UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             BURTON, HAGLER, and FLEMING
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                         Specialist ANDREW W. BOWHALL
                           United States Army, Appellant

                                     ARMY 20170357

                              Headquarters, Fort Bliss
                          Michael J. Hargis, Military Judge
                   Colonel Charles C. Poché, Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Captain Patrick G.
Hoffman, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Hannah E. Kaufman, JA (on brief).


                                     13 February 2019
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Senior Judge:

       In his lone assignment of error, appellant asserts he was subjected to cruel and
unusual punishment when he temporarily failed to receive treatment for thyroid
cancer while in post-trial confinement. At a minimum, we find appellant cannot
establish that prison officials were deliberately indifferent to his medical needs.

       While not expressly raised by appellant, we also address: (1) whether the
convening authority abused his discretion in failing to defer appellant’s confinement
to avoid delaying his cancer treatment; and (2) whether appellant’s sentence is
inappropriately severe in light of his post-trial submissions. Under the specific facts
of this case, we find no relief is warranted.
BOWHALL—ARMY 20170357

                                   BACKGROUND

       On 14 June 2017, appellant pleaded guilty to one specification of sexual
assault of a child and one specification of adultery. 1

       During sentencing, the defense presented testimony from appellant’s
supervisor, Staff Sergeant (SSG) DB, regarding appellant’s cancer treatments and
surgeries. The defense also presented an unsworn statement from appellant. Among
other things, appellant said, “I just went through a major surgery for my second bout
of cancer,” “I have been told [the cancer will] likely . . . spread again,” and “I don’t
know how much time I do have left in this life.”

      In rebuttal, the government presented testimony from Mr. MH, a Special
Victim Witness Liaison, which included the following exchange:

             Q. . . . And to the best of your knowledge would someone
             with cancer be able to obtain treatment while they are
             incarcerated?

             A. Yes, sir. Part of what is sent is the medical records
             along with, like I said, on the confinement procedures
             checklist the physician would be listed with a phone
             number for that physician if they need to contact the
             physician for exact advice as to what treatment had they
             already prescribed and then what treatment they are going
             to continue with.

      The military judge sentenced appellant to a dishonorable discharge,
confinement for three years, and reduction to the grade of E-1. 2


1
 A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of sexual assault of a child and one specification of
adultery, in violation of Articles 120b and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 920b, 934 (2012) (UCMJ). The military judge sentenced appellant to a
dishonorable discharge, confinement for three years, and reduction to the grade of E-
1. The convening authority approved only so much of the sentence as provided for a
dishonorable discharge, confinement for eighteen months, and reduction to the grade
of E-1.
2
 Upon reviewing the quantum portion of the pretrial agreement, the military judge
noted the convening authority was required to disapprove any confinement in excess
of eighteen months but could approve any other lawfully adjudged punishment.




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BOWHALL—ARMY 20170357

      That same day, appellant’s trial defense counsel submitted a “Request for
Deferral of Confinement and Deferment/Waiver of Forfeitures” to the convening
authority. This request explained that appellant “has recurring thyroid cancer,” “had
surgery twice to remove the cancer and received extensive chemotherapy,” and
“[c]onfinement will interfere with his ability to receive quality medical treatment.”

       On 21 June 2017, appellant’s assistant trial defense counsel prepared a
“Memorandum for Record” regarding the “Inadequacy of Medical Treatment for
Specialist Andrew Bowhall at Otero County Prison Facility,” where he was taken
“on a temporary basis pending transfer to a long-term confinement facility.”
Among other things, the memorandum outlined several issues with appellant’s
medications during his first week in confinement. Initially, appellant “had not
received any medication,” which led to “pain and swelling so severe in his neck area
that he could not breathe.” Appellant subsequently received “some of his
medications,” but “in incorrect dosages or at incorrect times.”

       The memorandum also noted the defense team had contacted Major (MAJ)
ON, the Designated Health Authority at the Northwest Joint Regional Correctional
Facility (JRCF) at Joint Base Lewis-McChord (JBLM). Based on his conversation
with appellant’s treating physician at Fort Bliss, MAJ ON “recommended that SPC
Bowhall remain at Fort Bliss to continue [cancer] treatment as to avoid premature
mortality,” and “a transfer to JBLM from Fort Bliss will result in a major impact to
[appellant’s] continuity of care.”

       On 22 June 2017, appellant’s trial defense counsel submitted an “Addendum
to Deferral of Confinement Request.” Notably, the trial defense counsel submitted
the following addendum enclosures: (1) several emails regarding appellant’s medical
treatment; and (2) the memorandum created by the assistant trial defense counsel. 3
The emails contained the opinions of MAJ ON and Dr. JA, the Staff Endocrinologist
at William Beaumont Army Medical Center in El Paso, Texas.

      In his email, MAJ ON wrote:

             BLUF: Prisoner Bowhall should be afforded a deferment
             and permitted to participate in his medical treatment
             where he is prior to transfer to another facility.

             ....


3
 We specifically commend appellant’s trial defense counsel for their timeliness and
diligence in preparing and submitting appellant’s deferment request, addendum, and
accompanying documentation.




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BOWHALL—ARMY 20170357

            In complicated cases such as these, continuity of care can
            exponentially increase a positive prognosis: this starts
            with a physician familiar with the case history and a plan
            already in place. Though he would undoubtedly get
            excellent care at [JBLM], he would be starting over and
            there are inherent delays that come with transferring a
            patient and getting them into a new treatment team. This
            wait would be further extended since he would have to
            wait until transfer to JBLM.

            ....

            I highly recommend [appellant] be given the opportunity
            to receive his treatment there under the care of Dr. [JA].
            This would ensure the best access to care, decrease
            potential health related complications, and ensure that the
            system is not unintentionally impeding the best care
            possible for him and putting him at unnecessary risk.

      For his part, Dr. AN provided appellant’s medical update, treatment plan, and
his medical recommendation:

            He recently underwent extensive neck surgery and
            multiple cancer containing lymph nodes were removed.
            Most recent cancer marker shows persistent disease
            however the burden seems to be decreased.

            ....

            After about 2 to 3 weeks of [a low iodine] diet he will
            need to be admitted to WBAMC for high dose radioactive
            treatment and kept in isolation. Imaging studies will be
            scheduled about 10 days after treatment. At that time his
            thyroid hormone will be restarted and will need to be
            adjusted to ensure he is euthyroid. I would expect the
            whole process will take up to 3 months.

            I would strongly recommend that his treatment is not
            delayed. Any delays may contribute to cancer spread and
            lower chances of success, subsequently causing his
            premature mortality.




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BOWHALL—ARMY 20170357

       On 26 June 2017, the convening authority disapproved appellant’s request. In
explaining his decision, the convening authority said he “considered the interests of
the accused, the community’s interest, the effect upon good order and discipline, the
accused’s family situation, his service record, the sentence adjudged, and the
interests of justice in the imposition of the accused’s adjudged punishment on its
effective date.”

       On 6 July 2017, appellant was transferred to the JRCF. Prior to his arrival,
appellant’s medical treatment was discussed between Army Corrections Command
and MAJ ON. Approximately one month after his arrival at the JRCF, appellant
filed a series of complaints related to his diet.

      On 16 August 2017, MAJ ON provided a written response: “[Appellant] and I
have discussed his concerns. We discussed a plan to address his concerns with his
treatment team. [Appellant] is satisfied with this plan and will bring up any
subsequent concerns with me.” Appellant signed an acknowledgment of MAJ ON’s
response, and he did not file any subsequent complaints regarding his medical
treatment. 4 On 13 September 2017, appellant began receiving his radiation
treatments.

       On 11 November 2017, the trial defense counsel submitted appellant’s request
for clemency under Rule for Courts-Martial (R.C.M.) 1105. This request
summarized the timeline of events, cited to case law of inadequate medical care, and
included a written letter from the appellant.

       On 1 December 2017, and pursuant to the pretrial agreement, the convening
authority approved only so much of the adjudged sentence as provided for a
dishonorable discharge, confinement for eighteen months, and reduction to the grade
of E-1.




4
  The next day, Sergeant First Class (SFC) JR from the 66th Military Police
Company at JBLM provided a written response to another one of appellant’s
complaints over his diet. This response explained that SFC JR and appellant “went
over [the] diet plan paperwork that I approved through the medical personnel located
in the nuclear medicine department at [Madigan Army Medical Center] . . . . In
conclusion, DFAC can supply proper dietary needs.” As before, appellant provided
a written acknowledgment to this response and did not file any subsequent
complaints.




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BOWHALL—ARMY 20170357

                              LAW AND DISCUSSION

                         A. Eighth Amendment and Article 55

       Appellant asserts his temporary delay in receiving cancer treatment while in
post-trial confinement constituted cruel and unusual punishment. At a minimum, we
find appellant has not shown that prison officials were deliberately indifferent to his
medical needs.

       We review allegations of cruel and unusual punishment under a de novo
standard. United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001). In evaluating
these claims, “we apply the Supreme Court’s Eighth Amendment jurisprudence ‘in
the absence of legislative intent to create greater protections in the UCMJ.’” United
States v. Pena, 64 M.J. 259, 265 (C.A.A.F. 2007) (quoting United States v. Lovett,
63 M.J. 211, 215 (C.A.A.F. 2006)).

       “Conditions that violate the Eighth Amendment include ‘deliberate
indifference to serious medical needs.’” White, 54 M.J. at 474 (quoting Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976)); see also Farmer v. Brennan, 511 U.S. 825,
834 (1994) (Prison officials must have a “sufficiently culpable state of mind,” which
is one of “deliberate indifference” to inmate health). 5

        In this case, the record does not reflect deliberate indifference by prison
officials towards appellant’s medical needs. While there is evidence that appellant’s
medications were either omitted or improperly administered during his first week of
confinement, this issue was seemingly addressed following the concerns raised by
his trial defense counsel. In our view, following some initial missteps, appellant
received baseline medical treatment from a short-term confinement facility. As
such, we do not find that appellant’s initial treatment in Otero County constituted
deliberate indifference.

      Similarly, the record demonstrates that JRCF officials were reactive and
responsive in addressing appellant’s concerns about his diet. Within a week of
appellant’s first complaint, MAJ ON spoke to appellant over his treatment plan.
Following this discussion, appellant was “satisfied.” The very next day, SFC JR


5
  In White, our superior court also discussed Farmer, explaining how it “defined two
factors that are necessary for an Eighth Amendment claim to succeed regarding
conditions of confinement.” 54 M.J. at 474. The first factor is an “objective
component,” in which the act or omission must be “sufficiently serious.” Id.
(quoting Farmer, 511 U.S. at 834) (citations omitted). The second factor, discussed
above, “is subjective, testing for a culpable state of mind.” Id.




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BOWHALL—ARMY 20170357

also spoke to appellant to go over his “diet plan paperwork,” which was “approved
through the medical personnel located in the nuclear medicine department.”
Following these conversations, appellant did not file any subsequent complaints
prior to starting his radiation treatments.

      Finally, despite a short delay between appellant’s arrival at the JRCF and his
discussion with MAJ ON, this was not unusual or unexpected. In fact, in an email,
MAJ ON even discussed the typical timelines for “complicated cases”:

             Though [appellant] would undoubtedly get excellent care
             at [Madigan Army Medical Center at JBLM] . . . there are
             inherent delays that come with transferring a patient and
             getting them into a new treatment team. This wait would
             be further extended since he would have to wait until
             transfer to JBLM. Upon arrival, he would have to be in-
             processed fully into the facility, have to wait for his first
             appointment with a specialist to be assigned a care team.
             Only after all this would treatment begin.

       This description appears consistent with the record, which inherently reflects
that appellant completed in-processing, continued receiving his medication, met with
medical personnel, and started his radiation treatments. Under such circumstances,
we do not find that JRCF officials were deliberately indifferent to appellant’s
medical needs. To the contrary, we find that JRCF officials consistently sought to
provide the “excellent care” that MAJ ON stated appellant would “undoubtedly”
receive. 6

                             B. Deferral of Confinement

      While not expressly raised by appellant, we next address whether the
convening authority abused his discretion in failing to defer appellant’s
confinement. See R.C.M. 1101(c)(3) (“The decision of the authority acting on the
deferment request shall be subject to judicial review only for abuse of discretion.”).

      We conduct this analysis for two separate reasons. First, several portions of
appellant’s brief reference that the convening authority knew that appellant’s cancer
treatment would be temporarily delayed unless he approved the deferment request.


6
 “However, it is not constitutionally required that health care be ‘perfect’ or ‘the
best obtainable.’” White, 54 M.J. at 475 (quoting Harris v. Thigpen, 941 F.2d 1495,
1510 (11th Cir. 1991)). Instead, an inmate is entitled to “reasonable medical care,
but not the ‘optimal’ care.” Id. (internal quotation marks in original).




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BOWHALL—ARMY 20170357

Second, any such error by the convening authority could impact our view of the
appropriateness of appellant’s sentence. See United States v. Gay, 75 M.J. 264, 269
(C.A.A.F. 2016) (holding that sentence appropriateness relief “based on a legal
deficiency in the post-trial process” is “clearly authorized” by Article 66(c)).

       For this issue, the standard of review is critical to our analysis: “[t]o find an
abuse of discretion requires more than a mere difference of opinion – the challenged
ruling must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’”
United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000) (citations omitted).

       Ultimately, while we may not have reached the same decision as the
convening authority, we do not find he abused his discretion. Most notably, in
denying appellant’s request, the convening authority specifically listed several of the
factors within R.C.M. 1101(c)(3). This included explaining that he considered “the
community’s interest,” “the effect upon good order and discipline,” “the sentence
adjudged,” and “the interests of justice in the imposition of the accused’s adjudged
punishment on its effective date.” These are clearly significant interests, and we do
not find that their application in this case represents an abuse of discretion.

                             C. Sentence Appropriateness

      As several of appellant’s post-trial submissions included contextual
information that was not presented to the military judge, we briefly address the
appropriateness of appellant’s sentence.

       Under Article 66, 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 record, should be
approved.” Our superior court has explained this language “clearly establishes a
discretionary standard for sentence appropriateness relief.” Gay, 75 M.J. at 268.
The sentence appropriateness review remains “one of the unique and longstanding
features of the Uniform Code of Military Justice.” United States v. Hutchison, 57
M.J. 231, 233 (C.A.A.F. 2002).

        Notably, “[w]hat constitutes the ‘entire record’ for review of sentence
appropriateness has been understood to include not only the evidence admitted at
trial, but also the matters considered by the convening authority in his action on the
sentence.” United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (citations
omitted). As such, we must consider appellant’s post-trial submissions in our
review. However, in doing so, we must carefully toe the line between sentence
appropriateness and clemency: while “[s]entence appropriateness involves the
judicial function of assuring that justice is done and that the accused gets the
punishment he deserves,” “[c]lemency involves bestowing mercy – treating an




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BOWHALL—ARMY 20170357

accused with less rigor than he deserves.” United States v. Healy, 26 M.J. 394, 395
(C.M.A. 1988).

        Under the specific facts of this case, providing any sentencing relief under
Article 66 would constitute clemency, which we may not do. See United States v.
Nerad, 69 M.J. 138, 145-47 (C.A.A.F. 2010) (holding that despite our significant
discretion in reviewing the appropriateness of a sentence, we may not engage in acts
of clemency). Upon consideration of the entire record, to include appellant’s post-
trial submissions, we find the approved sentence is appropriate.

                                  CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Judge HAGLER and Judge FLEMING concur.

                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:



                                      JOHN P. TAITT
                                      Acting
                                       JOHNClerk of Court
                                             P. TAITT




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