             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                        ________________________

                            No. ACM 39602
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                     Edward L. O’BRYAN III
          Airman First Class (E-3), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 24 June 2020
                        ________________________

Military Judge: Shaun S. Speranza.
Approved sentence: Dishonorable discharge, confinement for 30 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 10 September 2018 by GCM convened at Moody Air Force Base,
Georgia.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Thomas C. Franzinger, USAF;
Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Judge D. JOHNSON delivered the opinion of the court, in which Senior
Judge MINK and Judge LEWIS joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 30.4.
                         ________________________
                     United States v. O’Bryan, No. ACM 39602


D. JOHNSON, Judge:
    A general court-martial composed of a military judge convicted Appellant,
in accordance with his pleas and a pretrial agreement (PTA), of one specifica-
tion of possession of child pornography in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 The adjudged and approved
sentence consisted of a dishonorable discharge, confinement for 30 months, for-
feiture of all pay and allowances, and reduction to the grade of E-1. The PTA
had no impact on the convening authority’s ability to approve the adjudged
sentence. 2
    On appeal, the sole issue raised by Appellant is whether he is entitled to
sentence relief because the conditions of his post-trial confinement were cruel
and unusual under the Eighth Amendment to the United States Constitution, 3
Article 55, UCMJ, 10 U.S.C. § 855, and Article 58, UCMJ, 10 U.S.C. § 858.
Alternatively, Appellant argues his post-trial confinement conditions rendered
his sentence inappropriately severe pursuant to United States v. Gay, 75 M.J.
264 (C.A.A.F. 2016). Finding no error materially prejudicial to a substantial
right of Appellant, we affirm the findings and sentence. 4




1 All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States
(2016 ed.).
2The PTA provided that the convening authority would approve no confinement in
excess of 36 months but included no other limitations on the sentence he could approve.
The convening authority also agreed to withdraw and dismiss with prejudice Charge I
and its specification, which alleged wrongful possession of marijuana, in violation of
Article 112a, UCMJ, 10 U.S.C. § 912a.
3   U.S. CONST. amend. VIII.
4 Although Appellant raises no specific assignment of error, we note both trial and
defense counsel informed the military judge that Appellant was to be credited with 13
days of pretrial confinement which is reflected on the Report of Result of Trial. We note
the date range on the charge sheet and personal data sheet if accurate, would require
crediting Appellant with 15 days of pretrial confinement. See United States v. Doane,
54 M.J. 978, 984 (A.F. Ct. Crim. App. 2001) (en banc) (alteration in original) (quoting
United States v. DeLeon, 53 M.J. 658, 660 (A. Ct. Crim. App. 2000)) (per curiam) (“[A]ny
part of a day in pretrial confinement must be calculated as a full day for purposes of
pretrial confinement credit . . . except where a day of pretrial confinement is also the
day the sentence is imposed.”). As Appellant does not assert prejudice, we find none.




                                           2
                    United States v. O’Bryan, No. ACM 39602


                                  I. BACKGROUND
   Appellant came to the attention of local law enforcement in January 2017
when the Lowndes County, Georgia Sheriff’s Office (LCSO) received an email
notification from the Georgia Bureau of Investigation (GBI) which contained a
cybertip from the National Center for Missing and Exploited Children
(NCMEC). According to evidence admitted at trial, a cybertip is an online sys-
tem used to report suspected crimes.
    The cybertip was reported to NCMEC by “Dropbox.” 5 A Dropbox staff mem-
ber identified images which appeared to be child pornography while monitor-
ing accounts on Dropbox’s server. The GBI Internet Crimes Against Children
Task Force conducted a check of the Internet Protocol (IP) address which re-
turned to a Mediacom account. LCSO then submitted a subpoena to Mediacom
requesting the subscriber information. The subscriber was identified as Appel-
lant in Valdosta, Georgia.
    Armed with this information, the LCSO obtained a search warrant for Ap-
pellant’s residence. The LCSO, supported by the Air Force Office of Special
Investigations (AFOSI), searched Appellant’s residence and seized 17 elec-
tronic devices.
    The Lowndes County District Attorney’s office released jurisdiction of Ap-
pellant’s case to the United States Air Force (USAF) in September 2017. After
the USAF obtained jurisdiction, AFOSI sought and received a search authori-
zation for the 17 electronic devices seized previously by LCSO and submitted
the devices for analysis to the Department of Defense Cyber Crime Center
(DC3) for review.
    Subsequent analysis by DC3 revealed a total of 330 suspected child por-
nography digital images and videos discovered in a folder located on the hard
drive of Appellant’s desktop computer. Each of the 330 files required the pass-
word “kiddieporn” to view. Of the 330 suspected child pornography files, DC3
discovered 97 confirmed NCMEC “child notable” files. 6 DC3 also discovered 17
NCMEC child notable files in a folder on Appellant’s desktop computer titled
“Dungeons and Dragons,” and an additional six NCMEC child notable files lo-
cated in unallocated space on Appellant’s laptop computer. These files formed




5 According to the evidence at trial, Dropbox is a file housing service that offers cloud
storage, file synchronization, personal cloud, and client software.
6 During the providency inquiry, Appellant advised the military judge that he under-
stood those numbers referred to “confirmed children.”


                                           3
                    United States v. O’Bryan, No. ACM 39602


the basis for the possession of child pornography charge at trial. After Appel-
lant’s trial on 10 September 2018, he was inprocessed at the Lowndes County
Jail in Valdosta, Georgia.

                                  II. DISCUSSION
A. Additional Background
    Appellant was confined at Lowndes County Jail before being transferred to
the U.S. Naval Consolidated Brig Charleston, South Carolina (NAVCONBRIG
CHASN) on 29 October 2018.
    On 17 September 2018, Appellant’s military trial defense counsel, Captain
(Capt) DW, submitted a memorandum to the convening authority requesting
deferment of Appellant’s reduction in grade and forfeitures until action pursu-
ant to Article 57(a)(2), UCMJ, 10 U.S.C. § 857(a)(2), and Rule for Courts-Mar-
tial (R.C.M.) 1101(c). Capt DW’s memorandum did not raise any concerns re-
garding Appellant’s civilian confinement conditions, and Appellant did not
write a separate memorandum for the request. The request was denied by the
convening authority on 4 October 2018.
    On 6 December 2018, Major (Maj) DW 7 submitted matters on Appellant’s
behalf to the general court-martial convening authority (GCMCA) pursuant to
R.C.M. 1105, almost six weeks after Appellant was transferred from civilian to
military confinement. In his memorandum, Maj DW stated Appellant was in-
carcerated in the Lowndes County Jail because “Moody [Air Force Base] does
not have a military confinement facility.” He stated that Appellant spent “56
days in general population while at the Lowndes County Jail, despite his con-
viction for a sensitive sex offense.” 8 Maj DW later averred that “[o]n 28 October
2018 after other inmates learned of [Appellant’s] offense from an unknown
source, an inmate assaulted [Appellant] by striking him in the face and kicking
him in the stomach. Two days later, he was finally sent to the U.S. Naval Con-
solidated Brig, Charleston, SC.” Maj DW then requested the GCMCA provide
“2-for-1 confinement credit (112 days) for [Appellant] being housed in a dan-




7   Captain DW was promoted to major.
8 Appellate defense counsel identified “56 days” in the assignment of error, and appel-
late government counsel generally accepted Appellant’s statement of the case. How-
ever, Captain JC of the Lowndes County Jail declared to this court that Appellant was
incarcerated from 10 September 2018 to 29 October 2018, a period shorter than 56
days. For our analysis below, we will assume arguendo that Appellant’s calculations
are correct.


                                          4
                  United States v. O’Bryan, No. ACM 39602


gerous civilian confinement facility while awaiting transfer to military confine-
ment.” Appellant did not provide a separate statement to the convening au-
thority. The convening authority approved the adjudged sentence.
    On appeal, Appellant submitted a declaration to this court, which we or-
dered attached to the record. In the declaration, Appellant contends his condi-
tions of confinement in Lowndes County Jail warrant relief. Appellant stated
that after his court-martial he was transported to Lowndes County Jail and in-
processed into general population. He was “scared” to be “sent back” to general
population after his civilian defense attorney, Mr. NB, assured him that “he
spoke with the Lowndes County prison officials” and that he would “be placed
in segregation, in order to assure [Appellant’s] safety.” 9 Appellant stated, “Mr.
[NB] was concerned for my safety and asked that I be put into segregation
because I was an active duty military member who had just been convicted of
a child sex offense.” According to Appellant, “Mr. [NB] was afraid that I would
be severely injured by any civilian inmate who discovered this.” Appellant de-
clared that he was not initially in “segregation” but was first housed in open
bays during in-processing and then moved to a cell block which he shared with
three other inmates for the “next 54 days.” He stated there was no recreation
time, and he did not leave his cell block for any other reason “than command
visits and trips to medical for in processing.”
    Appellant further declared that he did not reveal the reasons as to why he
was incarcerated to the inmates he was “housed with,” and he rarely left his
cell and “no one [paid him] too much attention.” Appellant stated that “[a]t
some point another prisoner” questioned whether Appellant was a “sex of-
fender or not,” cornered him in his cell and started a “physical altercation.”
Appellant stated he was beaten by this other inmate, punched in the face,
kicked in the stomach, and knocked to the ground leaving him with bruises.
According to Appellant, “It was about this time that the correctional officer
pulled me out of the cell block and moved me to the weekend cell block.” Ap-
pellant stated he resided in this cell block over the weekend until he was trans-
ferred “that next Monday” to the NAVCONBRIG CHASN.
    Appellant did not provide an affidavit from Mr. NB detailing the parame-
ters of the conversation, or identify the prison officials Mr. NB spoke with at
Lowndes County Jail. In addition, Maj DW did not reference any conversation
between Mr. NB and Lowndes County Jail officials in either of his memoranda
to the convening authority. Finally, Appellant did not aver, and we have no




9Appellant had previously spent one night in general population in Lowndes County
Jail before his court-martial.


                                        5
                  United States v. O’Bryan, No. ACM 39602


evidence that Appellant required medical treatment after the physical alterca-
tion.
    In response to Appellant’s assignment of error, the Government obtained a
sworn declaration from the Lowndes County Jail administrator, Captain JC,
which we ordered attached to the record. In the declaration, Captain JC ad-
vised his duties included supervising the daily operations of the facility, and
that he had access to all records of movement, incident reports, and medical
records for the inmates in the jail. Captain JC declared he found no records of
Appellant being assaulted by another inmate. He further found no information
in Appellant’s medical chart which indicated that he was seen by the medical
staff after an assault. Finally, Captain JC stated that he “found no Incident
Reports, Inmate Requests, Grievances, or Medical Reports indicating that [Ap-
pellant] reported any injuries while in the Lowndes County Jail.”
    Appellant argues his confinement conditions were cruel and unusual under
the Eighth Amendment and Article 55, UCMJ, because the Lowndes County
Jail “did the exact opposite of what they promised; and, as a result, Appellant
suffered injuries to his face and stomach while in the government’s custody.”
Appellant further avers that the jail officials “lied” to Appellant’s civilian de-
fense counsel, “did not take steps to keep Appellant safe, and as a result, Ap-
pellant was injured by another inmate.” Finally, Appellant contends that his
actions, before confinement and during confinement “effectively” amounted to
an Article 138, UCMJ, 10 U.S.C. § 938, claim or in the alternative, his circum-
stances were “unusual or egregious” such that he was excused in not exhaust-
ing his administrative remedies.
   Appellant further argues that even in the absence of an Eighth Amendment
and Article 55, UCMJ, violation his confinement conditions rendered his sen-
tence inappropriately severe warranting relief under Article 66(c), UCMJ, 10
U.S.C. § 866, and this court’s decision in United States v. Gay, 74 M.J. 736, 742
(A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).
    The Government responds that Appellant’s claim under the Eighth Amend-
ment and Article 55, UCMJ, fails under all three prongs articulated under
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), and Appellant has
produced no evidence of unusual or rare circumstances that warrants applica-
tion of this court’s authority to grant sentence relief under Article 66(c), UCMJ.
B. Law and Analysis
   As an initial matter, we considered both the declaration from Appellant
and Captain JC to resolve Appellant’s claims under the Eighth Amendment,
Article 55, UCMJ, and Article 58, UCMJ. See United States v. Jessie, 79 M.J.
437, 444–45 (C.A.A.F. 2020). We also considered both declarations in deter-



                                        6
                   United States v. O’Bryan, No. ACM 39602


mining whether we should exercise our Article 66(c), UCMJ, authority to pro-
vide “appropriate” sentence relief as Appellant requested and whether his post-
trial confinement conditions made Appellant’s sentence “inappropriately se-
vere.” See United States v. Cink, No. ACM 39594, 2020 CCA LEXIS 208, at
*18–20 (A.F. Ct. Crim. App. 12 Jun. 2020) (unpub. op.); United States v.
Macaluso, No. ACM S32556, 2020 CCA LEXIS 171, at *8 (A.F. Ct. Crim. App.
27 May 2020) (unpub. op.).
    To the extent there are contradictions between Appellant’s declaration and
Captain JC’s, we considered whether a post-trial evidentiary hearing was re-
quired to resolve a factual dispute. See United States v. Ginn, 47 M.J. 236, 248
(C.A.A.F. 1997); United States v. Dubay, 37 C.M.R. 411, 413 (C.M.A. 1967) (per
curiam). We are convinced such a hearing is unnecessary. Even if we resolve
any contradictions in Appellant’s favor, the alleged conditions would not result
in our granting relief. See Ginn, 47 M.J. at 248.
   1. Eighth Amendment and Article 55, UCMJ
    We review de novo whether an appellant has been subjected to impermis-
sible post-trial confinement conditions in violation of the Eighth Amendment
or Article 55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007)
(citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)). “A service-
member is entitled, both by statute and the Eighth Amendment, to protection
against cruel and usual punishment.” United States v. Avila, 53 M.J. 99, 101
(C.A.A.F. 2000) (citations omitted). In general, we apply “the Supreme Court’s
interpretation of the Eighth Amendment to claims raised under Article 55, ex-
cept in circumstances where . . . legislative intent to provide greater protections
under [Article 55]” is apparent. Id. (citation omitted). “[T]he Eighth Amend-
ment prohibits two types of punishments: (1) those ‘incompatible with the
evolving standards of decency that mark the progress of a maturing society’ or
(2) those ‘which involve the unnecessary and wanton infliction of pain.’” Lovett,
63 M.J. at 215 (quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)).
    The Supreme Court has held that the Eighth Amendment “‘does not man-
date comfortable prisons,’ . . . but neither does it permit inhumane ones.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (1981)). “[P]rison officials must ensure that inmates receive ade-
quate food, clothing, shelter and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Id. at 832 (quoting Hudson
v. Palmer, 468 U.S. 517, 526–27 (1984)). This includes protecting prisoners
from violence committed by other prisoners. Id. at 833.
   Prison officials are not held constitutionally liable for every injury suffered
by a prisoner at the hands of another. Id. at 834. The United States Supreme
Court has held that a prison official violates the Eighth Amendment when two


                                        7
                      United States v. O’Bryan, No. ACM 39602


conditions are met. “First, the deprivation alleged must be, objectively, ‘suffi-
ciently serious.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “A
prison official’s act or omission must result in the denial of ‘the minimal civi-
lized measure of life’s necessities.’” Id. (quoting Rhodes, 452 U.S. at 347). For
a claim such as Appellant’s “based on a failure to prevent harm, the inmate
must show that he is incarcerated under conditions posing a substantial risk
of serious harm.” Id. (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).
    The second condition is that the prison official must have a “sufficiently
culpable state of mind.” Id. (quoting Wilson, 501 U.S. at 297) (internal quota-
tion marks omitted). “In prison-conditions cases that state of mind is one of
‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501
U.S. at 302–03).
    The Court of Appeals for the Armed Forces (CAAF) has held that a violation
of the Eighth Amendment is shown by demonstrating:
          (1) an objectively, sufficiently serious act or omission resulting
          in the denial of necessities; (2) a culpable state of mind on the
          part of prison officials amounting to deliberate indifference to
          [Appellant’s] health and safety; and (3) that [Appellant] “has ex-
          hausted the prisoner-grievance system . . . and that he has peti-
          tioned for relief under Article 138, UCMJ, 10 U.S.C. § 938
          [2000].”[ 10]
Lovett, 63 M.J. at 215 (third and fourth alteration in original) (footnotes omit-
ted) (quoting United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). The
burden to make this showing rests upon Appellant. Id. at 216.
    A military prisoner’s “burden to show deliberate indifference requires him
to show that ‘official[s] [knew] of and disregard[ed] an excessive risk to inmate
health or safety; the official[s] must both be aware of facts from which the in-
ference could be drawn that a substantial risk of serious harm exists, and



10   Article 138, UCMJ, 10 U.S.C. § 938, provides that
          [a]ny member of the armed forces who believes himself wronged by his
          commanding officer, and who, upon due application to that command-
          ing officer, is refused redress, may complain to any superior commis-
          sioned officer, who shall forward the complaint to the officer exercising
          general court-martial jurisdiction over the officer against whom it is
          made. The officer exercising general court-martial jurisdiction shall ex-
          amine into the complaint and take proper measures for redressing the
          wrong complained of; and he shall, as soon as possible, send to the Sec-
          retary concerned a true statement of that complaint, with the proceed-
          ings had thereon.


                                             8
                  United States v. O’Bryan, No. ACM 39602


[they] must also draw the inference.’” Lovett, 63 M.J. at 216 (alterations in
original) (quoting Farmer, 511 U.S. at 837).
    The CAAF emphasized, “[a] prisoner must seek administrative relief prior
to invoking judicial intervention to redress concerns regarding post-trial con-
finement conditions.” Wise, 64 M.J. at 469 (citation omitted). “This require-
ment ‘promot[es] resolution of grievances at the lowest possible level [and en-
sures] that an adequate record has been developed [to aid appellate review].’”
Id. at 471 (alterations in original) (quoting Miller, 46 M.J. at 250). Except un-
der some unusual or egregious circumstance, an appellant must demonstrate
he or she has exhausted the prisoner grievance process provided by the con-
finement facility and has petitioned for relief under Article 138, UCMJ. White,
54 M.J. at 472 (citation omitted). This court reviews the “‘ultimate determina-
tion’ of whether an Appellant has exhausted administrative remedies de novo,
as a mixed question of law and fact.” Wise, 64 M.J. at 471 (citing United States
v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001)).
    As the CAAF noted in Wise, “[s]ince a prime purpose of ensuring adminis-
trative exhaustion is the prompt amelioration of a prisoner’s conditions of con-
finement, courts have required that these complaints be made while an appel-
lant is incarcerated.” Id. (citing United States v. White, No. ACM 33583, 1999
CCA LEXIS 220, at *4 (A.F. Ct. Crim. App. 23 Jul. 1999) (unpub. op.) (altera-
tion in original) (“holding that solely raising conditions of confinement com-
plaints in post-release clemency submissions is inadequate to fulfill the re-
quirement of exhausting administrative remedies and that ‘after the appellant
has been released from confinement . . . we have no remedy to provide’”), aff'd,
White, 54 M.J. at 475).
    We need not determine whether Appellant has met his burden under the
first Lovett factor—an objectively, sufficiently serious act or omission resulting
in the denial of necessities—as we find he cannot meet his burden on the sec-
ond and third factors which we describe below.
       a. Deliberate indifference to Appellant’s health and safety
    Appellant failed to sustain his burden of establishing a culpable state of
mind on the part of Lowndes County Jail officials amounting to deliberate in-
difference to his health and safety. We will not speculate about what prison
officials knew of the specific conditions of Appellant’s confinement, risks to Ap-
pellant in general population as a military member convicted of possession of
child pornography, or what conclusion(s) they might have drawn. The burden
to make that showing rested upon Appellant. Lovett, 63 M.J. at 216. Appellant
only indicated that his civilian defense counsel was afraid for his safety, and
that prison officials “lied” to his civilian defense counsel when they placed him




                                        9
                  United States v. O’Bryan, No. ACM 39602


in general population. In the absence of evidence showing what the prison of-
ficials knew, and that they disregarded known risks to inmate safety, Appel-
lant has failed to demonstrate that prison officials were deliberately indifferent
to any conditions that might have violated the Eighth Amendment and Article
55, UCMJ. Appellant has failed to meet this prong under Lovett.
       b. Exhausting administrative relief before judicial intervention
    Appellant concedes he did not attempt to seek administrative relief after
he was confined but avers (1) his actions “before confinement and during con-
finement, effectively amounted to an Article 138 complaint,” 11 or (2) his cir-
cumstances were “unusual or egregious” such that he was “excused” in not ex-
hausting his administrative remedies because the complaints would not be “re-
alistic solutions” in addressing the problem. See United States v. Alexander-
Lee, No. ACM S31784, 2012 CCA LEXIS 95, at *10 (A.F. Ct. Crim App. 16 Mar.
2012) (unpub. op.). We disagree with both of Appellant’s assertions.
     As to Appellant’s first argument, we agree with the Government that Ap-
pellant is unclear on the actions he took that “effectively amounted to a com-
plaint under Article 138, UCMJ.” The standard under Lovett is not “effectively”
filing an Article 138, UCMJ, complaint and prisoner grievance, it is actually
exhausting those administrative remedies. Exhaustion requires Appellant
demonstrate that two paths of redress have been attempted, each without sat-
isfactory result. Wise, 64 M.J. at 471. Appellant never avers, and we have no
evidence, that he actually filed a complaint using these two paths of redress.
Rather, despite having command visits while at the civilian confinement facil-
ity, the first time Appellant complained to his command about his post-trial
confinement conditions was in his clemency submission after he had already
been transferred to a military confinement facility. Had he filed an Article 138,
UCMJ, complaint and a prisoner grievance while in the civilian confinement
facility, the record would reflect what action, if any, his command and prison
officials took in response. Appellant failed to make his grievances known to his
command and prison officials and thus made it impossible for them to amelio-
rate, let alone record, those grievances.
    Appellant next avers that we should find the same “unusual or egregious”
circumstances as we found in Alexander-Lee thereby excusing Appellant’s fail-
ure to exhaust his administrative remedies because filing such complaints
would not be a realistic solution when he was being “repeatedly assaulted and
victimized.” However, Appellant’s reliance on Alexander-Lee is misplaced. The




11Although Appellant only avers his actions should amount to an Article 138 com-
plaint, we will also analyze if the actions amounted to a prisoner grievance.


                                       10
                    United States v. O’Bryan, No. ACM 39602


appellant in Alexander-Lee had no understanding of being confined with for-
eign nationals and his counsel was unaware of the situation, and therefore he
did not file an Article 138 complaint or grievance with prison officials. Alexan-
der-Lee, unpub. op. at *9.
    We find no such “unusual or egregious circumstances” in Appellant’s case.
Appellant’s claim that exhausting his administrative remedies would not be a
realistic solution while being “repeatedly assaulted and victimized” is both con-
clusory and contradicts his declaration that he was assaulted on one occasion
after at least “54 days” of his incarceration in general population. 12 We are not
persuaded that a complaint to the confinement facility and his chain of com-
mand were not realistic solutions during the entire period he was in general
population. Without presenting his claims, we have no way to determine what
remedial action—if any—might have been taken. Had remedial action not been
taken, we would have a more developed record that would explain the circum-
stances. Although we acknowledge Appellant may have viewed any attempt at
securing relief to be an unrealistic solution, we are unwilling to reach this con-
clusion, especially considering that his complaint of not being “segregated” is
of the sort ripe for action by confinement officials at the time the problem is
presented.
    Similarly, had Appellant immediately alerted his chain of command as to
his specific concerns about not being segregated, Appellant’s command may
have sought to have him transferred to the NAVCONBRIG CHASN or another
facility more expeditiously, or taken other corrective action. Whether his com-
mand would have taken such action, or how his command would have justified
not taking such action, are questions we cannot answer because Appellant did
not raise his concerns until after he had been released from Lowndes County
Jail despite having access to his command.
    We are not persuaded that Appellant was “excused” in exhausting his rem-
edies because his circumstances were “unusual or egregious.” Far from ex-
hausting the prisoner-grievance system or the Article 138, UCMJ, process, Ap-
pellant deprived the Lowndes County Jail and his command the opportunity
to address his concerns at the time.
       c. Conclusion as to Eighth Amendment and Article 55, UCMJ
    Finding that Appellant failed to sustain his burden of establishing a culpa-
ble state of mind on the part of Lowndes County Jail officials amounting to



12Appellant declared that after in-processing he shared a cell with three other men for
the “next 54 days” and that after the “physical altercation” he was moved to the week-
end cell block and then transferred to NAVCONBRIG CHASN.


                                          11
                   United States v. O’Bryan, No. ACM 39602


deliberate indifference to his health and safety and that no “unusual or egre-
gious circumstance” exists excusing Appellant's failure to exhaust his admin-
istrative remedies, Appellant is not entitled to relief under either the Eighth
Amendment or Article 55, UCMJ.
   2. Article 58, UCMJ—Execution of Confinement
    This court also reviews de novo Article 58, UCMJ, issues. United States v.
Burrell, No. ACM S32523, 2019 CCA LEXIS 371, at *9 (A.F. Ct. Crim. App. 12
Sep. 2019) (unpub. op.) (citation omitted). Appellant avers the conditions of his
post-trial confinement violated Article 58, UCMJ. Article 58(a), UCMJ, pro-
vides that military members serving a sentence to confinement may be con-
fined in a civilian facility, but persons so confined “are subject to the same dis-
cipline and treatment as persons confined or committed by the courts of the
United States or of the State, District of Columbia, or place in which the insti-
tution is situated.” 10 U.S.C. § 858(a).
   The crux of Appellant’s claim is his rights were violated because he was not
placed in segregation as promised by the Lowndes County Jail staff. Appellant
provides no evidence that he was not subject to the same discipline and treat-
ment of other persons confined.
    As with alleged violations of the Eighth Amendment and Article 55, UCMJ,
prisoners must first exhaust administrative remedies before invoking judicial
intervention to remedy alleged violations of Article 58(a), UCMJ. See, e.g.,
United States v. Damm, No. ACM 39399, 2019 CCA LEXIS 283, at *14 (A.F.
Ct. Crim. App. 21 Jun. 2019) (unpub. op.); United States v. Lemburg, No. ACM
39261, 2018 CCA LEXIS 424, at *17–18 (A.F. Ct. Crim. App. 30 Aug. 2018)
(unpub. op.). Because we determine that Appellant failed to exhaust his ad-
ministrative remedies, we will not now consider Appellant’s claims cast as vi-
olations of Article 58, UCMJ.
   3. Article 66, UCMJ, Authority
    Under Article 66(c), UCMJ, we have broad authority and the mandate to
approve only so much of the sentence as we find appropriate in law and fact
and may therefore grant sentence relief even without finding an Eighth
Amendment or Article 55, UCMJ, violation. See Gay, 74 M.J. at 742; see also
United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). When this court con-
siders judicial relief under Article 66(c), UCMJ, for conditions of post-trial con-
finement, we have not strictly required an appellant to demonstrate that he
has, absent unusual or egregious circumstances, previously exhausted admin-
istrative remedies. See United States v. Kyc, No. ACM S32391, 2017 CCA
LEXIS 376, at *13–14 (A.F. Ct. Crim. App. 30 May 2017) (unpub. op.). We in-
stead consider the entire record and typically give “significant weight” to an



                                        12
                   United States v. O’Bryan, No. ACM 39602


appellant’s failure to seek administrative relief prior to invoking judicial inter-
vention, while recognizing the limits of our authority. United States v. Bailey,
No. ACM S32389, 2017 CCA LEXIS 604, at *11 (A.F. Ct. Crim. App. 11 Sep.
2017) (unpub. op.).
    Though we do not make light of any injury Appellant may have suffered
during confinement even though he did not seek medical treatment, we decline
to provide sentence relief under Article 66(c), UCMJ. As this court observed in
United States v. Ferrando,
       While we have granted sentence relief based upon conditions of
       post-trial confinement where a legal deficiency existed, we are
       not a clearing house for post-trial confinement complaints or
       grievances. Only in very rare circumstances do we anticipate
       granting sentence relief when there is no violation of the Eighth
       Amendment or Article 55, UCMJ.
77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omitted). This case does
not present those very rare circumstances.
    Appellant claims that his post-trial confinement conditions made his sen-
tence “inappropriately severe.” We review issues of sentence appropriateness
de novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United
States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). “We assess sentence appropri-
ateness by considering the particular appellant, the nature and seriousness of
the offense[s], the appellant’s record of service, and all matters contained in
the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct. Crim. App.
2015) (en banc) (per curiam) (alteration in original) (quoting United States v.
Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we have great
discretion to determine whether a sentence is appropriate, we have no author-
ity to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010)
(citation omitted).
    Having given individualized consideration to Appellant, the nature and se-
riousness of the offense, Appellant’s record of service, that he was involved in
a physical altercation with another inmate, the injuries Appellant declared he
suffered while incarcerated, and all other matters contained in the record of
trial, we conclude that the sentence is not inappropriately severe.

                                III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




                                        13
             United States v. O’Bryan, No. ACM 39602


Accordingly, the findings and sentence are AFFIRMED.


            FOR THE COURT



            CAROL K. JOYCE
            Clerk of the Court




                                 14
