UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                         WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                      Sergeant First Class AARON D. KELLER
                           United States Army, Appellant

                                     ARMY 20150619

                      Headquarters, III Corps and Fort Hood
             Wade N. Faulkner and Douglas K. Watkins, Military Judges
                   Colonel Ian G. Corey, Staff Judge Advocate

For Appellant: Captain Timothy G. Burroughs, JA; Richard W. Rousseau, Esquire
(on brief and reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Marc B. Sawyer, JA;
Lieutenant Colonel Karen J. Borgerding, JA (on brief).

                                    26 September 2018

                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

      In May of 2014, four male noncommissioned officers (NCOs) drugged then
gang raped a female junior enlisted soldier while deployed in Camp Bondsteel,
Kosovo. All four were court-martialed.

      Staff Sergeant (SSG) Carroll A. Gaither was convicted of rape, conspiracy,
and three other offenses. SSG Gaither’s sentence included eight years confinement
and a dishonorable discharge. Sergeant First Class (SFC) Michael E. Gee was
convicted of sexual assault, conspiracy and four other offenses. SFC Gee’s sentence
included no confinement, but did include a bad-conduct discharge. Master Sergeant
(MSG) SF was acquitted.

       Appellant, Sergeant First Class Aaron D. Keller, was convicted of four
specifications of rape, conspiracy to commit sexual assault, maltreatment, abusive
KELLER—ARMY 20150619

sexual contact, and indecent exposure. 1 The panel sentenced appellant to a
dishonorable discharge, confinement for ten years, forfeiture of all pay and
allowances, and reduction to the grade of E-1.

      Appellant raises several issues on appeal. We discuss all but one. 2

                                  BACKGROUND

       In May 2014, Specialist MR was deployed to Kosovo. As with most deployed
environments, consuming alcohol was prohibited. On the evening of 31 May 2014,
SPC MR’s roommate sent her a text inviting her to play cards with four NCOs.
When she arrived with her roommate, there was an abundance of alcohol in the room
and she observed that MSG SF had been drinking. The four NCOs insisted that SPC
MR have a drink, and she eventually agreed. She testified that appellant pulled out a
bottle of Grey Goose vodka and gave it to her. The group played cards. Master
Sergeant SF repeatedly indicated that he wanted to “play for something,” which was
understood to be something sexual. After some time, SPC MR went outside with her


1
 A general court-martial comprised of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of conspiracy to commit sexual
assault, one specification of maltreatment, one specification of making a false
official statement, four specifications of rape, two specifications of abusive sexual
contact, and one specification of indecent exposure, in violation of Articles 81, 93,
107, 120, and 120c, Uniform Code of Military Justice, 10 U.S.C. §§881, 893, 907,
920 and 920c (2012) [UCMJ]. The convening authority approved the adjudged
sentence.
2
  We do not address in detail appellant’s claim that his sentence is inappropriate in
light of the sentences imposed against his co-conspirators. See generally United
States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999). The three cases are closely related.
However, even assuming that the sentences are “highly disparate,” and further
assuming that there is no rational basis for the disparity, we would still determine
that appellant is not entitled to relief. In such cases, sentence comparison remains
only one aspect of determining sentence appropriateness. United States v. Martinez,
76 M.J. 837 (Army Ct. Crim. App. 2012). That is, the sentence comparison of a
closely related case informs, but does not decide, the sentence appropriateness
review. See Id. “Even if we assume appellant's sentence was highly disparate, in a
closely related case that lacked cogent reasons for such a disparity, appellant is not
entitled to a windfall from an otherwise appropriate sentence just because a coactor,
who may even be more culpable, received a more lenient sentence.” Id. at 842

The personal matters submitted by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), do not merit discussion nor relief.



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KELLER—ARMY 20150619

roommate to smoke a cigarette. Both women left their drinks inside. When they
returned, and after taking another drink, both women started to have symptoms that
an expert witness would testify were consistent with having been dosed with a
dissociative drug.

      Specialist MR testified that while she could recollect what happened, (with
some omissions), her body “just felt extremely heavy” and she was not able to
respond physically. She testified that MSG SF first kissed her inner thigh and then
raped her by putting his penis in her vagina. She stated that she said “Stop” and
“No.”

       After MSG SF finished, he told appellant that he was next. Specialist MR was
then raped, in turn, by appellant, SSG Gaither and SFC Gee. When SFC Gee
finished, and as SPC MR prayed to herself, appellant raped her a second time.

       The record is not crystal clear as to how long this went on or at what time it
ended. Eventually, the crime was interrupted by a neighbor knocking on the door
complaining of the loud music. With assistance, SPC MR got dressed. While
getting dressed she texted her supervisor a single word, “help.” Specialist MR
would spend the remainder of the night and most of the next day vomiting and
showering.

       A sexual assault examination of SPC MR would reveal genital injury
consistent with sexual intercourse as well as other bruising and minor injuries.
Consistent with testimony that condoms were used, the exam did not find the
presence of semen. However, examination of SPC MR’s underwear did reveal
evidence of a lubricant consistent with that used on condoms. Additionally, “touch”
DNA consistent with appellant was found on SPC MR’s underwear. Master Sergeant
SF’s DNA was found on the inside of the crotch of SPC MR’s underwear. A search
of appellant’s footlocker revealed a receipt for a recent off-base purchase of four
bottles of liquor. One of the bottles was Grey Goose. The search also revealed a
selection of condoms among appellant’s personal possessions. Independent
witnesses would verify they had seen the condition of MSG SF (drunk) and SPC MR
(vomiting) later that night. A physical examination would confirm SPC MR’s
roommate’s report that MSG SF had shaved all of his pubic hair.

      Appellant testified in his own defense. He denied everything. Appellant
claimed no one that night had consumed alcohol and that no one that night had sex.
To explain the DNA found on SPC MR’s underwear, he implausibly claimed that
while playing cards, SPC MR and her roommate, apropos of nothing, had stripped
down to their underwear and began grinding on him and the other NCOs. While he
admitted purchasing the four bottles of alcohol, he claimed that he had consumed
them all the previous weekend while on a two-day pass to Macedonia. He claimed to
have personally drank two 750ml bottles of Hennessey, and that he and other



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KELLER—ARMY 20150619

unidentified soldiers drank the other two 750ml bottles. The condoms, which were
flavored, he claimed to have obtained from the base clinic. To explain why he had
a penis pump in his locker, appellant claimed he was unable to obtain an erection
without the pump. To explain why he brought the pump to Kosovo, appellant
testified he had been planning on meeting his wife in London mid-tour.

                              LAW AND DISCUSSION

       As an initial matter, we address appellant’s personal claim that the evidence is
factually insufficient. There was no direct evidence that SPC MR had been drugged.
Also, there was no direct evidence of a criminal conspiracy.

       However, in weighing the evidence, we not only reject appellant’s testimony
as not credible, we find that in aggregate, the implausibility of appellant’s testimony
also weighs in favor of his guilt. See United States v. Pleasant, 71 M.J. 709, 712
(Army Ct. Crim. App. 2012) (an accused testifies at his own risk). When asked,
appellant could not explain why, if there was only dancing, MSG SF’s DNA was on
the inside of SPC MR’s underwear. Appellant’s tale also did not explain the Grey
Goose vodka. As the government argued, if appellant admitted purchasing Grey
Goose vodka, but claimed that he had consumed it the week prior, how would SPC
MR know to claim that he had handed her a bottle of Grey Goose vodka?
Appellant’s version of events would not explain how SPC MR’s roommate would
correctly tell police that MSG SF had hairless genitals. Here, appellant’s
mendacious testimony only served to help the government further prove their case.

       While there was no direct evidence that SPC MR was dosed with a particular
drug, and while there was no direct evidence of a criminal agreement, the panel’s
conclusion that both had been proven was a reasonable inference from the evidence.
Taking into account that the trial court saw and heard the evidence, we are also
convinced of appellant’s guilt. See UCMJ, art. 66(c).

       Accordingly we turn to appellant’s assigned errors. We address them in the
order raised by appellant.

                       A. Were offenses unreasonably multiplied?

   At trial, appellant objected that certain offenses were unreasonably multiplied for
purposes of sentencing (“UMC for sentencing”). The government agreed in part and
disagreed in part. The military judge gave appellant some of his requested relief.
On appeal, appellant claims for the first time that some offenses are unreasonably
multiplied for findings (“UMC for findings”).




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KELLER—ARMY 20150619

   Appellant asserts that we should review the decision of the military judge for an
abuse of discretion. We think this wrong. 3 At trial, appellant objected only as to an
UMC for sentencing. Appellant never claimed to the trial judge that the offenses
were an UMC for findings. Accordingly, appellant at least forfeited the claim that
the offenses were an UMC for findings. As appellant specifically raised a claim that
the charges were unreasonably multiplied for sentencing, it seems likely that
appellant knowingly did not raise the same issue as applied to findings. If so,
appellant waived any claim that the offenses were an UMC for findings on appeal.

   However, as we explain below, resolving this assignment of error does not turn
on the standard of review. In assessing whether offenses are unreasonably
multiplied we rely on our superior court’s decision in United States v. Quiroz, 55
M.J. 334 (C.A.A.F. 2000).

    We find in appellant’s favor his argument that his conviction for exposing his
penis is unreasonably multiplied with his conviction for rape. Appellant’s argument
is that “SFC Keller could not have participated in . . . a gang rape if he did not
expose his penis.” Although the government could have argued otherwise, given the
presence of SPC MR’s roommate, the government agrees that relief is warranted.
The government’s concession is reasonable and not inappropriate. Accordingly, and
given that we may only approve those findings that “should be approved,” we will
exercise our authority under Article 66(c), UCMJ, to notice forfeited and waived
issues and will conditionally dismiss the indecent exposure offense in our decretal
paragraph.

   However, we find appellant is not entitled to any other relief. Appellant was
convicted of personally raping SPC MR, as well as entering into a conspiracy with
SSG Gaither, SFC Gee, and MSG SF to sexually assault SPC MR. Additionally, the
court-martial found appellant guilty of the rapes that were committed by his
conspirators. Appellant urges us to find these offenses unreasonably multiplied.
They are not.



3
 There is a substantial difference between how this court reviews preserved and
unpreserved error. For starters, when error is preserved, this court reviews the issue
de novo as part of our review of the entire record. United States v. Sewell, 76 M.J.
14, 18 (C.A.A.F. 2017). Although briefs are helpful, appellant bears no burden in
presenting this court with a claim of preserved error. United States v. Killion, 75
M.J. 209, 214 (C.A.A.F. 2016). In the case of unpreserved error, by contrast, the
burden is on appellant to establish plain error. United States v. Knapp, 73 M.J. 33,
36 (C.A.A.F. 2014). Although this court may exercise our Article 66(c), UCMJ,
discretion to “notice” forfeited error, in the absence of such notice the failure to
carry the burden may be fatal to the claim.



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KELLER—ARMY 20150619

    Appellant suggests that we should consider that appellant’s co-conspirators were
acquitted of some of the offenses for which he was found guilty. Although perhaps
relevant to other claims of error, this does not strike us as having significant weight
when determining whether charges are unreasonably multiplied.

   Specialist MR was raped and groped by four NCOs as part of appellant’s
conspiracy. Appellant’s criminal responsibility justly extends to each offense. To
dismiss or consolidate some of these offenses for findings would be to
inappropriately diminish the extent of appellant’s criminal conduct. Accordingly,
we deny relief. See Quiroz, 55 M.J. at 339.

                  B. Was Specialist MR subject to appellant’s orders?

    Appellant was convicted of maltreating SPC MR by performing sexual acts on
her, and assisting others in performing sexual acts on her while she was under the
influence of alcohol. An element of maltreatment is that the victim is subject to the
orders of the accused. On appeal, appellant claims that SPC MR was not subject to
his orders and that therefore he could not maltreat her.

    Over defense objection, the government elicited testimony from SPC MR as to
whether she viewed herself as subject to appellant’s orders. She stated she had to
follow the orders of NCOs. While appellant testified that SPC MR was not in his
chain of command, on cross-examination he agreed that she would have to obey his
orders.

   At trial appellant did not raise that SPC MR was not subject to his orders as a
matter of law. 4 On appeal, appellant appears to maintain course and frames the issue
as one of evidentiary sufficiency.

    It is clear from the record that appellant had no direct supervisory or command
relationship with SPC MR. Article 93, UCMJ, provides that “any person subject to
his orders” is defined as:


4
  We review the sufficiency of the evidence de novo. UCMJ art. 66(c); United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). However, we consider claims of
legal error under different standards of review depending on the type of error, and
whether the error was preserved, forfeited, invited or waived. See United States v.
Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007) (preserved error is reviewed for abuse of
discretion); United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (forfeited
error is reviewed for plain error); United States v. Martin, 75 M.J. 321 (C.A.A.F.
2016) (invited error is a question of law reviewed de novo); United States v.
Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (waived issues leave no error to correct
on appeal).



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KELLER—ARMY 20150619

             [N]ot only those persons under the direct or immediate
             command of the accused but extends to all persons,
             subject to the code or not, who by reason of some duty are
             required to obey the lawful orders of the accused,
             regardless whether the accused is in the direct chain of
             command over the person.

Manual for Courts-Martial, United States, (2012 ed.) [MCM], Part IV, ¶17.c(1);
UCMJ art. 93.

       Thus, to prove maltreatment the government is not required to show a direct
command or supervisory relationship. However, we agree with appellant that it is
also not enough to merely show that the accused is of higher enlisted rank than the
person being maltreated. Appellant persuasively compares Article 90, UCMJ,
(disobeying a superior commissioned officer) and Article 91, UCMJ, (disobeying a
noncommissioned officer). Only the latter article requires that the victim be subject
to the accused’s orders.

       There are few cases on point–and they are all only persuasive authority. Our
sister court at the Navy Yard has stated that “transitory contact per se” between an
E-6 and an E-4 “did not create ‘some duty’ for the victim to obey appellant.” United
States v. Sojfer, 44 M.J. 603, 609 (N.M. Ct. Crim. App. 1996); see also United
States v. Curry, 28 M.J. 419 (C.M.A. 1989) (The CAAF questions in dicta the duty
of an E-4 to obey the orders of an E-6).

       The Coast Guard Court of Criminal Appeals appears to also agree. In United
States v. Sullivan, 2016 CCA LEXIS 404 (C.G. Ct. Crim. App. 13 Dec. 2016), the
accused and the victim met online, were stationed at a different unit, and met
“outside of any official or professional context.” Id. at *5-*7. Only after meeting
online did they both discover that they were both in the Coast Guard. Id. at *5. The
accused was charged with demanding she take nude pictures of herself while on
duty, threatening her career in exchange for sexual favors, and requesting sexual
conduct in exchange for money. Id. at *3. The court found insufficient facts that
the victim was subject to the accused’s orders. 5 Id. at *7.

      Finally, in United States v. Cowan, this court also addressed, tangentially,
when a victim is subject to the accused’s orders. 2017 CCA LEXIS 633 (Army Ct.
Crim. App. 28 Sep. 2017). Cowan was a guilty plea in which the accused had


5
  Sullivan may be unusual. First, it was the government who raised and conceded
that the victim was not subject to the accused’s orders. Second, Sullivan was a
guilty plea and therefore the appellate inquiry should be viewed with regards to the
voluntariness of the plea, not on the sufficiency of the evidence.



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KELLER—ARMY 20150619

specifically admitted that the victim was subject to his orders (and they were
members of the same platoon). Id. Thus, we affirmed appellant’s plea in that case.

       Most persuasive, however, is the plain language of Article 93, UCMJ. To
prove maltreatment, the government must prove that the victim is subject to the
accused’s orders. We therefore agree with appellant and hold that a mere difference
in enlisted rank does not establish that the victim was subject to the accused’s
orders.

       The question then becomes when is one enlisted soldier subject to the orders
of a superior enlisted soldier? What more is required?

       In United States v. Knight, 52 M.J. 47, 49 (C.A.A.F. 1999), the Court of
Appeals for the Armed Forces (CAAF) noted that they had not yet “particularly
defined” what it means to be subject to the accused’s orders. The Court appeared to
partially answer the question after finding that the “plain language of this statute
(‘subject to his orders’) does not support” a supervisory requirement, but then the
court held that “we need not decide this legal question today.” Id. at 50

       The question is an important one. If appellant cannot maltreat SPC MR
because she is not subject to his orders, it follows that SPC MR is not required under
the UCMJ to follow appellant’s orders. Consider the contrapositive scenario where
instead of raping SPC MR, appellant had given her an order. For example, if SFC
Keller had ordered SPC MR to take a position on the perimeter, or to direct weapons
fire onto a certain target, or had stopped her on the base and told her to make a
uniform correction, could SPC MR have disobeyed those orders without fear of
being court-martialed? Certainly not.

       Considering the evidence in this case and the customs of the service in the
United States Army, we conclude that SPC MR was subject to appellant’s orders.
True, appellant and SPC MR were not in the same unit (except at the most macro of
levels). However, this offense occurred in a deployed environment where military
authority and control over junior ranking individuals is likely at its zenith. Second,
unlike Sullivan, there is no evidence that appellant and SPC MR met under purely
personal circumstances. And, finally, this is not a case in which we are tasked with
determining whether a Private is subject to the orders of a Private First Class or
Specialist. Appellant is a noncommissioned officer. The United States Army vests
additional authority in its noncommissioned officer ranks. “NCOs are accomplished
military professionals who are the Army’s preeminent body of leadership. NCOs are
known as the ‘backbone of the American Army’ and are the standard bearers
responsible for training, leading, coaching, and mentoring Soldiers, small units and
teams.” Dep’t of Army, Pam. 600-25, Personnel-General: U.S. Army
Noncommissioned Officer Professional Development Guide, para. 2-9 (7 Dec. 2017).
Appellant’s authority over SPC MR was inherent in his position as an NCO in the



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Army. As an NCO in a deployed environment, SPC MR was subject to appellant’s
orders.

                  C. Ineffective Assistance of Counsel - Sentencing

      Appellant alleges that his counsel were ineffective in the presentation of his
sentencing case. Specifically, appellant claims that his counsel should have
introduced evidence of and argued about the loss of his retirement benefits if he was
discharged from the Army. 6 Appellant has submitted documents on appeal that tend
to show that if he had retired in 2018 and lived to the age of 80, the net present
value of his retirement benefits would be over $1.1 million.

       To obtain relief for ineffective assistance of counsel, appellant bears the
burden of establishing both deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The difficulty of appellant's burden to
establish ineffective of assistance of counsel—and it is his burden—was summarized
by the Supreme Court as follows:

             Surmounting Strickland's high bar is never an easy task.
             An ineffective-assistance claim can function as a way to
             escape rules of waiver and forfeiture and raise issues not
             presented at trial, and so the Strickland standard must be
             applied with scrupulous care, lest intrusive post-trial
             inquiry threaten the integrity of the very adversary process
             the right to counsel is meant to serve. Even under de
             novo review, the standard for judging counsel’s
             representation is a most deferential one. Unlike a later
             reviewing court, the attorney observed the relevant
             proceedings, knew of materials outside the record, and
             interacted with the client, with opposing counsel, and with
             the judge. It is all too tempting to second-guess
             counsel’s assistance after conviction or adverse sentence.
             The question is whether an attorney’s representation
             amounted to incompetence under prevailing professional
             norms, not whether it deviated from best practices or most
             common custom.



6
 By a matter of days, appellant’s crimes predate the effective date of the amended
Article 56, UCMJ, mandating a dishonorable discharge for an accused convicted of
rape. 10 U.S.C. § 856(b); National Defense Authorization Act for Fiscal Year 2014,
Pub. L. No. 113-66 § 1705, 127 Stat. 672, 959 (Enacted December 26, 2013,
Effective June 24, 2014).



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KELLER—ARMY 20150619

Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotations and citations
omitted). 7

      Appellant draws our attention to three cases by our superior court. We
discuss each in turn.

      In United States v. Griffin, our superior court stated:

             The general rule concerning collateral consequences of a
             sentence is that “courts-martial [are] to concern
             themselves with the appropriateness of a particular
             sentence for an accused and his offense, without regard to
             the collateral administrative effects of the penalty under
             consideration.” We see no need to relax this rule today.

25 M.J. 423, 424 (C.A.A.F. 1998) (citing United States v. Quesinberry, 12
U.S.C.M.A. 609, 612, 31 C.M.R. 195, 198 (1962)). However, the court also held
that with the agreement of the accused, it was not error to answer a panel’s questions
regarding the effect on retirement benefits if one is punitively discharged from the
service. Id. at 425.

       In United States v. Becker, 46 M.J. 141, 144 (C.A.A.F. 1997), the CAAF
found error when the military judge prohibited the introduction of evidence on the
loss of retirement benefits for someone whose retirement was imminent. United
States v. Luster, 55 M.J. 67, 72 (C.A.A.F. 2001), stands for the same principal.

       None of these cases, however, stands for the principal that evidence regarding
the loss of retirement benefits is per se admissible. Indeed, in Luster, the CAAF
stated, “Our decisions . . . do provide a military judge with a certain amount of
discretion in determining whether to allow evidence regarding the loss of retirement
benefits in a particular case.” Luster, 55 M.J at 71.

       More importantly, assuming evidence regarding retirement benefits was
admissible in this case (and it likely would be) appellant has pointed us to no
“prevailing professional norm” that would require counsel to submit such documents
in each and every case in which a retirement eligible soldier is being court-


7
  Harrington involves application of Strickland through the lens of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and within the
context of federal collateral review of a state criminal conviction. See Harrington,
562 U.S. at 100-09. We see those portions of the opinion addressing AEDPA, to
include the "doubly" deferential standard of review, to be inapplicable to an IAC
claim reviewed by this Court on direct appeal. Id. at 105.



                                          10
KELLER—ARMY 20150619

martialed. See e.g. Strickland, 466 U.S. at 688. That it is admissible does not mean
that counsel are deficient if they do not seek its admission. We are required to
assess whether “counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington, 562 U.S. at 88 (quoting Strickland, 466 U.S.
at 689). Only when counsel “made errors so serious that counsel was not
functioning as [] counsel” may we grant relief for a violation of the Sixth
Amendment. See Harrington, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 689).

       Here, counsel’s failure to admit documents regarding the loss of retiree
benefits must be understood within the context of the other information presented to
the panel. The military judge instructed the panel that a punitive discharge
“deprives [appellant] of substantially all benefits administered by the Department of
Veteran Affairs and the Army establishment.” The panel was told that a punitive
discharge “terminates the accused’s status and the benefits that flow from that
status, including the possibility of becoming a military retiree, and receiving retiree
pay and benefits.”

       The panel knew the accused’s years of service and the accused’s current pay.
The panel was fully instructed on the consequences of adjudging a punitive
discharge. Thus the question is not “why didn’t the defense counsel put the issue of
the accused’s retirement in front of the panel?” It was already squarely before the
panel, courtesy of the standard sentencing instructions. Rather, the question is
whether counsel performed deficiently when they did not give the panel a precise
dollar estimate of the lost benefits.

       Counsel submitted a lengthy “good soldier book” and concentrated their
sentencing case on seeking leniency in light of appellant’s excellent career. The
defense counsel emphasized in argument that appellant had worked hard for the
Army for 20 years. Counsel walked the panel through his evaluations, noted the
commendations, and referenced letters of support. Counsel obtained, introduced,
and then quoted in argument comments from appellant’s battalion commander who
praised his work ethic up through the week of trial. This is not a case where counsel
were not acting as counsel.

       We conclude that in this case the failure to introduce evidence on the value of
lost retirement benefits did not result in a constitutionally deficient performance.
Additionally, we do not find that appellant has met his burden of establishing
prejudice in this case for two reasons. First, appellant’s sentence remains lenient.
Appellant, along with three other NCOs, conspired and then drugged and raped a
junior enlisted soldier while deployed. Appellant’s crime strikes at the heart of the
Army’s ability to perform its military mission. Indeed, the leniency of the sentence
may be explained by the panel’s consideration of the loss of appellant’s retirement
benefits. Second, given the severity of the offenses, we see no reasonable
possibility that this panel would not have adjudged a punitive discharge in this case.



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KELLER—ARMY 20150619

       We assess as speculative the notion that even if the panel would have
adjudged a punitive discharge, they may have adjudged less confinement had they
known of the specific dollar amount attributable to appellant’s lost retirement
benefits. To demonstrate prejudice to support a claim of ineffective assistance of
counsel “[i]t is not enough to show that the errors had some conceivable effect on
the outcome of the proceeding.’” Harrington, 562 U.S. at 105. (internal quotation
and citation omitted). Rather, appellant must demonstrate a reasonable possibility
that the outcome would have been different. Id. at 111. The Supreme Court
described this standard as being only “slight[ly]” different from proof by a
preponderance, and stated that the difference between the two standards “matters
‘only in the rarest of cases.’” Id. at 112 (quoting Strickland 466 U.S. at 693). The
likelihood of a different result must be substantial, not just conceivable. Id.

                                   CONCLUSION

       On consideration of the entire record, and the assigned errors, to include those
matters personally raised by appellant pursuant to Grostefon, we hold the
Specification of Charge VI, indecent exposure, in violation of Article 120c, UCMJ,
10 U.S.C. §920c (2012), is conditionally SET ASIDE and conditionally
DISMISSED. See United States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997) (J.
Effron concurring); United States v. Hines, 75 M.J. 734, 738 n.4 (Army. Ct. Crim.
App. 2016); United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). Our
dismissal is conditional on Specification 2 of Charge I surviving the “final
judgment” as to the legality of the proceedings. See Article 71(c)(1), UCMJ
(defining final judgment as to the legality of the proceedings). The remaining
findings of guilty and sentence are AFFIRMED.

      Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.

                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:



                                       JOHN P. TAITT
                                        JOHNClerk
                                       Acting P. TAITT
                                                  of Court




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