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

                                No. ACM 39346
                           ________________________

                              UNITED STATES
                                  Appellee
                                       v.
                        Robert J. HERNANDEZ
                  Airman (E-2), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 16 January 2019
                           ________________________

Military Judge: Joseph S. Imburgia (arraignment); Vance H. Spath.
Approved sentence: Bad-conduct discharge, confinement for 15 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 15 June 2017 by GCM convened at Vandenberg Air Force Base,
California.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mat-
thew L. Tusing, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge LEWIS joined.
                           ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
DENNIS, Judge:
    Appellant was convicted, consistent with his pleas and in accordance with
a pretrial agreement, of one specification of failure to go to his appointed place
of duty, two specifications of wrongful use of cocaine, one specification of
                   United States v. Hernandez, No. ACM 39346


wrongful possession of cocaine, two specifications of wrongful distribution of
cocaine, two specifications of wrongful introduction of cocaine onto a military
installation, one specification of breaking base restriction, and one specifica-
tion of obstruction of justice in violation of Articles 86, 112a, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 912a, 934. The military
judge sitting alone sentenced Appellant to a bad-conduct discharge, confine-
ment for 15 months, total forfeiture of pay and allowances, and reduction to
the grade of E-1. The convening authority approved the sentenced as adjudged.
    Appellant raises a single issue on appeal: whether he is entitled to sentence
relief because the conditions of his post-trial confinement constituted cruel and
unusual punishment under the Eighth Amendment to the United States Con-
stitution1 and Article 55, UCMJ, 10 U.S.C. § 855.2 We find no prejudicial error
and affirm.

                                 I. BACKGROUND
    Appellant was placed in pretrial confinement on 27 January 2017 at Van-
denberg Air Force Base (AFB) where he remained confined until his trial on
15 June 2017. Because Appellant’s adjudged sentence included confinement
for 15 months, Appellant was transferred to the Naval Consolidated Brig
Miramar (California) on 20 July 2017.
    Pursuant to Appellant’s pretrial agreement, he was required to transfer
back to the Vandenberg AFB Confinement Facility a total of five times after
his trial to testify against other Airmen involved in an extensive drug ring.
During each of these stays—and despite having previously been confined at
Vandenberg AFB—Appellant was placed in “maximum custody” status for ap-
proximately 72 hours. This “acclimation period” was required for all confined
Airmen who transferred to or from another confinement facility but could be
reduced by a confinement officer. According to Appellant, his acclimation pe-
riod was more than 72 hours on at least two occasions and he was never given
access to books or the two hours per day of recreational time required for all
confined Airmen regardless of status. Appellant also asserts that he was placed


1   U.S. CONST. amend. VIII.
2 Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). In doing so, Appellant cites to both the Eighth Amendment and Articles
55 and 58, UCMJ, 10 U.S.C. §§ 855, 858. Though Appellant cites to Article 58, UCMJ,
he makes no assertion that he was placed in civilian confinement, nor is there any
evidence of civilian confinement in the record. Accordingly, we do not address Article
58, UCMJ, in our analysis.




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                  United States v. Hernandez, No. ACM 39346


in a “cell smaller than the average cell.” According to the noncommissioned
officer in charge (NCOIC) of the Vandenberg AFB Confinement Facility,3 Ap-
pellant’s cell was equal to all other cells, but its location varied depending on
the number of personnel in-processing and whether there were any personnel
in pretrial confinement. The 72-hour acclimation period is designed to catego-
rize the “risk for violence, non-compliance, self-harm, or escape.” During the
three stays described by the NCOIC, Appellant was either “verbally briefed or
written up multiple times for disobedience and failure to obey facility rules.”
Following one incident, the NCOIC asked Appellant whether he “was having
issues adjusting from the facilities.” Appellant stated that he was not.

                                 II. DISCUSSION
    Appellant asserts that his confinement conditions constituted cruel and un-
usual punishment. We disagree. We also decline Appellant’s invitation to grant
him relief using our power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), even
in the absence of cruel and unusual punishment.
    Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and un-
usual punishment. In general, we apply the United States Supreme Court’s
interpretation of the Eighth Amendment to claims raised under Article 55,
UCMJ, except where legislative intent to provide greater protections under Ar-
ticle 55, UCMJ, is apparent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F.
2000) (citing United States v. Wappler, 9 C.M.R. 23, 26 (C.M.A. 1953)).
    “[T]he Eighth Amendment 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.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006)
(quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). We apply the three-
part test prescribed in Lovett to determine whether the conditions of Appel-
lant’s confinement violated the Eighth Amendment and thus Article 55,
UCMJ. Appellant must show:
       (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.”


3The Government successfully moved to attach a declaration from the NCOIC regard-
ing the facts giving rise to Appellant’s assignment of error. The NCOIC only provided
information pertaining to three of Appellant’s five stays in the facility.


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                 United States v. Hernandez, No. ACM 39346


Lovett, 63 M.J. at 215 (footnotes omitted) (quoting United States v. Miller, 46
M.J. 248, 250 (C.A.A.F. 1997)).
    We have little before us to resolve this claim. Though the bare assertions
made by Appellant and the declaration from the NCOIC offer insight into Ap-
pellant’s claim, they are also inconsistent. But, even if we were to assume ar-
guendo that Appellant satisfied the first two prongs outlined in Lovett, he fails
to establish the third. For this reason we need not resolve the factual dispute
between Appellant’s assertions and the NCOIC’s declaration. See United
States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997) (a post-trial evidentiary hear-
ing is not required if the facts alleged would not result in relief.)
    The third prong in Lovett requires that Appellant exhaust the prisoner-
grievance system. 63 M.J. at 215. He has not. The record—including Appel-
lant’s own claims made on appeal—contains no evidence that Appellant filed a
complaint with the prisoner-grievance system or under Article 138, UCMJ. In-
deed, what little information is available demonstrates that Appellant was di-
rectly asked if there were any issues regarding his transfer to the Vandenberg
AFB Confinement Facility, and he stated there were none. The purpose of the
requirement to exhaust remedies is two-fold: “(1) the ‘resolution of grievances
at the lowest possible level’ with ‘prompt amelioration’ of the complaint while
the prisoner suffers the condition, and (2) the development of an adequate rec-
ord to aid appellate review.” United States v. McPherson, 73 M.J. 393, 397
(C.A.A.F. 2014) (quoting United States v. Wise, 64 M.J. 468, 471 (C.A.A.F.
2007)). Appellant failed to make a complaint to those best suited to resolve the
problem he now identifies. We are consequently left with little evidence that
any violation occurred, much less one that violated Appellant’s constitutional
rights.
   Accordingly, we find that Appellant’s confinement conditions do not war-
rant relief under the Eighth Amendment or Article 55, UCMJ.

                               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).




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            United States v. Hernandez, No. ACM 39346


Accordingly, the findings and the sentence are AFFIRMED.


            FOR THE COURT



            CAROL K. JOYCE
            Clerk of the Court




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