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

                               No. ACM 39403
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         Richard S. WOODS
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Decided 26 July 2019
                          ________________________

Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 6 months,
and reduction to E-1. Sentence adjudged 8 November 2017 by GCM con-
vened at Robins Air Force Base, Georgia.
For Appellant: Major Mark J. Schwartz, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Thomas C. Franzinger, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Senior Judge J. JOHNSON delivered the opinion of the court, in which
Judge POSCH and Judge KEY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

J. JOHNSON, Senior Judge:
    A general court-martial composed of a military judge alone convicted Ap-
pellant, in accordance with his pleas, of assault with a means likely to produce
                      United States v. Woods, No. ACM 39403


death or grievous bodily harm in violation of Article 128, Uniform Code of Mil-
itary Justice (UCMJ), 10 U.S.C. § 928. 1 The military judge sentenced Appellant
to a bad-conduct discharge, confinement for six months, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.
    Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant now personally asserts that he is entitled to sentence relief because the
conditions of his post-trial confinement violated his rights under the Eighth
Amendment 2 and Articles 55 and 58, UCMJ, 10 U.S.C. §§ 855, 858, 3 or in the
alternative rendered his sentence inappropriately severe pursuant to United
States v. Gay, 75 M.J. 264 (C.A.A.F. 2015). We find no sentence relief is war-
ranted, and we affirm the findings and sentence.

                                   I. BACKGROUND
    In July 2016, Appellant began dating Airman First Class (A1C) AH, a mem-
ber of Appellant’s squadron. A1C AH ended the relationship after approxi-
mately one month. Several months later, Appellant began to discuss with A1C
AH the possibility of resuming the relationship. Their final conversation took
place on 6 December 2016 at Appellant’s residence and ended after A1C AH
reiterated that she did not want to resume dating Appellant. As A1C AH was
exiting the residence, Appellant suddenly wrapped his arm around A1C AH’s
neck from behind her and strangled her, cutting off her airway and the flow of
blood to her brain. Unable to speak, A1C AH repeatedly tapped Appellant’s
arm in an effort to have him release her. Appellant responded, “No, I won’t let
go,” and dragged A1C AH back into his bedroom as A1C AH lost consciousness.
    After A1C AH passed out, Appellant was afraid he had killed her. He tried
to revive her by slapping her face and shouting at her. A1C AH awoke after a
few seconds. After a brief conversation, Appellant walked A1C AH to her car.
Before A1C AH departed, Appellant told her she should report what he had
done. As a result of the assault, A1C AH suffered from bruising on her neck,



1 All references in this opinion to the Uniform Code of Military Justice (UCMJ) are
found in the Manual for Courts-Martial, United States (2016 ed.).
2   U.S. CONST. amend. VIII.
3 With respect to conditions of confinement, Article 58, UCMJ, 10 U.S.C. § 858, pro-
vides in pertinent part that a person serving a term of confinement adjudged by a
court-martial in a facility “not under the control of one of the armed forces [is] 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 insti-
tution is situated.” As Appellant’s assignment of error relates to his confinement in a
military facility, Article 58, UCMJ, plays no further role in our analysis.


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                   United States v. Woods, No. ACM 39403


back pain, sore throat, difficulty swallowing, and a hoarse voice, but she sus-
tained no long-term injuries.
    After Appellant’s court-martial, he was confined at Naval Consolidated
Brig Charleston (NCBC) in Charleston, South Carolina, from 16 November
2017 until 19 March 2018. Appellant has submitted a declaration to the court
addressing his allegedly deficient medical care during his confinement at
NCBC. First, Appellant explains that he suffers from sleep apnea and relies on
a “CPAP machine” in order to sleep at night. Appellant alleges:
       It took the confinement facility over 2 months to get me a [CPAP]
       machine, which had a detrimental effect on my overall health.
       When I finally got the CPAP machine, I was at first unable to
       use it, because my original jail cell did not have an outlet to plug
       it in. After some time, I was moved to a cell with an outlet, how-
       ever, I was not permitted to use cleaning materials to clean the
       sleeping machine. I was only able to use the machine for a short
       time, as the machine became very dirty, rendering it unusable.
Second, Appellant alleges the confinement facility staff “refused” to provide
him prescribed medication for a bleeding ulcer for two weeks, during which
time he was “coughing up blood.”
    In response, the Government has submitted an affidavit from Petty Officer
CC, the Leading Petty Officer at NCBC whose duties include “patient care and
managing the medical department.” Petty Officer CC relates that new prison-
ers at NCBC are provided with a handbook that describes the procedure to be
seen at sick call for medical needs. Petty Officer CC further relates that Appel-
lant arrived at NCBC on 16 November 2017 with a CPAP machine, among
other personal effects kept secured in a “seabag.” According to Petty Officer
CC, Appellant mentioned the CPAP machine to Petty Officer CC when Petty
Officer CC provided Appellant his medication that first day. In response, Petty
Officer CC advised Appellant of the process for submitting a prisoner request
form to have the machine brought from his seabag to the medical department.
However, the medical department never received such a request from Appel-
lant. On 12 January 2018, Appellant requested to access his seabag and Ap-
pellant retrieved his CPAP machine. Petty Officer CC asserts there is no other
record that Appellant requested his CPAP machine prior to 12 January 2018,
that Appellant was unable to use the machine, that Appellant submitted a re-
quest form to change cells or for cleaning supplies, or that the machine was
“unusable.” With regard to Appellant’s ulcer medication, Petty Officer CC as-
serts there is “no documented evidence” that the medical staff refused to pro-
vide Appellant medication or that Appellant coughed up blood due to a bleeding
ulcer.



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                   United States v. Woods, No. ACM 39403


                                II. DISCUSSION
A. Law
    We review de novo whether an appellant has been subjected to impermis-
sible conditions of post-trial confinement in violation of the Eighth Amend-
ment or Article 55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F.
2007) (citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)).
    “Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and
unusual punishment. 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 . . . is
apparent.” 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). To demonstrate a violation of the Eighth
Amendment, an appellant must show:
       (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 [his]
       health and safety; and (3) that he “has exhausted the prisoner-
       grievance system . . . and that he has petitioned for relief under
       Article 138, UCMJ, 10 USC § 938 [2000].”
United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (omission and second
alteration in original) (internal citations omitted). “Denial of adequate medical
attention can constitute an Eighth Amendment or Article 55 violation.” White,
54 M.J. at 474 (citing United States v. Sanchez, 53 M.J. 393, 396 (C.A.A.F.
2000)). However, the standard is “reasonable” medical care rather than “per-
fect” or “optimal” care. Id. at 475. (citing Harris v. Thigpen, 941 F.2d 1495,
1510 (11th Cir. 1991)). The Eighth Amendment prohibits “deliberate indiffer-
ence to serious medical needs of prisoners,” whether manifested by prison
guards “intentionally denying or delaying access to medical care or intention-
ally interfering with the treatment once prescribed.” Estelle v. Gamble, 429
U.S. 97, 104–05 (1976) (citation omitted). “In order to state a cognizable claim,
a prisoner must allege acts or omissions sufficiently harmful to evidence delib-
erate indifference to serious medical needs.” Id. at 106. “Deliberate indiffer-
ence” requires that the responsible official must be aware of an excessive risk
to an inmate’s health or safety and disregard that risk. Farmer v. Brennan,
511 U.S. 825, 837 (1994).
    Under our broad authority and mandate under Article 66(c), UCMJ, to ap-
prove only so much of the sentence as we find appropriate in law and fact, we
may grant sentence relief due to an appellant’s post-trial treatment even in the
absence of an Eighth Amendment or Article 55 violation. Gay, 74 M.J. at 742–
43; see United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002).


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                   United States v. Woods, No. ACM 39403


B. Analysis
    As an initial matter, we have considered whether a post-trial evidentiary
hearing is required to resolve any factual disputes between Appellant’s decla-
ration and Petty Officer CC’s affidavit. See United States v. Ginn, 47 M.J. 236,
248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967).
We find a hearing unnecessary in this case. To the extent the two documents
are inconsistent, resolving any factual disputes in Appellant’s favor would not
result in relief. See Ginn, 47 M.J. at 248.
    In order to secure relief for cruel or unusual confinement conditions, Appel-
lant bears the burden to demonstrate all three prongs of the test articulated in
Lovett are met. 63 M.J. at 215. Appellant has failed to do so. Specifically, even
if we take Appellant’s assertions in the most favorable light and assume ar-
guendo that confinement officials at NCBC unjustly refused to provide him
reasonable medical care by withholding his CPAP machine and ulcer medica-
tion, Appellant has failed to demonstrate that he used, much less exhausted,
the available prisoner grievance system, or that he petitioned for relief under
Article 138, UCMJ.
    In rare circumstances, military appellate courts have excused an appel-
lant’s failure to satisfy this third prong of the Lovett test. See, e.g., Wise, 64
M.J. at 472–73 (C.A.A.F. 2007) (finding “unusual” circumstances excused the
appellant’s failure to seek relief for an Article 12, UCMJ, 10 U.S.C. § 912, com-
plaint through the prisoner grievance or Article 138 processes); United States
v. Norman, No. ACM 37945 (recon), 2014 CCA LEXIS 661, at *21–23 (A.F. Ct.
Crim. App. 4 Sep. 2014) (per curiam) (unpub. op.) (citations omitted) (noting
this court has not required resort to the prisoner grievance or Article 138 pro-
cesses in “unusual or egregious circumstances” where the appellant did raise
the issue “with someone connected with the military who would be in the posi-
tion to relay the problem to an authority capable of remedying the situation”).
However, we do not find Appellant’s case presents such circumstances. Appel-
lant has failed to demonstrate any unusual circumstance that either prevented
him from seeking relief through the NCBC’s procedures or under Article 138,
UCMJ, or that he took an equivalent action to “relay the problem to an author-
ity capable of remedying the situation.” Norman, unpub. op. at *23. On the
contrary, Appellant’s case illustrates the rationale for the requirement, which
serves to “promot[e] resolution of grievances at the lowest possible level . . .
[and] to ensure that an adequate record has been developed . . . .” United States
v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997).
    We have also considered whether Appellant’s assertions warrant sentence
relief under our Article 66(c), UCMJ, authority despite Appellant’s failure to
demonstrate his entitlement to relief under Lovett. See Gay, 75 M.J. at 268. We
find that they do not.

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                   United States v. Woods, No. ACM 39403


                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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