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

                               UNITED STATES, Appellee
                                           v.
                        Staff Sergeant WILLIAM L. MITCHAM
                             United States Army, Appellant

                                          ARMY 20140969

            Headquarters, Joint Readiness Training Center and Fort Polk
                 Randall L. Fluke, Military Judge (arraignment)
                     Wade N. Faulkner, Military Judge (trial)
                 Colonel Jan E. Aldykiewicz, Staff Judge Advocate

For Appellant: Captain Jennifer K. Beerman, JA; Mr. Sean A. Marvin, Esquire (on
brief); Captain Matthew L. Jalandoni, JA; Mr. Sean A. Marvin, Esquire (on reply
brief and on motion for reconsideration).

For Appellee: Colonel Mark H. Sydenham, JA; Major Cormac M. Smith, JA;
Captain Linda Chavez, JA (on brief); Colonel Mark H. Sydenham, JA; Lieutenant
Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA
(on response for motion for reconsideration).


                                          30 January 2017

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             MEMORANDUM OPINION ON REMAND ON RECONSIDERATION
             ----------------------------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       A panel with enlisted representation acquitted appellant of stealing and
mistreating a dog. The panel convicted appellant of disrespecting a superior
commissioned officer, assault consummated by battery, aggravated assault with
force likely to produce death or grievous bodily harm, and communicating indecent
language in violation of Articles 89, 128, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 889, 928, 934 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for two
years, and reduction to the grade of E-1.
MITCHAM—ARMY 20140969

       In our earlier decision, United States v. Mitcham, ARMY 20140969, 2016
CCA LEXIS 697 (Army Ct. Crim. App. 30 Nov. 2016) (mem. op.), we set aside the
finding of guilty to indecent language but affirmed the lesser-included offense of
general disorder under Article 134, UCMJ. We affirmed the remaining findings of
guilty, reassessed the sentence, and affirmed the sentence as adjudged. On 28
December 2016, appellant asked that we reconsider our decision. We grant
appellant’s motion for reconsideration, and for the reasons explained below, provide
appellant with some of his requested relief.

                                  BACKGROUND

       During a mandatory training session appellant made offensive sexist
comments. 1 Specifically, appellant stated that he could not trust women because, in
a reference to women’s menstrual cycles, he didn’t trust anything that bled for seven
days and didn’t die. Appellant’s battalion commander directed Captain (CPT) Chase
to counsel appellant regarding his comment. While being counseled appellant
refused to sign the counseling form and said to CPT Chase “Fuck this shit, I’m not
going to sign this.”

       For this language, appellant was charged with disrespecting a superior
commissioned officer. After reviewing the evidence we found the specification to
be factually and legally sufficient.

                                   DISCUSSION

                       A. The Evidence is Factually Sufficient

       In United States v. Najera, 52 M.J. 247 (C.A.A.F. 2000) the accused was
ordered to attend unit training. The accused refused, and stated “you can’t make me
go.” That accused was subsequently convicted of disrespecting a superior
commissioned officer. The Court of Criminal Appeals found the evidence legally
and factually sufficient, and the Court of Appeals for the Armed Forces (CAAF)
affirmed the finding of guilty for disrespecting a superior commissioned officer as
legally sufficient.

      Here, appellant testified regarding this offense. He stated during direct
examination that he regarded the counseling as “political stuff that somebody wanted
to have done” and that he didn’t believe he had done anything wrong. He testified


1
  Appellant was convicted of using indecent language for his comments at the
training session. As explained in our original decision, we found appellant’s
comment to be highly offensive but not “indecent.” We therefore affirmed a lesser-
included offense of a general disorder.


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MITCHAM—ARMY 20140969

that the counseling session interfered with “things I needed to go take care of and do
. . . .” Appellant’s disdain for the counseling session is palpable and leaps off the
page. Regarding the statement in question, appellant testified on direct as follows:

             Well, I was frustrated at the situation. I sat back in my
             chair, and I thought about it for a moment. I pondered.
             And I said, “You know what,” to myself. I looked at
             Captain Chase, and he was just kind of waiting for what I
             was going to say. And, I said, “Sir, this is bullshit.” I
             said, “You know it, I know it, Sergeant Crawford knows
             it. Fuck this. I’m not signing it, sir.”

Appellant’s counsel then questioned him about his actual words, and appellant
clarified: “I’m pretty sure what I said, “Fuck this shit. I’m not going to sign this
because this is basically bullshit, sir.”

       In his own words, appellant “sat back in chair,” “pondered,” and then decided
to launch his verbal tirade at his superior commissioned officer. Additionally, this
was one of the few parts of appellant’s testimony that struck us as credible; most of
the rest being obvious baloney. Captain Chase also testified about the exchange. He
was asked: “The phrase, ‘Fuck that shit,’ who was that comment directed at?”
Captain Chase responded, “It was at me.” 2

Disrespectful behavior is defined as that which:

             detracts from the respect due the authority and person of a
             superior commissioned officer. It may consist of acts of
             language, however expressed, and it is immaterial whether
             they refer to the superior commissioned officer as an
             officer or as a private individual. Disrespect by words
             may be conveyed by abusive epithets or other
             contemptuous or denunciatory language.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], Part IV,
para. 13c(3).


2
 On cross examination, CPT Chase testified that he personally—that is,
subjectively—did not feel disrespected. Whether words are disrespectful is
determined objectively, not on how thick (or thin) the skin of the recipient may
happen to be. A statement does not become disrespectful merely because the
recipient is particularly sensitive. Nor does a disrespectful statement lose its
disrespectful nature merely because the recipient happens to be desensitized to its
disrespectful nature.


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MITCHAM—ARMY 20140969


       We continue to find the offense of disrespect to be factually sufficient.
Appellant’s words are clearly disrespectful, especially given the context in which he
said them. See Najera, 52 M.J. at 247 (stating a reviewing court may consider the
context in which a statement is made when assessing whether it was disrespectful).
After making a highly offensive and sexist comment at a unit mandatory training
session, appellant was being counseled for his conduct. He then, intentionally and
after contemplation, directed a profanity laced tirade at CPT Chase in front of at
least one other non-commissioned officer. In his own words, and on direct
examination, he testified that CPT Chase’s action in counseling him was “bullshit.”
We have no hesitation in finding the evidence factually sufficient.

       Moreover, we are not the initial finders of fact. In assessing factual
sufficiency we must acknowledge that the trial court saw and heard the witnesses.
In assessing factual sufficiency we give no deference to the trial court’s findings of
guilty, but we do “recognize” their ability to see the witnesses testify. See generally
United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002). To the extent that
different weight could be given to the witness testimony depending on its in-court
delivery, the court-martial was able to assess this evidence. Our recognition that the
trial court saw the witnesses further weighs in favor of finding the evidence
factually sufficient in this case.

                         B. Should the Offense Be Approved?

       Unusually, and the reason we granted reconsideration, the government on
appeal has conceded that the evidence was factually insufficient. In our initial
opinion we ignored this concession as we clearly came to the opposite conclusion.
On reconsideration, however, we have come to view this concession in a different
light.

        Clearly the offense in question is legally sufficient, and a reasonable
factfinder could determine that appellant is guilty. Nonetheless, the government
argues against affirmance. While government could make a non-frivolous argument
in favor of affirmance, the government has chosen instead to argue the opposite. We
did not fully appreciate the uniqueness of the government’s concession during our
initial review. 3 When an offense is legally sufficient but the government argues
factual insufficiency, it is clearly a discretionary decision. The government asks us
to set aside the specification not because it has to, but because it wants to, make that
argument. The government’s concession is structurally similar to the prosecutor at


3
 We directed the government to respond to appellant’s motion for reconsideration.
The government argued in favor of granting the motion, and again argued that we
should find appellant not guilty of the offense.


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MITCHAM—ARMY 20140969

trial, while having sufficient evidence to easily survive a Rule for Courts-Martial
[hereinafter R.C.M.] 917 motion and having proven the offense beyond a reasonable
doubt in the mind of the panel, nonetheless arguing in favor of the court-martial
returning a verdict of not guilty on the merits.

       The government’s concession, to be sure, does not alter our determination that
the specification is factually sufficient. The UCMJ prohibits appellant’s
disrespectful conduct towards his commander. 4 However, it does alter our analysis
on whether the specification “should be approved.” Here, the United States, through
counsel who are professionally obligated to represent the government’s interests,
asks this court to set aside the conviction. 5 “Our adversary system is designed
around the premise that the parties . . . are responsible for advancing the facts and
arguments entitling them to relief.” United States v. Blazier, 68 M.J. 439, 443
(C.A.A.F. 2010) (quoting Greenlaw v. United States, 554 U.S. 237 (2008)), but cf.
United States v. Budka, 74 M.J. 220 (C.A.A.F. 2015) (Courts of criminal appeals,
nor CAAF, are not bound by government concessions.). Viewed in this new light,
we considered two options.

       First, we considered setting aside the convening authority’s action and
returning the case to him so that he may exercise clemency authority on behalf of the
United States. The convening authority is likely the person best empowered to
address this issue as it borders on nullification and equity. We rejected this option
for reasons of judicial economy.

       The second option, and the one we take today, is simply to disapprove the
finding because it should no longer be approved. UMCJ art. 60(c). This option is
likely at the outside edge of our authority, and but for the government’s concession,
would likely be beyond it. See United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010).
We do not believe our decision is based in equity, as Nerad would prohibit, although
perhaps it is a close call. Rather, in a system which pins its accuracy on the benefits




4
 If not prohibited by the UCMJ, the conduct is likely lawful—most certainly when
concerning issues of speech. In other words, the UCMJ is not just how we punish
soldiers who disobey their commander or leave their unit without authority, it is the
authority for why a soldier must obey his commander and not go AWOL. Stated yet
another way, the UCMJ is not merely the method of enforcing norms of acceptable
behavior—it establishes them.
5
 Again this is a significant point. It is not government counsel who ask us to set
aside the conviction because of their personal assessment of the evidence, it is the
United States as sovereign.


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MITCHAM—ARMY 20140969

of an adversarial contest, we should not approve a finding that neither side supports;
at least on the facts of this case. 6

                                   CONCLUSION

     The Specification of Charge IV and Charge IV are set aside and DISMISSED.
We AFFIRM our previous decision as to the remaining charges and specifications.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Included in our consideration is
our prior decision setting aside the offense of indecent language and affirming the
lesser-included offense of a general disorder. We are confident that based on the
entire record and appellant’s misconduct, the court-martial would have imposed a
sentence of at least a dishonorable discharge, twenty months confinement, and
reduction to E-1. Accordingly, we AFFIRM only so much of the sentence as
provides for a dishonorable discharge, confinement for twenty months, and reduction
to E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of this decision setting aside portions of the findings and sentence, are
ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                        FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                        JOHN
                                        DeputyP. TAITT
                                               Clerk of Court
                                        Deputy Clerk of Court




6
  We view the government’s concession here as fundamentally different from when
the government concedes legal error. See Marsical v. United States, 449 U.S. 405
(1981) (Rhenquist, J. dissenting).

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