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

                               No. ACM 39069
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                       Harrison B. LINTHICUM
            First Lieutenant (O-2), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 21 November 2017
                          ________________________

Military Judge: Marvin W. Tubbs II.
Approved sentence: Dismissal and confinement for 5 months. Sentence
adjudged 1 March 2016 by GCM convened at Keesler Air Force Base,
Mississippi.
For Appellant: Captain Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel G. Matt Osborn, USAF; Major Mary
Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and DENNIS, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge HARDING and Judge DENNIS joined.
                          ________________________

This is an unpublished opinion and, as such, does not serve as prece-
       dent under AFCCA Rule of Practice and Procedure 18.4.

                          ________________________

SPERANZA, Judge:
    A military judge sitting as a general court-martial found Appellant guilty,
consistent with his pleas pursuant to a pretrial agreement, of willful derelic-
tion of duty for bringing an unregistered firearm onto base, wrongful use and
                     United States v. Linthicum, No. ACM 39069


possession of oxycodone, and fraternization in violation of Articles 92, 112a,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a,
934. The military judge sentenced Appellant to a dismissal and confinement
for five months. The convening authority approved the adjudged sentence.
    On appeal, Appellant raises the following errors: (1) his command refused
to intervene when he was denied access to prescribed care while passing kid-
ney stones in post-trial confinement, and (2) he was denied effective assis-
tance of counsel. 1 We find no prejudicial error and affirm.

                                   I. BACKGROUND
    Appellant used oxycodone he purchased from a drug dealer. Investigators
eventually apprehended Appellant on base, seizing a bag of oxycodone pills
and an unregistered firearm from his vehicle. Urinalysis tests confirmed Ap-
pellant’s oxycodone abuse. The United States Army Criminal Investigation
Laboratory confirmed the seized pills were oxycodone pills.
  Appellant also fraternized with a reserve enlisted member, whom he later
married.

                                    II. DISCUSSION
A. Post-trial Confinement Conditions
    Appellant was a nurse practitioner who suffered from kidney stones
among other ailments that are discussed later. Appellant served his confine-
ment in a civilian jail. Members of Appellant’s unit visited Appellant at the
jail and monitored his well-being. Air Force confinement officials also moni-
tored Appellant’s confinement conditions and well-being. Appellant main-
tained access to his previously prescribed medications while in confinement.
   Approximately one month into his term of confinement, Appellant passed
kidney stones. He received medical attention and treatment upon request.
   After approximately another month, Appellant, still in confinement, be-
gan passing more kidney stones. Appellant notified the corrections officer.
When Appellant’s condition worsened, the jail medical professionals respond-
ed by transporting Appellant to a local hospital where doctors determined
Appellant suffered from passable kidney stones that did not require further
medical attention. Appellant was returned to the jail to pass the kidney
stones with the help of newly prescribed medications—a pain reliever and


1   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).




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                    United States v. Linthicum, No. ACM 39069


medicine to dilate his urethra. The jail promptly informed Air Force confine-
ment officials of Appellant’s medical condition and the jail’s response. In
turn, the military confinement officials consulted on-base medical profession-
als who confirmed Appellant received appropriate care.
   Upon returning to the civilian jail, Appellant remained in medical hold for
one day, then returned to his cell. Appellant passed his kidney stones over
the following three days. Members of Appellant’s unit visited Appellant with-
in a few days after Appellant passed the kidney stones. Appellant claimed
that he was “better,” but did not receive his medications in a timely manner.
Medication logs indicated Appellant received his medications in accordance
with medical instructions.
    In his clemency submissions to the convening authority, Appellant main-
tained that the lack of “proper treatment for his pain and kidney stone” justi-
fied, in part, relief. The convening authority waived mandatory forfeitures for
the benefit of Appellant’s dependents, but declined to grant Appellant further
clemency.
   Although Appellant lodged no formal complaints with civilian or military
authorities, he now asks us to set aside his dismissal, arguing that he was
“denied access to prescribed medication while experiencing a painful medical
emergency,” 2 in violation of the Eighth Amendment 3 and Article 55, UCMJ,
10 U.S.C. § 855. Appellant alternatively demands we set aside his dismissal
pursuant to our authority under Article 66(c), UCMJ, in order to “send a clear
message regarding the significance of [the Government’s] responsibility [to
respond to medical requests], and . . . to ensure similar indifference does not
happen in the future.”
    The Eighth Amendment to the United States Constitution prohibits the
infliction of “cruel and unusual punishment.” 4
   Article 55, UCMJ, likewise prohibits cruel and unusual punishments,
providing:
          Punishment by flogging, or by branding, marking, or tattooing
          on the body, or any other cruel or unusual punishment, may

2 Although neither party requested additional fact-finding, we nonetheless applied
the principles announced in United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997),
to the entire record of Appellant’s trial and concluded we could resolve this issue
without additional fact-finding.
3   U.S. CONST. amend. VIII.
4   Id.




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                   United States v. Linthicum, No. ACM 39069


       not be adjudged by a court-martial or inflicted upon any person
       subject to this chapter. The use of irons, single or double, ex-
       cept for the purpose of safe custody, is prohibited.
10 U.S.C. § 855.
       In general, we apply the Supreme Court’s interpretation of the
       Eighth Amendment to claims raised under Article 55, UCMJ,
       except where legislative intent to provide greater protections
       under Article 55, UCMJ, is apparent. United States v. Avila, 53
       M.J. 99, 101 (C.A.A.F. 2000) (citing United States v. Wappler, 2
       C.M.A. 393, 9 C.M.R. 23, 26 (C.M.A. 1953)).
United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015), aff’d, 75
M.J. 264 (C.A.A.F. 2016).
    “[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.” Id. (citing United States v. Lovett, 63 M.J. 211, 215
(C.A.A.F. 2006)) (internal quotation marks omitted).
       A violation of the Eighth Amendment is shown by demonstrat-
       ing: “(1) an objectively, sufficiently serious act or omission re-
       sulting in the denial of necessities; (2) a culpable state of mind
       on the part of prison officials amounting to deliberate indiffer-
       ence to [the appellant’s] health and safety; and (3) that [the
       appellant] has exhausted the prisoner-grievance sys-
       tem . . . and that he has petitioned for relief under Article 138,
       UCMJ.”
Id. (citing Lovett, 63 M.J. at 215) (alteration in original) (footnotes omitted)
(internal quotation marks omitted).
    Under Article 66(c), UCMJ, we “may affirm only such findings of guilty
and the sentence or such part or amount of the sentence, as we find correct in
law and fact and determine, on the basis of the entire record, should be ap-
proved.” 10 U.S.C. § 866(c). In United States v. Gay, a panel of this court in-
voked Article 66(c) to grant the appellant sentencing relief even in the ab-
sence of cruel or unusual punishment in violation of the Eighth Amendment
and Article 55, UCMJ. Gay, 74 M.J. at 743. On review, the Court of Appeals
for the Armed Forces (CAAF) held that this court did not abuse its discretion
in doing so. United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016). However,
the CAAF noted that Gay involved unique facts driven by legal errors in the
post-trial process that included both a violation of the appellant’s rights un-
der Article 12, UCMJ, 10 U.S.C. § 812, and the ordering of solitary confine-
ment by an Air Force official where an alternative solution was available. Id.

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                 United States v. Linthicum, No. ACM 39069


Significantly, the CAAF emphasized, “[i]n reaching this conclusion, we do not
recognize unlimited authority of the Courts of Criminal Appeals to grant sen-
tence appropriateness relief for any conditions of post-trial confinement of
which they disapprove.” Id. Accordingly, “[o]nly in very rare circumstances do
we anticipate granting sentence relief when there is no violation of the
Eighth Amendment or Article 55, UCMJ.” United States v. Ferrando, ___
M.J. ___, No. ACM 39039, 2017 CCA LEXIS 655, at *30 (A.F. Ct. Crim. App.
16 Oct. 2017).
    As an initial matter, we note that kidney stones—not prison officials us-
ing irons, flogging, branding, marking, tattooing, or any other cruel or unusu-
al punishment—inflicted the pain Appellant undeniably suffered in confine-
ment. Prison officials, to include medical professionals, responded to and
treated Appellant’s medical condition. Although Appellant is dissatisfied with
the level of care he received, we cannot say the medical treatment he received
was “incompatible with the evolving standards of decency that mark the pro-
gress of a maturing society.” Lovett, 63 M.J. at 215. Moreover, prison officials
responding to Appellant’s passing of kidney stones did not do so with a culpa-
ble state of mind amounting to deliberate indifference to his health and safe-
ty. See id. To the contrary, Appellant received medical care upon request; al-
beit not to his subjective standard of care. Finally and importantly, Appel-
lant’s case does not present evidence to suggest he exhausted administrative
avenues to address his complaint.
    The CAAF emphasized, “A prisoner must seek administrative relief prior
to invoking judicial intervention to redress concerns regarding post-trial con-
finement conditions.” United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007).
This requirement “promot[es] resolution of grievances at the lowest possible
level [and ensures] that an adequate record has been developed [to aid appel-
late review].” Id. at 471 (quoting United States v. Miller, 46 M.J. 248, 250
(C.A.A.F. 1997)) (alteration in original). An appellant must show that “absent
some unusual or egregious circumstance . . . he has exhausted the prisoner-
grievance system [in his detention facility] and that he has petitioned for re-
lief under Article 138.” Id. (quoting United States v. White, 54 M.J. 469, 472
(C.A.A.F. 2001)) (alteration in original) (emphasis added). Appellant failed to
make such a showing. While Appellant’s complaint to the convening authori-
ty during clemency could be viewed as a de facto Article 138, UCMJ, com-
plaint, Appellant did not utilize, much less exhaust, the civilian jail’s griev-
ance system in order to remedy his perceived mistreatment. See Wise, 64 M.J.
at 470 (“Exhaustion requires Appellant to demonstrate that two paths of re-
dress have been attempted, each without satisfactory result.); cf. United
States v. Towns, 52 M.J. 830, 834 (A.F. Ct. Crim. App. 2000). Simply put, Ap-
pellant was not subjected to cruel or unusual punishment.



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                  United States v. Linthicum, No. ACM 39069


    Nonetheless, we currently consider whether or not Appellant’s claims
warrant sentence relief under Article 66(c). See generally, Gay, 74 M.J. 736.
Appellant’s complaint can be summarized like this—his unit’s “indifference”
caused him to needlessly suffer kidney stone pain because his unit failed to
intervene on his behalf when he did not receive the type of medical care he
believed he should. In assessing Appellant’s complaint, we begin by again
noting that he failed to utilize, let alone exhaust, his confinement facility’s
grievance system. However, Appellant’s unit (medical professionals) and Air
Force confinement officials were aware of Appellant’s condition and his
treatment. Appellant was not being denied medical care. He maintained ac-
cess to all of his prescribed medications and records indicate he was provided
these medications. Military officials determined Appellant was receiving ap-
propriate care for his condition while in confinement. Thus, we decline Appel-
lant’s invitations to resolve differences of opinion regarding his medical care
or to decide what he presumably proclaims to be medical malpractice. In so
doing, we emphasize that “[w]hile we have granted sentence relief based up-
on conditions of post-trial confinement where a legal deficiency existed, we
are not a clearing house for post-trial confinement complaints or grievances.”
Ferrando, 2017 CCA LEXIS 655, at *30. Plainly, Appellant’s assertions do
not warrant the extraordinary use of our Article 66(c) power to grant sen-
tence relief. 5
B. Effectiveness of Counsel
    During his service, Appellant suffered from neck, back, and other pain
that required surgery. Prior to trial, Appellant was also battling his ex-wife
for custody of their daughter.
   Defense counsel advised Appellant, inter alia, about the consequences of a
dismissal on his ability to receive medical benefits. In addition to the loss of
potential benefits, Appellant remained concerned that lengthy confinement
would impact his child custody case.
    Less than two months after arraignment and approximately one week be-
fore trial, Appellant signed a pretrial agreement offer in which he certified



5 Although not raised in his assignments of error, Appellant complained of several
other post-trial confinement conditions in a declaration. We considered these condi-
tions and find that they do not amount to cruel or unusual punishment in violation of
the Eighth Amendment or Article 55, UCMJ. We also find that none of those other
conditions warrant the extraordinary use of our Article 66(c), UCMJ, power to grant
sentence relief.




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                 United States v. Linthicum, No. ACM 39069


that he was satisfied with his defense counsel and considered them compe-
tent to represent him. In this offer, Appellant also asserted the following:
       My defense counsel fully advised me of the nature of the charg-
       es and specifications against me, the possibility of my defend-
       ing against them, any defenses that might apply, and the effect
       of the guilty plea that I am offering to make, and I fully under-
       stand their advice and the meaning, effect, and consequences of
       this plea.
    Per the terms of the pretrial agreement, the convening authority agreed
not to approve any confinement in excess of six months. However, as trial ap-
proached, Appellant’s concerns focused on his child custody case. Thus, Ap-
pellant sought to further limit the amount of confinement that could be ad-
judged. On the day before trial, Appellant asked his defense counsel if re-
questing a dismissal in his unsworn statement would decrease the amount of
adjudged confinement. Appellant’s defense counsel advised him that the mili-
tary judge would appropriately consider such a request, but reminded Appel-
lant of a punitive discharge’s impact on any potential medical benefits. The
morning of trial, Appellant informed his defense counsel that he was going to
request a dismissal in the hope of reducing any adjudged confinement. Ac-
cordingly, Appellant’s defense counsel reduced their advice—and Appellant’s
decision to request a dismissal against their advice—to writing.
    Appellant and both defense counsel signed a memorandum prior to trial.
The memorandum included a paragraph titled “Veteran’s Benefits.” This
paragraph advised Appellant the following:
       If you are sentenced to a dismissal as part of your punishment
       in a Court-Martial, your veteran’s benefits may be limited or
       lost entirely. It is your choice whether to request a dismissal as
       part of your sentence and you are not required to request or not
       request a dismissal it [sic] at all. Knowing this, you have cho-
       sen to request a dismissal as part of your oral unsworn state-
       ment.
    Appellant initialed a paragraph summarizing his decision as follows: “I
have been fully advised as to the repercussions of a dismissal at a Court-
Martial on my VA benefits and freely choose to request a dismissal as part of
my unsworn statement against the recommendation of my attorneys.” Appel-
lant also certified that he “read and discussed the above rights and issue with
[his] attorneys.”
    At sentencing, the military judge admitted, as a defense exhibit, a written
unsworn statement from Appellant in which Appellant asserted the follow-
ing: “I am currently in the process of a Medical Evaluation Board for my back


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                 United States v. Linthicum, No. ACM 39069


and neck and the ongoing pain. If I am dismissed from the service with a pu-
nitive dismissal [sic], I will lose any chance at any VA benefits to help me
with my back and neck.”
    After the military judge admitted all of the offered defense exhibits, Ap-
pellant’s counsel asked the military judge to read Appellant’s written un-
sworn statement before Appellant provided an oral unsworn statement “to
put in context what [Appellant will] say while he’s giving his oral unsworn
statement.” The military judge examined the written unsworn statement and
allowed Appellant to proceed with an oral unsworn statement. In his oral
unworn statement, Appellant claimed the following: “Although I do not want
to lose the potential to receive VA benefits for my injuries, I would rather re-
ceive a dismissal and no jail time to avoid losing custody of my kids, and the
progress that I have made in my recovery. Their future depends on it.”
    Appellant’s request for a dismissal in lieu of “jail time” caused the mili-
tary judge to engage Appellant in the following inquiry after the defense rest-
ed its sentencing case:
       [MJ] Do you understand that the only discharge this court
       could adjudge is a dismissal?
       ACC: Yes, sir.
       MJ: Do you understand that a dismissal would forever adverse-
       ly stigmatize the character of your military service and it will
       limit your future employment and schooling opportunities?
       ACC: Yes, sir.
       MJ: Do you understand that a dismissal may adversely affect
       your future with regard to legal rights, economic opportunities,
       and social acceptability?
       ACC: Yes, sir.
       MJ: Do you understand that by being dismissed you will lose
       substantially all benefits from the Department of Veterans Af-
       fairs [(VA)], as well as the Air Force establishment, as well as
       other benefits normally given by other government agencies?
       ACC: Yes, sir.
       MJ: Have you thoroughly discussed these desires with your de-
       fense counsel?
       ACC: Yes, sir.
       MJ: Do you believe you fully understand the ramifications of a
       dismissal?


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                 United States v. Linthicum, No. ACM 39069


       ACC: Yes, sir.
       MJ: Are you aware that if you do not receive a dismissal, then
       your chain-of-command may very well try to administratively
       separate you from the service?
       ACC: Yes, sir.
       MJ: Are you aware that an administrative separation is con-
       sidered much less severe than a dismissal from a court-martial
       and will not stigmatize you with the devastating and long-term
       effects of a dismissal from a court-martial?
       ACC: Yes, sir.
       MJ: Knowing all that and what your defense counsel has ex-
       plained to you, you did express a preference for a dismissal to
       lengthy jail time?
       ACC: Yes, sir.
       MJ: And you did express that knowing all of those things I just
       discussed with you and what your defense counsel has dis-
       cussed with you?
       ACC: Yes, sir.
    After trial, Appellant declared that his “medical case was referred to
[medical evaluation board]” and he was notified he “received a disability rat-
ing of one-hundred percent with the VA.”
    On appeal, Appellant incredibly claims that “[h]ad [he] known that [he]
would be eligible for a medical retirement and VA disability benefits, [he]
would have never requested a dismissal from the military judge.” He attrib-
utes his decision to “incorrect advice” he received from his counsel, who he
now contends told him that he “could not be medically retired because [his]
resignation-in-lieu-of court-martial and medical retirement had been denied.”
    In response to Appellant’s claim, we ordered and received declarations
from Appellant’s defense counsel. Defense counsel’s declarations addressed
the specific allegations raised by Appellant and included the memorandum
initialed and signed by Appellant.
    The Sixth Amendment guarantees Appellant the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984).
   Accordingly, “an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.”


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                   United States v. Linthicum, No. ACM 39069


United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland,
466 U.S. at 687). “The Strickland test applies in the context of guilty pleas
where an appellant challenges the plea based on ineffective assistance of
counsel.” United States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012) (citing Hill
v. Lockhart, 474 U.S. 52, 58 (1985)).
    In determining whether counsel’s performance was deficient, we “must
indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Ap-
pellant must therefore establish that counsel’s “representation amounted to
incompetence under ‘prevailing professional norms.’” Harrington v. Richter,
562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
    To prevail on his ineffective assistance of counsel claim, Appellant must
also establish that he was prejudiced. Rose, 71 M.J. at 144. In the context of a
guilty plea, the prejudice question is whether “there is a reasonable probabil-
ity, but for counsel’s errors, [Appellant] would not have pleaded guilty and
would have insisted on going to trial.” Id. (quoting Hill, 474 U.S. at 59).
   We review allegations of ineffective assistance of counsel de novo. United
States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing United States v.
Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).
    The record in Appellant’s case, to include his defense counsels’ declara-
tions and the memorandum he signed and initialed, refutes Appellant’s inef-
fective assistance of counsel allegations. 6 Defense counsel’s explanations and
actions in this case were reasonable, and their level of advocacy was at or
above the performance ordinarily expected of fallible lawyers. See Gooch, 69
M.J. at 362. Accordingly, we find that defense counsel competently represent-
ed Appellant. Appellant’s defense counsel were presumed to be competent
and Appellant failed to overcome that presumption. Moreover, Appellant
failed to establish prejudice, as we find no reasonable probability—given the
record of this case and Appellant’s specious allegation of ineffective assis-
tance of counsel—that Appellant would have pleaded not guilty and insisted
on going to trial. Appellant has not demonstrated (1) that his defense coun-
sels’ performances were deficient and (2) that any deficiency resulted in prej-
udice. Consequently, Appellant’s ineffective assistance of counsel claim is
without merit.


6 Having applied the principles announced in Ginn, 47 M.J. at 248, and considered
the entire record of Appellant’s trial, a guilty plea during which he expressed his sat-
isfaction with trial defense counsel, we find we can resolve Appellant’s ineffective
assistance of counsel claim without additional fact-finding.




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                United States v. Linthicum, No. ACM 39069


                             III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.


                FOR THE COURT


                KATHLEEN M. POTTER
                Acting Clerk of the Court




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