the parties framing of the issue. Guardado, 75 M.J. at
905; Moore, 2017 CCA LEXIS 191, at *6.

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directed to provide a copy of these materials to the DuBay judge. The military judge
at the hearing will make findings of fact and conclusions of law as appropriate.

       Upon conclusion of the DuBay hearing, the record will be returned to this
court for further review.

      Senior Judge MULLIGAN and Senior Judge CAMPANELLA concur.

                                       FOR THE COURT:




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




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