           UNITED STATES, Appellant and Cross-Appellee

                                         v.

               Jimmy L. WILSON, Technical Sergeant
          U.S. Air Force, Appellee and Cross-Appellant

                        Nos. 13-0157 and 14-5003

                           Crim. App. No. 37897

       United States Court of Appeals for the Armed Forces

                            Argued June 4, 2014

                         Decided August 21, 2014

STUCKY, J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. BAKER, C.J., filed a
separate dissenting opinion.


                                     Counsel


For Appellant and Cross-Appellee: Major Daniel J. Breen
(argued); Lieutenant Colonel C. Taylor Smith and Gerald R.
Bruce, Esq. (on brief).


For Appellee and Cross-Appellant:             Captain Thomas A. Smith
(argued).

Military Judge:    Terry A. O’Brien

            THIS OPINION IS SUBJECT TO RECISION BEFORE FINAL PUBLICATION.
United States v. Wilson, Nos. 13-0157/AF & 14-5003/AF


     Judge STUCKY delivered the opinion of the Court.

     After the United States Air Force Court of Criminal Appeals

(CCA) affirmed the findings and sentence in Technical Sergeant

(TSgt) Wilson’s case, United States v. Wilson (Wilson I), No.

ACM 37897, 2012 CCA LEXIS 385, 2012 WL 5392330 (A.F. Ct. Crim.

App. Oct. 12, 2012) (per curiam) (unpublished), this Court

reversed.   United States v. Wilson (Wilson II), 72 M.J. 447

(C.A.A.F. 2013).   We directed the CCA to consider on remand a

specified issue:   whether Article 12, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 812 (2012), applies to a military

member confined in a state or federal institution in the United

States.   Wilson II, 72 M.J. at 447.    The court below answered

this question in the affirmative.     United States v. Wilson

(Wilson III), 73 M.J. 529, 533 (A.F. Ct. Crim. App. 2014).      The

United States Air Force Judge Advocate General then certified

the same issue to this Court to decide.    United States v.

Wilson, 73 M.J. 243 (C.A.A.F. 2014) (notice of filing of

certificate of review).   We hold that we have jurisdiction to

decide this question and, consistent with United States v.

McPherson, __ M.J. __, __ (2) (C.A.A.F. 2014), we affirm the

CCA’s judgment that Article 12 applies to military members

without geographic limitation.1


1
  In doing so, we also deny review of the two issues TSgt Wilson
raised in his cross-petition.

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United States v. Wilson, Nos. 13-0157/AF & 14-5003/AF


                           I.   Background

     A general court-martial composed of officer and enlisted

members convicted TSgt Wilson of a single specification of

failing to obey orders.    Article 92, UCMJ, 10 U.S.C. § 892

(2012).   The convening authority approved the adjudged sentence:

a bad-conduct discharge, confinement for three months, and

reduction to the grade of E-2.    TSgt Wilson served his sentence

to confinement at a civilian jail in Cook County, Georgia.

Wilson III, 73 M.J. at 534.

     Because Article 12 prohibits confining American military

prisoners in immediate association with foreign nationals, and

because the Cook County Jail had no methodology for identifying

which prisoners were foreign nationals, jail officials kept TSgt

Wilson in a single cell segregated from other prisoners to avoid

an Article 12 violation.   Id. at 530.    TSgt Wilson requested

clemency multiple times from the convening authority due to

what, in effect, amounted to solitary confinement.    TSgt Wilson

also appealed to the CCA, claiming his solitary confinement

amounted to cruel and unusual punishment in violation of Article

55, UCMJ, 10 U.S.C. § 855 (2012).     Wilson I, 2012 CCA LEXIS 385,

at *2, 2012 WL 5392330, at *1.

     The CCA affirmed the findings and sentence.     Id. at *4,

2012 WL 5392330, at *2.    TSgt Wilson appealed to this Court.

United States v. Wilson, 72 M.J. 4 (C.A.A.F. 2012) (notice of


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United States v. Wilson, Nos. 13-0157/AF & 14-5003/AF


filing of petition for grant of review).        We reversed the

decision of the court below and specified the Article 12 issue.

Wilson II, 72 M.J. 447.

     On remand, the CCA held that Article 12, UCMJ, “applies to

members of the armed forces ‘everyplace,’ to include confinement

facilities within the continental United States.”       Wilson III,

73 M.J. at 533 (quoting Uniform Code of Military Justice:

Hearings on H.R. 2498 Before a Subcomm. of the H. Comm. on Armed

Servs., 81st Cong. 914-15 (1949), reprinted in Index and

Legislative History, Uniform Code of Military Justice (1950)

(not separately paginated)).     The case is now before us on the

Judge Advocate General’s certification on the same issue we

originally specified.

                           II.   Jurisdiction

     TSgt Wilson responded to the certified issue only by

stating that it is nonjusticiable because there is no case or

controversy and any opinion rendered by this Court would be

advisory.   We disagree.

     This Court has statutory jurisdiction to review the

CCA’s decision under Article 67(a)(2), UCMJ, which provides

that this Court shall review “all cases reviewed by a Court

of Criminal Appeals which the Judge Advocate General orders

sent to [this Court] for review.”       10 U.S.C. § 867 (2012).




                                    4
United States v. Wilson, Nos. 13-0157/AF & 14-5003/AF


     Contrary to TSgt Wilson’s assertion, there is a justiciable

case and controversy before this Court.    The CCA has rendered a

“final action” in Appellee’s case by deciding the Article 12

issue.   See LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F. 2013)

(holding that, where the CCA took a final action on a petition

for extraordinary relief, this Court had jurisdiction over the

certificate submitted by the Judge Advocate General pursuant to

Article 67(a)(2), UCMJ).    Here, the applicability of Article 12

to TSgt Wilson is interwoven with the resolution of his

complaints about confinement conditions.    This Court thus has

jurisdiction over the certified issue in this case.

                       III.    Certified Issue

     Consistent with McPherson, we now answer the certified

issue in the affirmative:     Article 12’s prohibition on confining

military members in immediate association with foreign nationals

does apply to TSgt Wilson as a confinee in a civilian jail in

the United States.   Article 12 was not violated in TSgt Wilson’s

case because he was confined alone.    As the CCA held, though,

TSgt Wilson is not entitled to relief for his complaints

concerning the conditions of his confinement.2    Wilson III, 73

M.J. at 534.


2
  TSgt Wilson’s request that the convening authority defer
confinement as a matter of clemency hardly constitutes
exhaustion of administrative remedies concerning conditions of
confinement.

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United States v. Wilson, Nos. 13-0157/AF & 14-5003/AF


                          IV.   Decision

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Wilson, Nos. 13-0157/AF & 14-5003/AF


     BAKER, Chief Judge (dissenting):

     I respectfully dissent consistent with my separate opinion

in United States v. McPherson, __ M.J. __, __ (C.A.A.F. 2014)

(Baker, C.J., dissenting).
