       This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                      UNITED STATES
                    Appellee/Cross-Appellant
                                v.
                Kevin Gay, Staff Sergeant
       United States Air Force, Appellant/Cross-Appellee
                    Nos. 15-0742 & 15-0750
                     Crim. App. No. 38525
       Argued February 23, 2016—Decided May 11, 2016
              Military Judge: Joshua E. Kastenberg
   For Appellee/Cross-Appellant: Major Matthew J. Neil (ar-
   gued); Colonel Katherine E. Oler and Gerald R. Bruce, Esq.
   (on brief).
   For Appellant/Cross-Appellee: Captain Lauren A. Shure
   (argued); Brian L. Mizer, Esq.


   Chief Judge ERDMANN delivered the opinion of the
   court, in which Judges STUCKY, RYAN, and OHLSON,
   and Senior Judge COX, joined.
                       _______________

   Chief Judge ERDMANN delivered the opinion of the
court.
    Contrary to his pleas, Staff Sergeant Kevin Gay was con-
victed at a general court-martial of two specifications of lar-
ceny, two specifications of wrongful appropriation, one speci-
fication of wire fraud, and one specification of identity theft,
in violation of Articles 121 and 134, UCMJ, 10 U.S.C. §§
921, 934 (2012). Gay was sentenced to a bad-conduct dis-
charge, confinement for six months, forfeiture of all pay and
allowances, and reduction to paygrade E-3. The convening
authority reduced the period of confinement adjudged by
nine days and approved the balance of the sentence. The
United States Air Force Court of Criminal Appeals (CCA)
affirmed the guilty findings but reassessed the sentence and
         United States v. Gay, No. 15-0742/AF & 15-0750/AF
                        Opinion of the Court

approved “a bad conduct discharge, confinement for 3
months and reduction to E-3.” United States v. Gay, 74 M.J.
736, 745 (A.F. Ct. Crim. App. 2015).
    Under Article 66(c), UCMJ, a Court of Criminal Appeals
“may affirm only such findings of guilty and the sentence or
such part or amount of the sentence, as it finds correct in
law and fact and determines, on the basis of the entire rec-
ord, should be approved.” 10 U.S.C. § 866(c). The Judge Ad-
vocate General of the Air Force certified the following issue
to this court:
         WHETHER      THE AIR FORCE COURT OF
         CRIMINAL APPEALS (AFCCA) ABUSED ITS
         DISCRETION AND COMMITTED LEGAL ERROR
         BY REACHING ITS DECISION THAT ARTICLE
         66, UCMJ, GRANTS IT THE AUTHORITY TO
         GRANT     SENTENCE    APPROPRIATENESS
         RELIEF FOR POST-TRIAL CONFINEMENT
         CONDITIONS EVEN THOUGH THERE WAS NO
         VIOLATION OF THE EIGHTH AMENDMENT OR
         ARTICLE     55,  UCMJ,    IN   DIRECT
         CONTRAVENTION OF THIS COURT’S BINDING
         PRECEDENT.1
   We answer the certified issue in the negative and hold
that the CCA did not abuse its discretion in granting sen-
tence appropriateness relief for the post-trial confinement
conditions in this case.2
                           BACKGROUND
    On May 30, 2013, following his conviction, Gay was con-
fined at Monmouth County Correctional Institution (MCCI),
a civilian confinement facility, where he was assigned to a
“pod” in close proximity to a foreign national for nine days
and later placed in solitary confinement. In his clemency


   1   U.S. Const. amend. VIII.
   2   We also specified an issue questioning whether the CCA erred
in failing to remand the case for a United States v. DuBay, 17 C.M.A.
147, 37 C.M.R. 411 (1967), fact-finding hearing under the criteria of
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). As both parties
agree that the CCA did not err in its Ginn analysis, we need not fur-
ther address that issue.




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       United States v. Gay, No. 15-0742/AF & 15-0750/AF
                      Opinion of the Court

submission to the convening authority, Gay referenced an
Article 138, UCMJ, 10 U.S.C. § 938 (2012), complaint he had
filed earlier in which he had requested confinement credit
for being housed with a foreign national in violation of Arti-
cle 12, UCMJ, 10 U.S.C. § 812 (2012).3 Gay also requested
additional confinement credit “for being unnecessarily
placed in maximum security solitary confinement,” which he
alleged amounted to cruel and unusual punishment in viola-
tion of Article 55, UCMJ, 10 U.S.C. § 855 (2012). The con-
vening authority awarded Gay nine days of confinement
credit for the Article 12 violation, but no credit for the al-
leged violation of Article 55.
   As part of his clemency submission Gay submitted a
signed affidavit which averred, in relevant part:
       On 7 June 2013, I was moved into solitary confine-
       ment, which segregated me from the foreign na-
       tional in Pod F-1 and all other inmates. Upon en-
       tering solitary, I was stripped, searched, placed in
       shackles, put on 23 hour per day lockdown, denied
       phone calls and visitation and forced to use an open
       caged shower and bathroom. I was released from
       solitary on 13 June 2013, after [my squadron’s
       superintendant] … came to check on my living ar-
       rangements and discovered what had happened. I
       was immediately removed from solitary per their
       request to the MCCI staff. I am now presently
       housed in Pod F-2 and awaiting transfer to a mili-
       tary confinement facility.
   Gay’s squadron superintendant, Senior Master Sergeant
(SMSgt) Yvette Gerrard, also submitted an affidavit, which
averred in relevant part:
       1. I visited … Gay at [MCCI] on 13 June 2013, and
       I was alarmed to find that [he] was in solitary con-
       finement and brought out in handcuffs and that he
       had been in that condition since 7 June 2013….
       Upon learning of … Gay’s living conditions, we im-


   3  Article 12, UCMJ, provides, “No member of the armed forces
may be placed in confinement in immediate association with ene-
my prisoners or other foreign nationals not members of the armed
forces.” See also United States v. McPherson, 73 M.J. 393, 399-400
(C.A.A.F. 2014) (Baker, C.J., concurring in part and dissenting in
part).



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      United States v. Gay, No. 15-0742/AF & 15-0750/AF
                     Opinion of the Court

      mediately complained to the MCCI staff. [The staff]
      saw to it that … Gay was immediately released
      from solitary confinement and placed in a Pod
      alongside American Citizens….
      2. I learned from the staff at MCCI that MCCI has
      a procedure in place to ensure military members
      are not placed in confinement alongside foreign na-
      tionals or enemy prisoners of war. However, accord-
      ing to MCCI staff they were verbally instructed by
      personnel at Joint Base McGuire-Dix-Lakehurst,
      New Jersey, without explanation, to place … Gay
      in to [sic] corrective or protective custody, … which
      they did without question.
    Before the Air Force Court of Criminal Appeals, Gay ar-
gued that the government violated the Eighth Amendment
and Article 55 by subjecting him to cruel and unusual pun-
ishment by placing him in solitary confinement. Gay, 74
M.J. at 738, 740. Following a comprehensive analysis of
Gay’s Eighth Amendment and Article 55 claims, the CCA
concluded that the conditions alleged by Gay did not rise to
a violation of either provision. Gay, 74 M.J. at 742-43. How-
ever, the court noted that the Eighth Amendment and Arti-
cle 55 determination did not end its analysis:
      Under our broad Article 66(c), UCMJ, authority, we
      retain responsibility in each case we review to de-
      termine whether the adjudged and approved sen-
      tence is appropriate. Under Article 66(c), UCMJ,
      our sentence appropriateness authority is to be
      based on our review of the “entire record,” which
      necessarily includes the appellant’s allegation of
      the conditions of his post-trial confinement. While
      we may not engage in acts of clemency, we hold
      that we may consider post-trial confinement condi-
      tions as part of our overall sentence appropriate-
      ness determination, even where those allegations
      do not rise to the level of an Eight Amendment or
      Article 55, UCMJ, violation.
Gay, 74 M.J. at 743 (citation omitted).
   The CCA held that under the facts of this case, sentence
appropriateness relief was warranted even though Gay’s
post-trial confinement conditions did not constitute an
Eighth Amendment or Article 55 violation. Id. The CCA ex-




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       United States v. Gay, No. 15-0742/AF & 15-0750/AF
                      Opinion of the Court

plained that this relief was warranted for the following rea-
sons:
      1. No valid reason [was] offered for placing [Gay] in
      solitary confinement….
      2. If [Gay] was placed in solitary confinement solely
      to prevent him from being housed with a foreign
      national, th[at] d[id] not constitute an acceptable
      reason for placing [him there].
      3. The unrebutted assertion in [SMSgt Gerrard’s]
      affidavit indicate[d] that some Air Force official di-
      rected [Gay] to be placed in solitary confinement.
      4. When unit leadership complained to MCCI offi-
      cials, [Gay] was easily transferred to another pod
      that did not contain foreign nationals.
   Id. (citation omitted).
                          ARGUMENTS

    The government argues the CCA’s decision to award sen-
tence relief absent an Eighth Amendment or Article 55 vio-
lation constitutes an abuse of discretion because it directly
contravenes this court’s precedent. According to the govern-
ment, United States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004),
and United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), es-
tablish that the “broad power to moot claims of prejudice,” as
announced in United States v. Wheelus, 49 M.J. 283, 288
(C.A.A.F. 1998), arises only after the CCA first acknowledg-
es a legal error or deficiency in the post-trial process. Thus,
the government contends an Eighth Amendment or Article
55 violation is a prerequisite to granting sentence appropri-
ateness relief for post-conviction confinement conditions.
    Gay counters that the CCA’s decision was neither an
abuse of discretion nor a misapplication of precedent. Ac-
cording to Gay, Tardif noted that the Courts of Criminal
Appeals have Article 66(c) authority to tailor appropriate
remedies to the circumstances of the case. Gay further con-
tends the government’s reliance on Fagan is misplaced. Spe-
cifically, Gay asserts Fagan did not hold that the CCAs are
prohibited from granting sentence appropriateness relief
arising from complaints of post-trial confinement conditions.
Rather, Gay interprets Fagan to mean that the CCAs cannot
grant sentence relief prior to employing the factors an-



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      United States v. Gay, No. 15-0742/AF & 15-0750/AF
                     Opinion of the Court

nounced in United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997), to resolve factual disputes between conflicting affida-
vits.
                         DISCUSSION

    We review a Court of Criminal Appeals’ sentence appro-
priateness determination for abuse of discretion. United
States v. Nerad, 69 M.J. 138, 142 (C.A.A.F. 2010). This case
concerns the threshold required for Article 66(c) sentence
appropriateness relief where an appellant has challenged
post-conviction confinement conditions. The scope and
meaning of Article 66(c) is a matter of statutory interpreta-
tion, which, as a question of law, is reviewed de novo. United
States v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015), cert. de-
nied, 136 S. Ct. 915 (2016). Relying primarily on our opinion
in Fagan, supra, the government argues that there must be
a constitutional or statutory violation before a CCA can ex-
ercise its Article 66(c) sentence appropriateness authority
for post-trial confinement conditions.
    In Fagan, the appellant began serving his confinement at
the United States Army Confinement Facility, Europe
(USACFE). 59 M.J. at 240. On appeal to the CCA, Fagan al-
leged that while he was confined at USACFE he was sub-
jected to cruel and unusual punishment, in violation of the
Eighth Amendment and Article 55. Id. In support of his CCA
appeal, Fagan submitted his own affidavit detailing the al-
leged abuse and affidavits from eight other inmates who had
been confined at USACFE prior to Fagan’s arrival. Id. The
government submitted affidavits from USACFE personnel
denying the allegations. Id.
    The CCA determined the affidavits submitted by the par-
ties were in conflict and that the criteria set forth in Ginn,
47 M.J. at 236, would require additional fact-finding. Fagan,
59 M.J. at 240. However, rather than remanding the matter
for a DuBay fact-finding hearing, the CCA decided it could
“moot the issue” by granting sentence relief under Wheelus,
49 M.J. at 283 (internal quotation marks omitted), without
resolving the underlying factual conflict. The CCA subse-
quently reassessed the sentence by approving nineteen
months of the confinement portion of the sentence, rather
than the twenty months approved by the convening authori-



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       United States v. Gay, No. 15-0742/AF & 15-0750/AF
                      Opinion of the Court

ty. United States v. Fagan, 58 M.J. 534, 539 (A. Ct. Crim.
App. 2003).
    On appeal, this court considered whether the CCA erred
when it failed to order a DuBay hearing, and whether it had
authority to grant Article 66(c) relief in lieu of a DuBay
hearing. We held that “[t]he Ginn framework requires a
DuBay hearing … if the opposing affidavits raise a fact dis-
pute that is ‘material’ to the resolution of the post-trial claim
and the claim cannot be otherwise resolved through applica-
tion of the five Ginn factors.” Fagan, 59 M.J. at 243 (cita-
tions omitted).
    We acknowledged that, in Wheelus, we had referred to
the CCAs’ “broad power to moot claims of prejudice” by exer-
cising their Article 66(c) authority. Fagan, 59 M.J. at 244
(internal quotation marks omitted); see also Wheelus, 49
M.J. at 288. However, we clarified in Fagan that “[i]t is not a
‘broad power to moot claims of prejudice’ in the absence of
an acknowledged legal error or deficiency, nor is it a mecha-
nism to ‘moot claims’ as an alternative to ascertaining
whether a legal error or deficiency exists in the first place.”
Fagan, 59 M.J. at 244. We concluded by holding: “However
‘broad’ it may be, the ‘power’ referred to in Wheelus does not
vest the Court of Criminal Appeals with authority to elimi-
nate [the fact-finding] determination and move directly to
granting sentence relief to Fagan.” Id.
    However, in discussing these issues, we explained, “[i]n
terms of Fagan’s claim, he may be entitled to relief if he did
in fact suffer a violation of the rights guaranteed him by the
Eight Amendment and Article 55.” Id. Accordingly, this lan-
guage, relied on here by the government, was simply a
recognition of Fagan’s underlying claims in that case. We
did not address the issue raised by the government in this
case – whether an Eighth Amendment or Article 55 violation
is a prerequisite to Article 66(c) sentence appropriateness
relief for post-trial confinement conditions. The govern-
ment’s reliance on Fagan is therefore misplaced.
   The language of Article 66(c) states that a CCA “may”
approve only that part of a sentence that it finds “should be
approved.” 10 U.S.C. § 866(c) (2012). The statute clearly es-
tablishes a discretionary standard for sentence appropriate-



                               7
       United States v. Gay, No. 15-0742/AF & 15-0750/AF
                      Opinion of the Court

ness relief awarded by the Courts of Criminal Appeals. See,
e.g., United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)
(recognizing that “the sentence review function of the Courts
of Criminal Appeals is highly discretionary”); see also United
States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016) (explain-
ing with regard to the discretionary authority of the CCAs
under Article 66(d) that, “[t]he statute says … a CCA may
order a rehearing; it does not say that it must. ‘May’ is a
permissive term, see United States v. Moss, 73 M.J. 64, 68
(C.A.A.F. 2014), and indicates that Congress intended to
provide the CCAs with discretion on this point”).
    While the government argues there is no standard for
the CCAs to apply in their discretionary analysis, both
Wheelus and Fagan require a legal error or deficiency. How-
ever, we have never held, as the government argues, that
the legal error or deficiency must rise to the level of an
Eighth Amendment or Article 55 violation in post-trial con-
finement conditions cases. Indeed, distinguishing Article
66(c) from the constraints Article 59(a), UCMJ, places on the
authority of the CCAs,4 we have interpreted the former as
requiring that the CCA be satisfied that the findings and
sentence are: (1) “correct in law” and (2) “correct in fact,” and
(3) that it “determine[], on the basis of the entire record, [the
findings and sentence] should be approved.” Tardif, 57 M.J.
at 223-24 (emphasis added) (internal quotation marks omit-
ted) (citation omitted).
    In this case, the CCA found that the sentence was inap-
propriate in part because Gay was placed in solitary con-
finement through no fault of his own.5 The CCA supported
its determination by acknowledging: (1) there was no valid

   4  Under Article 59(a), “[a] finding or sentence of a court-
martial may not be held incorrect on the ground of an error of law
unless the error materially prejudices the substantial rights of the
accused.” 10 U.S.C. § 859(a) (2012).
   5  The CCA concluded Gay’s sentence was inappropriately se-
vere “both on the basis of his post-trial confinement conditions and
the government’s delay in forwarding the record of trial for [its]
review.” Gay, 74 M.J. at 745. As neither party has addressed
whether the post-trial processing delay would provide a basis for
awarding sentence appropriateness relief, we restrict our analysis
to the post-trial confinement conditions.



                                 8
       United States v. Gay, No. 15-0742/AF & 15-0750/AF
                      Opinion of the Court

reason for placing Gay in solitary confinement; (2) avoiding
additional Article 12 violations was not an acceptable reason
to place him in solitary confinement, see McPherson, 73 M.J.
at 399-400 (Baker, C.J., concurring in part and dissenting in
part) (disapproving of the possibility that servicemembers
might be placed in solitary confinement regardless of their
behavior to avoid giving rise to relief under Article 12); (3)
the assertion that an Air Force official directed that Gay be
placed in solitary was unrebutted; and, (4) Gay was easily
transferred to a pod that did not house foreign nationals
once his unit complained of his treatment. Gay, 74 M.J. at
743.
    These reasons evidence a legal deficiency in the post-trial
confinement conditions to which Gay was subjected. Specifi-
cally, the faulty post-trial process in this case, which was
sparked by a legal error, namely a violation of Article 12,
contravened established standards for when solitary con-
finement is warranted. As the CCA explained, its conclusion
was based, in part, on the fact that solitary confinement was
imposed for an improper purpose – Gay did not engage in
behavior that would have warranted solitary placement; the
conditions of confinement were more severe than what he
should have experienced; and the confinement was ordered
by an Air Force official to avoid Article 12 violations where
an alternative solution was available. While the CCA found
that the conditions did not rise to the level of an Eighth
Amendment or Article 55 violation, those conditions provide
support for the exercise of the CCA’s discretionary sentence
appropriateness authority.6



   6  Alternatively, the CCA could have also found legal error
warranting the application of its sentence appropriateness author-
ity through Article 58(a), UCMJ, 10 U.S.C. § 858(a) (2012), which
establishes that “[p]ersons … confined in a penal or correctional
institution not under the control of one of the armed forces are
subject to the same discipline 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 institution is situated.”
The actions of Air Force officials in response to an alleged Article
12, UCMJ, issue led to Gay being inappropriately placed in soli-
tary confinement through a process that would not have applied to
MCCI’s State prisoner population. Therefore, the CCA could have


                                 9
       United States v. Gay, No. 15-0742/AF & 15-0750/AF
                      Opinion of the Court

    In reaching this conclusion, we do not recognize unlim-
ited authority of the Courts of Criminal Appeals to grant
sentence appropriateness relief for any conditions of post-
trial confinement of which they disapprove. Rather, we hold
that the Air Force Court of Criminal Appeals’ decision to
grant sentence appropriateness relief in this case was based
on a legal deficiency in the post-trial process and, thus, was
clearly authorized by Article 66(c).
                           DECISION

   The certified question is answered in the negative and
the opinion of the United States Air Force Court of Criminal
Appeals is affirmed. The CCA did not abuse its discretion
when it exercised its Article 66(c) sentence reassessment au-
thority for post-trial confinement conditions despite its con-
clusion that the conditions did not rise to a violation of the
Eighth Amendment or Article 55.




found legal error based on Article 58(a) because Gay was not “sub-
ject to the same discipline and treatment” as State prisoners.




                               10
