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

                       No. ACM 38472 (f rev)
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                         Adam P. COHEN
          First Lieutenant (O-2), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Upon Further Review
                      Decided 30 January 2017
                       ________________________

Military Judge: J. Wesley Moore (arraignment); Natalie D. Richardson
(sitting alone and DuBay hearing); and Shaun S. Speranza (DuBay
hearing).
Approved sentence: Dismissal, confinement for 15 months, and a repri-
mand. Sentence adjudged 17 July 2013 by GCM convened at McConnell
Air Force Base, Kansas.
For Appellant: Major Christopher D. James, USAF; and Brian L. Mizer,
Esquire.
For Appellee: Lieutenant Colonel Daniel J. Breen, USAF; Major Collin
F. Delaney, USAF; Major Matthew J. Neil, USAF; Major Richard J.
Schrider, USAF; Major Meredith L. Steer, USAF; and Gerald R. Bruce,
Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military
Judges.
Senior Judge DUBRISKE delivered the opinion of the court, in which
Judges HARDING and C. BROWN joined.
                   United States v. Cohen, No. ACM 38472 (f rev)


                               ________________________

    This is an unpublished opinion and, as such, does not serve as precedent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

DUBRISKE, Senior Judge:
    A general court-martial composed of a military judge convicted Appellant,
consistent with his pleas, of willfully disobeying a superior commissioned of-
ficer, violating a lawful general order, violating a lawful general regulation,
making false official statements, engaging in conduct unbecoming an officer,
wrongfully accessing protected computer systems without authorization, and
fraternization, in violation of Articles 90, 92, 107, 133, and 134, UCMJ, 10
U.S.C. §§ 890, 892, 907, 933, 934. He was sentenced to a dismissal, confinement
for 15 months, and a reprimand. The convening authority approved the sen-
tence as adjudged.
    Upon our initial review of this case, we found no error materially prejudi-
cial to the substantial rights of Appellant occurred relative to the findings of
guilt. As such, we affirmed those findings. United States v. Cohen, ACM 38472
(A.F. Ct. Crim. App. 30 April 2015) (unpub. op.). However, based on infor-
mation submitted by Appellant to this court, we ordered a post-trial hearing
pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967), to address
two assignments of error alleging conditions of Appellant’s post-trial confine-
ment violated the Eighth Amendment 1 and Article 55, UCMJ, 10 U.S.C. § 855.
As this post-trial hearing has been conducted, the case is back before us for
further review under Article 66(c), UCMJ, 10 U.S.C. § 866(c).

                                   I. BACKGROUND
   Shortly after sentencing proceedings against him closed, Appellant was
transferred to the Naval Consolidated Brig Miramar (NCBM) in San Diego,
California, to serve his remaining period of confinement. Appellant informed a
NCBM technician during his medical intake that he had been diagnosed with
post-traumatic stress disorder (PTSD) by a civilian provider prior to his court-
martial. The records from this civilian provider were not located in the copy of
Appellant’s medical record given to the NCBM staff upon his transfer. Appel-
lant was not diagnosed with PTSD when examined by a NCBM mental health
provider during his initial medical assessment.




1   U.S. Const. amend. VIII.


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                United States v. Cohen, No. ACM 38472 (f rev)


    Appellant was also assessed by a brig staff psychiatrist three times during
his first three months of confinement at the NCBM. This provider found no
medical basis to diagnose Appellant with PTSD. Based on Appellant’s report
of a previous diagnosis, however, the NCBM medical staff eventually obtained
Appellant’s medical records from the civilian provider diagnosing Appellant
with PTSD prior to his court-martial. As the testing materials from this as-
sessment had been deemed “invalidated” by the civilian provider who eventu-
ally rendered the diagnosis, the NCBM staff psychiatrist declined to diagnose
Appellant with PTSD based on his personal evaluations of Appellant since his
arrival at the NCBM. Appellant was also seen by other providers at the NCBM
and a local naval medical facility during this time for a variety of complaints.
Many of these providers reported Appellant suffered from PTSD, although they
noted the diagnosis was based on Appellant’s report of symptoms or claims of
previous treatment.
    Although it was determined by the NCBM medical staff that Appellant did
not suffer from PTSD, Appellant was referred to a nearby naval medical facil-
ity for a traumatic brain injury (TBI) assessment based on Appellant’s report
of previous physical trauma by an unknown assailant. Appellant’s neurological
examination assessed Appellant with mild TBI, although his condition was
now likely asymptomatic given the negative diagnostic testing results. Appel-
lant was also examined by another medical provider as part of his TBI assess-
ment. This provider initially referred Appellant to a local installation mental
health clinic for psychological services. However, when the provider learned
the NCBM provided similar services to those provided by the local mental
health clinic, Appellant’s referral was rescinded.
    While Appellant was being assessed for PTSD and TBI, he was provided a
variety of mental health treatment at the NCBM on a weekly basis. This re-
curring treatment included both individualized counseling for sexual trauma
and group behavioral counseling. While the NCBM did not have the medical
expertise to offer intensive PTSD treatment, Appellant’s group counseling ses-
sions addressed the symptoms of PTSD. Prisoners with a medical diagnosis of
PTSD attended these same group counseling sessions as Appellant.
   Appellant was also required to attend a sexual offender education (SOED)
course as part of his rehabilitation program. Notwithstanding its name, the
SOED course was mandatory for not only sexual offenders, but also prisoners
convicted of an offense with a sexual component. Appellant’s transmission of
pornographic images through another individual’s e-mail account was deter-
mined to be a qualifying offense for this course. Appellant claimed his attend-
ance at this course exacerbated his PTSD symptoms as he was previously the




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                United States v. Cohen, No. ACM 38472 (f rev)


victim of sexual violence. Although the NCBM staff would not waive Appel-
lant’s attendance at this course, he was offered accommodations during the
course to mitigate the negative personal impact he voiced to the NCBM staff.

               II. CONDITIONS OF POST-TRIAL CONFINEMENT
    When, as in this case, we have factual findings produced from a DuBay
hearing, we review the military judge’s findings of fact under a clearly errone-
ous standard. United States v. Wean, 45 M.J. 461, 462–63 (C.A.A.F. 1997). We
review conclusions of law de novo. United States v. Anderson, 55 M.J. 198, 201
(C.A.A.F. 2001). In applying the clearly erroneous standard to the military
judge’s findings of fact here, we conclude her findings are adequately supported
by the DuBay record. We, therefore, adopt the findings of the military judge at
the DuBay hearing as our own. Article 66(c), UCMJ.
    Appellant contends he was diagnosed with PTSD prior to his court-martial,
as well as while he was confined at the NCBM. Because of his diagnosis, he
argues the Government violated the Eighth Amendment and Article 55,
UCMJ, when he was denied access to treatment for PTSD despite his repeated
complaints and efforts to secure appropriate psychological care. Appellant also
alleges the Government violated Article 55, UCMJ, by requiring him to take a
sex offender education course despite the fact he was a victim of sexual assault,
claiming this course was psychologically damaging to him in light of his PTSD.
    Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and un-
usual punishment. “[T]he Eighth Amendment prohibits two types of punish-
ments: (1) those ‘incompatible with the evolving standards of decency that
mark the progress of a maturing society’ or (2) those ‘which involve the unnec-
essary 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)). A vio-
lation of the Eighth Amendment is shown by demonstrating:
       (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.
Id. (footnotes and quotation marks omitted).2 We look objectively at whether
an act denied a prisoner his necessities, while we subjectively test the state of



2The Government conceded Appellant exhausted the prisoner-grievance system and
petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938.


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                  United States v. Cohen, No. ACM 38472 (f rev)


mind of the prison officials. United States v. Brennan, 58 M.J. 351, 353
(C.A.A.F. 2003).
    Turning to Appellant’s claim that he was denied treatment for PTSD, we
recognize prisoners are entitled to reasonable medical care for serious medical
conditions. United States v. McPherson, 72 M.J. 862, 873 (A.F. Ct. Crim. App.
2013), aff'd, 73 M.J. 393 (C.A.A.F. 2014). “[D]eliberate indifference to serious
medical needs of prisoners constitutes the ‘unnecessary and wanton infliction
of pain’ proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104 (cita-
tion omitted). As such, the denial of adequate medical attention can constitute
an Eighth Amendment violation. United States v. White, 54 M.J. 469, 474
(C.A.A.F. 2001). However, it is not constitutionally required that this health
care be the best obtainable as an appellant is only entitled to reasonable––not
optimal––medical care recommended to treat a specific condition. Id. at 475
(citations omitted).
    The military judge found Appellant never had a reliable diagnosis of PTSD
necessitating the specific medical treatment Appellant claims he was denied
by the NCBM staff. Regardless of whether Appellant actually suffered from
PTSD, however, we are firmly convinced, as was the military judge, that con-
finement officials had no culpable intent to deny Appellant any medically-nec-
essary treatment. Appellant’s medical needs were addressed by the NCBM
staff through both individual and group therapy sessions on a weekly basis.
Appellant was also assessed by mental health providers throughout his incar-
ceration, and he was placed under protective care as necessary when he ap-
peared to be suffering from acute distress. While the NCBM staff’s evaluation
of Appellant’s PTSD claims could have been completed in a timelier manner,
we find no basis to hold that the Government was deliberately indifferent to
Appellant’s health and well-being during his incarceration.
    Likewise, we find no culpable intent on the part of the NCBM staff in re-
quiring Appellant’s attendance at the SOED course. While Appellant claimed
the course was traumatizing to him as a victim of sexual violence, the NCBM
staff attempted to offer Appellant reasonable accommodations short of remov-
ing him from the course to mitigate any personal concerns. Given other victims
of sexual assault were required to attend the SOED course, we decline to hold
the Government acted with an improper intent by requiring Appellant’s at-
tendance at this course. As such, Appellant’s second claim of error surrounding
his post-trial confinement conditions also does not merit relief. 3



3We also find no legal defect or deficiency within Appellant’s claims necessitating relief
under Article 66(c), UCMJ, 10 U.S.C. § 866(c). See United States v. Gay, 74 M.J. 736,
744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).


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                United States v. Cohen, No. ACM 38472 (f rev)


                      III. SENTENCE APPROPRIATENESS
    Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant also alleged during his initial appeal to this court that his sentence was
inappropriately severe. Appellant requested this court give his case individu-
alized consideration and set aside his dismissal.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). “We assess sentence appropriateness by
considering the particular appellant, the nature and seriousness of the of-
fenses, the appellant’s record of service, and all matters contained in the record
of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009).
Although we are accorded great discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clem-
ency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
   Having fully considered this particular Appellant, the nature and serious-
ness of his offenses, his record of service, and all matters contained in the rec-
ord of trial, we find the sentence appropriate. Appellant’s inability to follow
orders and tell the truth, when viewed in conjunction with his computer mis-
use, supports the sentence approved by the convening authority in this partic-
ular case.

                               IV. CONCLUSION
    After further review of this case, we find no error prejudicial to the sub-
stantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C.
§§ 859(a), 866(c). Having previously affirmed the findings, the sentence as ap-
proved by the convening authority is now AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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