       This opinion is subject to revision before publication



         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
      Lamont S. JESSIE, Chief Warrant Officer Two
              United States Army, Appellant
                          No. 19-0192
                    Crim. App. No. 20160187
        Argued November 5, 2019—Decided April 6, 2020
              Military Judge: Rebecca K. Connally
   For Appellant: Captain Zachary A. Gray (argued); Lieuten-
   ant Colonel Christopher D. Carrier, Lieutenant Colonel Tif-
   fany D. Pond, and Captain Benjamin A. Accinelli (on brief);
   Lieutenant Colonel Todd W. Simpson, Captain Joseph C.
   Borland, and Captain Heather M. Martin.
   For Appellee: Captain Christopher T. Leighton (argued);
   Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Wil-
   liams, and Major Hannah E. Kaufman (on brief); Major
   Marc B. Sawyer.
   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge RYAN joined.
   Judges OHLSON and SPARKS filed separate dissenting
   opinions.
                     _______________

   Judge MAGGS delivered the opinion of the Court.
    A general court-martial found Appellant guilty, contrary
to his pleas, of two specifications of sexual assault of a child
of twelve years or older, but under the age of sixteen, one spec-
ification of conduct unbecoming an officer, and one specifica-
tion of adultery in violation of Articles 120b, 133, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b,
933, 934 (2012). The court-martial sentenced Appellant to a
reprimand, four years of confinement, and a dismissal. The
convening authority approved the adjudged findings and sen-
tence.
               United States v. Jessie, No. 19-0192/AR
                        Opinion of the Court

    On appeal, Appellant asked the U.S. Army Court of Crim-
inal Appeals (ACCA) to reduce his sentence on the grounds
that the visitation rules at his confinement facility violated
his First and Fifth Amendment rights by depriving him of all
direct and indirect contact with his biological children. United
States v. Jessie, No. ARMY 20160187, 2018 CCA LEXIS 609,
at *2, 2018 WL 6892945, at *1–2 (A. Ct. Crim. App. Dec. 28,
2018) (en banc). The ACCA, with ten judges sitting en banc,
concluded that it had no obligation to review Appellant’s con-
stitutional challenges and that considering them would be in-
appropriate. 1 Id. at *18–19, 2018 WL 6892945, at *7–8. Four
of the ten judges dissented. Id. at *25, 2018 WL 6892945, at
*9–10.
    We granted Appellant’s petition to determine whether Ar-
ticle 66(c), UCMJ, 10 U.S.C. § 866(c) (2012), required the
ACCA to consider his constitutional claims and, if so, whether
these claims have merit. 2 We now affirm the ACCA’s decision.
                           I. Background
    While temporarily living in the household of a close friend
and her family, Appellant engaged in sexual misconduct. The
victim of this misconduct was one of his friend’s daughters,



   1 Appellant also sought relief based on post-trial delay and other
matters personally asserted pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). The ACCA decided that these matters
lacked merit. Jessie, 2018 CCA LEXIS 609, at *2 n.1, 2018 WL
6892945, at *1 n.1.
   2   The assigned issues are:
         I. Whether the Army court erred by considering mil-
         itary confinement policies but refusing to consider
         specific evidence of Appellant’s confinement condi-
         tions.
         II. Whether the Army court conducted a valid Article
         66 review when it failed to consider Appellant’s con-
         stitutional claims.
         III. Whether Appellant’s constitutional rights were
         violated by a confinement facility policy that barred
         him from all forms of communication with his minor
         children without an individualized assessment
         demonstrating that an absolute bar was necessary.



                                  2
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

who was about thirteen years old at the time. Subsequent rev-
elations led to the charges, the findings, and the sentence in
this case.
    Appellant began serving his approved sentence of confine-
ment at the Joint Regional Confinement Facility (JRCF) at
Fort Leavenworth, Kansas, in March 2016. At the time, the
JRCF’s visitation policy for child sex offenders such as Appel-
lant was Military Correctional Complex Standard Operating
Procedure 310 (SOP 310). This policy, which the JRCF has
since amended, 3 required “inmates who committed sexual of-
fenses with minor children not to have written, telephonic, or
in-person contact with any minor child without prior approval
by the [facility’s commander].”
    In March and June 2017, Appellant asked the confine-
ment facility’s commander for permission to communicate
with his biological children, who at the time were under the
age of eighteen. The commander denied both requests. The
commander explained that to obtain approval for communi-
cation with minor children under SOP 310 an inmate had to
complete a sex offender treatment program. And to be eligible
for this program, the inmate had to accept responsibility for
committing the offenses for which he was confined. Because
the confinement facility determined that Appellant did not
accept responsibility, he could not participate in the program
and, therefore, he could not obtain the commander’s approval.
    On appeal, Appellant asked the ACCA to use its authority
under Article 66(c), UCMJ, 4 to find that his sentence was in-
appropriate. He argued that the ACCA should reduce his sen-
tence because his confinement conditions violated the Consti-
tution. Specifically, he claimed that SOP 310 violated his

   3 According to the ACCA, an amended policy went into effect in
November 2018. The amended policy allows children to visit an in-
mate based on an individualized assessment of risk. The ACCA did
not know whether Appellant’s children could visit him under the
new policy.
   4   Congress amended Article 66, UCMJ, effective January 1,
2019. National Defense Authorization Act for Fiscal Year 2018,
Pub. L. No. 115-91, §§ 531(j), 1081(c)(1)(K), 131 Stat. 1385, 1598
(Dec. 12, 2017). The amendment moved the language in paragraph
(c) to paragraph (d)(1) and slightly modified it.



                                3
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

First Amendment right of freedom of association by denying
him contact with his children and his Fifth Amendment priv-
ilege against self-incrimination by requiring him to accept re-
sponsibility for his offenses in order to communicate with his
biological children.
    The ACCA assumed for the purposes of the appeal that
SOP 310 effectively prevented Appellant from having contact
with his biological children between March 2016 and Novem-
ber 2018 and that Appellant had exhausted all administrative
means of challenging SOP 310. The ACCA, however, deter-
mined that it had no obligation to consider Appellant’s First
and Fifth Amendment claims when assessing his sentence.
The ACCA further decided that if it had authority to consider
the constitutional claims, it would be inappropriate to do so. 5
The ACCA therefore did not address the merits of Appellant’s
claims in conducting its review under Article 66(c), UCMJ.
The ACCA ultimately affirmed Appellant’s approved sen-
tence.
         II. Whether the ACCA Conducted a Proper
               Review of Appellant’s Sentence
    Assigned Issue II asks whether the ACCA conducted a
proper review of Appellant’s sentence under Article 66(c),
UCMJ, when it did not consider his First and Fifth Amend-
ment claims in assessing the lawfulness and appropriateness
of his sentence. This issue requires us to address the prelimi-
nary question of whether the ACCA was authorized to con-
sider the materials outside the record that Appellant submit-
ted in support of his constitutional claims. These materials
included SOP 310, Appellant’s requests for an exception to
SOP 310, and the commander’s denial of those requests. This
preliminary question is a question of law that we review de
novo. See United States v. Gay, 75 M.J. 264, 267 (C.A.A.F.
2016).
  Answering the question of whether a Court of Criminal
Appeals (CCA) may consider materials outside the record

   5  The ACCA stated: “If we may consider appellant’s claims for
post-trial sentencing relief, but are not required to, the question
next becomes whether we should. For several reasons, we think not
in this case.” 2018 CCA LEXIS 609, at *12, 2018 WL 6892945, at
*5.



                                4
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

when reviewing a sentence under Article 66(c), UCMJ, is dif-
ficult because our past decisions have produced three distinct
lines of precedent. Some precedents hold that the CCAs may
consider only what is in the record. See, e.g., United States v.
Fagnan, 12 C.M.A. 192, 194, 30 C.M.R. 192, 194 (1961). Other
precedents have permitted the CCAs to supplement the rec-
ord by accepting affidavits or ordering additional factfinding
hearings when the CCAs decide issues that are raised by ma-
terials in the record but that are not fully resolvable by those
materials. See, e.g., United States v. Brennan, 58 M.J. 351
(C.A.A.F. 2003). Still other precedents have allowed the CCAs
to consider materials outside the record for a limited class of
issues even though those issues are not raised by anything in
the record. See, e.g., United States v. Erby, 54 M.J. 476, 477
(C.A.A.F. 2001). We analyze Article 66(c), UCMJ, and these
three lines of precedent below.
                    A. Article 66(c), UCMJ
   Article 66(c), UCMJ, has long governed the review of sen-
tences by the CCAs and the two predecessors of the CCAs, the
Boards of Review and the Courts of Military Review. The rel-
evant version of this provision states:
       In a case referred to it, the Court of Criminal Ap-
       peals may act only with respect to the findings and
       sentence as approved by the convening authority. It
       may affirm only such findings of guilty and the sen-
       tence 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. In
       considering the record, it may weigh the evidence,
       judge the credibility of witnesses, and determine
       controverted questions of fact, recognizing that the
       trial court saw and heard the witnesses.
10 U.S.C. § 866(c) (2012).
    Our cases addressing the scope of the CCAs’ review of sen-
tences under Article 66(c), UCMJ, have focused on three sig-
nificant parts of the second sentence of the quoted language.
First are the words specifying that a CCA can affirm only so
much of a sentence that it finds “correct in law.” These words
prevent a CCA from affirming an unlawful sentence, such as
one that violates the prohibition against cruel and unusual




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              United States v. Jessie, No. 19-0192/AR
                       Opinion of the Court

punishment in the Eighth Amendment and Article 55, UCMJ.
See Erby, 54 M.J. at 478.
   Second are the words specifying that a CCA may affirm
only so much of a sentence as it “determines . . . should be
approved.” Pursuant to these words, a CCA may not affirm
any portion of a sentence that it finds excessive. See United
States v. Nerad, 69 M.J. 138, 141 (C.A.A.F. 2010). Accord-
ingly, the CCAs have “broad discretionary power to review
sentence appropriateness.” United States v. Kelly, 77 M.J.
404, 405 (C.A.A.F. 2018).
    Third are the words specifying that a CCA must review
the sentence “on the basis of the entire record.” In Fagnan,
this Court construed the phrase “entire record” to include the
“record of trial” and “allied papers.” 12 C.M.A. at 194, 30
C.M.R. at 194. Under the Rules for Courts-Martial (R.C.M.)
applicable to this case, the “record of trial” contains all of the
items listed in R.C.M. 1103(b)(2), and the “allied papers” are
items now identified as “matters attached to the record” in
accordance with R.C.M. 1103(b)(3). 6 In addition, the “entire
record” also includes briefs and arguments that government
and defense counsel (and the appellant personally) might pre-
sent regarding matters in the record of trial and “allied pa-
pers.” See United States v. Healy, 26 M.J. 394, 396 (C.M.A.
1988).
       B. Precedents Restricting the CCAs to Reviewing
           Materials Included in the “Entire Record”
    Strictly following the text of Article 66(c), UCMJ, some
precedents have limited the CCAs to considering only mate-
rials included in the “entire record” when reviewing sen-
tences. In the leading case, Fagnan, the appellant asked the



   6 The nature of the appellate issue determines the extent to
which a CCA may consider “matters attached to the record.” For
example, a CCA may consider a rejected exhibit (i.e., something
that would not be part of the record of trial), in an appeal challeng-
ing the ruling that denied admission of the exhibit. See United
States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996). In contrast, in re-
viewing the legal and factual sufficiency of the evidence, a CCA may
consider only admitted evidence found in the record of trial. See
United States v. Heirs, 29 M.J. 68, 69 (C.M.A. 1989).



                                  6
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

Army Board of Review not to approve his bad conduct dis-
charge. 12 C.M.A. at 193, 30 C.M.R. at 193. To support this
request, the appellant sought to introduce a favorable psychi-
atric assessment and a favorable report regarding his conduct
while in confinement. Id. at 193, 30 C.M.R. at 193. The Board
of Review declined to consider these documents, explaining
that because the proffered submission “concerns matters
which occurred months after the convening authority acted
upon the sentence and forwarded the record of trial, it is not
a part of the record subject to review under Article 66.” Id. at
193, 30 C.M.R. at 193. This Court affirmed, holding that un-
der Article 66(c), UCMJ, “the board of review is expressly re-
stricted by Congress to the ‘entire record’ in assessing the ap-
propriateness of the sentence.” Id. at 194, 30 C.M.R. at 194.
This Court further reasoned that, if military justice proceed-
ings are to be “truly judicial in nature,” then the appellate
courts cannot “consider information relating to the appropri-
ateness of sentences when it has theretofore formed no part
of the record.” Id. at 195, 30 C.M.R. at 195.
    Fagnan established a clear rule that the CCAs may not
consider anything outside of the “entire record” when review-
ing a sentence under Article 66(c), UCMJ. See Edward S.
Adamkewicz Jr., Appellate Consideration of Matters Outside
the Record of Trial, 32 Mil. L. Rev. 1, 16 (1966). This Court
subsequently applied this rule in Healy, a case in which the
appellant asked the Army Court of Military Review (ACMR)
to consider twenty-five documents outside of the record when
assessing the appropriateness of his sentence. 26 M.J. at 395.
These documents, most of which were written by prison offi-
cials, recommended early release. Id. at 395 & 395 n.3. The
ACMR refused to consider the documents on grounds that the
documents addressed clemency rather than sentence appro-
priateness. Id. at 395. This Court affirmed, ruling that the
ACMR could not consider matters of clemency in determining
sentence appropriateness. Id. at 396–97. The Court stated
that it “need not decide” whether the ACMR could consider
additional documents relevant to sentence appropriateness
as opposed to clemency. Id. at 397. But after citing Article
66(c), UCMJ, Fagnan, and other decisions, see id. at 395, the
Court cautioned: “[T]he Code does not provide an opportunity




                               7
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

for the accused and his counsel to supplement the ‘record’ af-
ter the convening authority has acted.” Id. at 396–97.
    The rule in Fagnan does not preclude the CCAs from con-
sidering prison conditions when reviewing a sentence under
Article 66(c), UCMJ, if the record contains information about
those conditions. In Gay, the CCA reduced a prisoner’s sen-
tence under Article 66(c), UCMJ, because prison officials,
without justification, had made him serve part of his sentence
in maximum security solitary confinement. 75 M.J. at 266.
Information about these conditions appeared in the record be-
cause the appellant had complained about them in submis-
sions to the convening authority. 7 See United States v. Harri-
son, 16 C.M.A. 484, 487, 37 C.M.R. 104, 107 (1967) (citing
Fagnan and holding that a Board of Review may consider ma-
terials submitted to the convening authority). The govern-
ment argued before this Court that the CCA had abused its
discretion because Article 66(c), UCMJ, does not authorize
granting sentence appropriateness relief for post-trial con-
finement conditions. 75 M.J. at 266–67. But we disagreed,
holding that imposing solitary confinement without justifica-
tion was a “legal deficiency,” and that a CCA may reduce a
sentence under Article 66(c), UCMJ, based on “a legal defi-
ciency in the post-trial confinement conditions” as part of its
sentence appropriateness determination. Id. at 269.
   Similarly, in United States v. White, the appellant claimed
that confinement officials violated the prohibition against
cruel and unusual punishment in the Eighth Amendment and
Article 55, UCMJ, when they severely harassed him and de-
nied him medical treatment. 54 M.J. 469, 470–71 (C.A.A.F.
2001). This Court rejected the government’s arguments that
we lacked jurisdiction to consider the appellant’s claims, hold-
ing that Article 67(c), UCMJ, 10 U.S.C. 867(c) (2000), pro-
vides this Court jurisdiction to determine on direct appeal
whether a sentence is being executed in a manner that of-
fends the Eighth Amendment or Article 55, UCMJ. Id. at 472.



   7 The R.C.M. 1105 submission was a “matter[] attached to the
record” under R.C.M. 1103(b)(3)(C), and the convening authority’s
action was part of the “record of trial” under R.C.M.
1103(b)(2)(D)(iv).



                               8
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

Although White focused on this Court’s jurisdiction under Ar-
ticle 67(c), UCMJ, rather than a CCA’s jurisdiction under Ar-
ticle 66(c), UCMJ, the decision is consistent with Fagnan be-
cause the appellant had presented his claim to the convening
authority before raising it on appeal. Id. at 470. Materials
supporting the claims were thus part of the “entire record.”
      C. Precedents Allowing the CCAs to Supplement
     the Record in Resolving Issues Raised in the Record
    This Court has never overruled Fagnan and has continued
to cite the decision in recent years. See, e.g., United States v.
Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (following Fagnan on
the issue of what constitutes the “entire record” under Article
66(c), UCMJ). But notwithstanding the strict interpretation
of Article 66(c), UCMJ, in Fagnan, some precedents have al-
lowed the CCAs to supplement the record when deciding is-
sues that are raised by materials in the record. In these prec-
edents, the CCAs have accepted affidavits or ordered
hearings to determine additional facts pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) (per
curiam).
    For example, in Brennan, the appellant sought sentence
relief before the CCA on grounds that she had suffered sexual
assaults and harassment during her post-trial confinement.
58 M.J. at 352. The appellant initially complained about this
mistreatment in her submissions to the convening authority.
Id. On appeal to the CCA, she also submitted an affidavit con-
taining additional details. Id. at 353. The CCA and later this
Court both considered the affidavit even though it was not
part of the entire record. Id. This Court has similarly allowed
a CCA to accept affidavits or order a DuBay hearing when
necessary for resolving claims of ineffective assistance of trial
defense counsel and a wide variety of other issues when those
claims and issues are raised by the record but are not fully
resolvable by the materials in the record. See, e.g., United
States v. Parker, 36 M.J. 269, 272 (C.M.A. 1993) (listing ex-
amples of issues in which DuBay hearings have been ordered
for gathering additional facts on appeal).
    These precedents are not strictly consistent with Fagnan
and Article 66(c)’s requirement that CCAs limit their review
to the “entire record.” They also appear to be inconsistent



                               9
            United States v. Jessie, No. 19-0192/AR
                     Opinion of the Court

with general federal practice, which typically would require
collateral litigation to address claims that are raised by the
record but that cannot be resolved on appeal by materials in
the record. See 16A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3956.1 (5th ed. 2019) (stat-
ing, as an example, “where the court of appeals holds that a
defendant is unable to establish, on direct appeal, a claim of
ineffective assistance of trial counsel because the evidence
needed to support the claim is outside the record on appeal,
the defendant should pursue the ineffective-assistance claim
on collateral review”). This Court has acknowledged that
there is “no mechanism set out in the Uniform Code of Mili-
tary Justice for this Court or the Courts of Military Review to
evaluate such post-conviction claims” via affidavits and
DuBay hearings. United States v. Polk, 32 M.J. 150, 152
(C.M.A. 1991). But this Court has nonetheless justified the
exception to the strict language of Article 66(c), UCMJ, on
grounds of precedent and necessity. The Court has concluded
based on experience that “extra-record fact determinations”
may be “necessary predicates to resolving appellate ques-
tions” that arise during Article 66(c), UCMJ, reviews. Parker,
36 M.J. at 272.
       D. Precedents Allowing the CCAs to Consider
           Matters Entirely Outside the Record
    A third class of precedents, however, has gone further and
allowed the CCAs to consider materials outside the “entire
record” when reviewing issues that were not raised by any-
thing in the record. The clearest example is Erby. The appel-
lant in that case asserted that prison officials severely har-
assed him when he first arrived at the confinement facility to
serve his sentence. 54 M.J. at 477. He asked the CCA for re-
lief, arguing that his confinement conditions subjected him to
cruel and unusual punishment. Id. The CCA held that “it had
no authority to review [the] appellant’s complaint because the
mistreatment was not a part of the approved sentence, nor
was it raised in [the] appellant’s clemency request to the con-
vening authority.” Id. This Court reversed the CCA, holding
that the CCA erred in concluding that it lacked authority to
review the claims. Citing White, the Court held that the CCA
has a duty to determine whether a sentence is “correct in
law,” which “includes authority to ensure that the severity of


                              10
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

the adjudged and approved sentence has not been unlawfully
increased by prison officials.” Id. at 478 (internal quotation
marks omitted) (quoting White, 54 M.J. at 472). The Court
remanded the case for further factfinding. Id. at 479. Erby is
inconsistent with Fagnan and the cases allowing supplemen-
tation for resolving matters raised by the record because the
“entire record” contained no information concerning the ap-
pellant’s mistreatment in the confinement facility.
    A similar decision is United States v. Pena, 64 M.J. 259
(C.A.A.F. 2007). In Pena, the appellant was convicted of sex-
related offenses. Id. at 261. A clemency and parole board or-
dered him to participate in a rigorous supervised release pro-
gram for seventy-two days, ending on the last day of his ap-
proved sentence of confinement. Id. at 263. The appellant
argued on appeal to this Court that this requirement consti-
tuted cruel and usual punishment, unlawfully increased the
punishment to which he had been sentenced, and rendered
his guilty plea improvident. Id. at 264. The CCA determined
that it had jurisdiction to consider the appellant’s allegations
regarding the release program but denied him relief on the
merits. United States v. Pena, 61 M.J. 776, 777–78 (A.F. Ct.
Crim. App. 2005). This Court affirmed, determining that the
appellant had not presented sufficient proof to warrant relief.
The Court explained:
          When an appellant asks us to review the post-
       trial administration of a sentence, we are typically
       confronted by issues in which the pertinent facts are
       not in the record of trial. In such a case, it is partic-
       ularly important that the appellant provide us with
       a “clear record” of the facts and circumstances rele-
       vant to the claim of legal error.
64 M.J. at 266. This statement is inconsistent with Fagnan in
that it contemplates that a CCA may consider materials out-
side the “entire record” when conducting a review under Arti-
cle 66(c), UCMJ.
  E. Reconciling and Applying the Conflicting Precedents
   The foregoing discussion raises the question of how to rec-
oncile the three categories of cases. The Government argues
that we can accommodate their discord by ruling that CCAs
may consider materials outside the entire record only when
assessing cruel and unusual punishment claims, such as


                                  11
              United States v. Jessie, No. 19-0192/AR
                       Opinion of the Court

those in Erby, and that CCAs cannot consider materials out-
side the entire record in other contexts. In contrast, relying
on Erby, Pena, and White, Appellant argues that appellants
should have the right to supplement the record whenever
they raise claims of constitutional or statutory violations. Ap-
pellant grounds this position principally on the language in
Article 66(c), UCMJ, requiring the CCAs to determine that a
sentence is “correct in law.” 8
    Looking carefully at all of these cases, we do not see a good
reason for disagreeing with Fagnan. 9 The second sentence of
Article 66(c), UCMJ, says: “[The CCA] 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 deter-
mines, on the basis of the entire record, should be approved.”
Article 66(c), UCMJ (emphasis added). The Court in Fagnan,
in our view, correctly interpreted the express requirement
that a CCA base its review on the “entire record” to mean that
a CCA cannot consider matters outside the “entire record.”
We see nothing in the statutory text requiring special treat-
ment for all appeals raising statutory or constitutional
claims. The “entire record” restriction, under the grammar
and punctuation of the second sentence, applies equally
whether the CCA is reviewing a sentence’s correctness in law,



   8  Appellant at times also grounds this position on the “should
be approved” language of Article 66(c), UCMJ. In this context, our
prior decisions have not clearly delineated the difference between
the “correct in law” and sentence appropriateness determinations,
nor specified under which provision post-trial confinement condi-
tion claims fall.
   9  Sometimes we are forced to choose between conflicting prece-
dents, accepting one and overruling the other. Compare United
States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018) (following most
recent precedent), with United States v. Perkins, 78 M.J. 381, 388
(C.A.A.F. 2019) (declining to follow more recent precedent due to
strong reasons to adhere to an earlier precedent). In this case, how-
ever, the question is not whether we must follow one line of prece-
dent and completely reject another, but instead only whether we
should expand recent precedents like Erby into new contexts when
this step would further erode older precedents like Fagnan.




                                 12
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

reviewing a sentence’s correctness in fact, or determining
whether a sentence should be approved. 10
    We also see no reason, in this case, to reconsider the sec-
ond category of precedents described above. Those precedents
have created an exception to Fagnan by allowing courts to
consider affidavits and gather additional facts through a
DuBay hearing when doing so is necessary for resolving is-
sues raised by materials in the record. In the present case,
Appellant did not present any claim regarding confinement
facility policies in his submissions to the convening authority.
Accordingly, nothing in the record raises an issue regarding
those policies. The precedents in the second category, accord-
ingly, have no bearing on this case.
    This leaves only the question whether, in this case, we
should extend the third category of precedents. As described
above, Erby and Pena allowed appellants to raise and present
evidence of claims of cruel and unusual punishment and vio-
lations of Article 55, UCMJ, even though there was nothing
in the record regarding those claims. As we consider this
question, we note that the opinions in Erby and Pena did not
address the language of Article 66(c), UCMJ, that limits a
CCA’s review to the “entire record.” They did not address
Fagnan’s contrary holding. They also identified no limiting
principle regarding the scope of a CCA’s review. If a CCA’s
review authority is limitless, then much of the restrictive
wording in Article 66(c), UCMJ, would be superfluous. See
Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 837
(1988) (explaining that courts should be “hesitant to adopt an
interpretation of a congressional enactment which renders
superfluous another portion of that same law”). Accordingly,
we believe that Fagnan rather than Erby should control in
this case.
   Applying Fagnan now, we start by recognizing that the
“entire record” contains no information about SOP 310 or the
application of the policy to Appellant. Neither the record of


   10  Because both the sentence appropriateness and correctness
in law determinations require a decision based upon the “entire rec-
ord,” we need not determine whether post-trial confinement condi-
tions fall under one or both provisions.



                                13
             United States v. Jessie, No. 19-0192/AR
                      Opinion of the Court

trial nor the other matters attached to the record of trial men-
tion the policy. Instead, Appellant first raised his claims re-
garding the policy in the form of an affidavit, with attach-
ments, submitted to the ACCA. Appellant’s case also differs
from Erby because he has not argued that SOP 310 or its ap-
plication to him violates Article 55, UCMJ, or the Eighth
Amendment. Accordingly, under the interpretation of Article
66(c), UCMJ, established in Fagnan and now affirmed here,
we conclude the ACCA could not have considered this mate-
rial.
   Three important observations about our holding and rea-
soning require attention. First, our decision today cabins but
does not overrule Erby or Pena, with respect to Article 55,
UCMJ, or Eighth Amendment claims. Consistent with the
Government’s proposal for accommodating the discordant
precedents, all we must decide today is that the practice of
considering material outside the record should not be ex-
panded beyond the context of Article 55, UCMJ, and the
Eighth Amendment. We may decide in a future case whether
these holdings with respect to such claims should be over-
ruled, modified, or instead allowed to stand as “aberration[s]”
that are “fully entitled to the benefit of stare decisis” because
they have become established. Flood v. Kuhn, 407 U.S. 258,
282 (1972).
    Second, this decision does not overrule, call into question,
or otherwise affect Brennan or any other decision in the sec-
ond category of cases described above. Those decisions are dis-
tinguishable because they concerned issues raised by materi-
als in the record but not fully resolvable by those materials.
Those decisions also could not be easily cabined because they
have not been as limited in their subject matter as decisions
in the third category of cases, which have concerned only
Eighth Amendment and Article 55, UCMJ, post-trial confine-
ment claims. See Parker, 36 M.J. at 272 (identifying prece-
dents in the second category of cases that concern a variety of
issues).
    Third, we note that the parties and the ACCA have dis-
cussed a number of competing policy arguments. For exam-
ple, among other considerations, the majority of the ACCA
observed that inmates generally have other venues, such as



                               14
            United States v. Jessie, No. 19-0192/AR
                     Opinion of the Court

the U.S. district courts, for pursuing remedies for prison con-
ditions. See, e.g., Jessie, 2018 CCA LEXIS 609, at *18, 2018
WL 6892945, at *7 (citing Walden v. Bartlett, 840 F.2d 771,
774–55 (10th Cir. 1988)). The ACCA also reasoned that sen-
tence assessment under Article 66(c), UCMJ, is an imperfect
mechanism for addressing such claims, which other federal
courts can remedy by awarding damages or issuing injunc-
tions. Id. at *18, 2018 WL 6892945, at *7. On the other hand,
Appellant points out that resolving such claims at the CCAs
is often more convenient than pursuing collateral litigation.
A dissenting judge at the ACCA further noted that the CCAs
have not been overly burdened in hearing Eighth Amendment
and Article 55, UCMJ, claims. Id. at *42–43, 2018 WL
6892945, at *18 (Hagler, J., joined by Berger, C.J., dissent-
ing).
    We take no position with respect to any of these competing
policy arguments. We think policy arguments should not
guide our decision in this case because the text of Article
66(c), UCMJ, does not permit the CCAs to consider matters
that are outside the entire record. See Universal Health Servs.
v. United States, 136 S. Ct. 1989, 2002 (2016) (explaining that
“policy arguments cannot supersede the clear statutory text”).
Policy arguments, of course, may guide Congress and the
President in the future if they choose to revise Article 66(c),
UCMJ.
                       III. Conclusion
    We have answered Assigned Issue II in the affirmative by
concluding that the ACCA conducted a valid review under Ar-
ticle 66(c), UCMJ, even though it did not consider Appellant’s
constitutional claims. As a result, we answer Assigned Issue
I, which asks whether the ACCA erred by refusing to consider
specific evidence of Appellant’s confinement conditions, in the
negative. We need not answer Assigned Issue III, which con-
cerns the merits of Appellant’s constitutional claims, because
the documents that Appellant cites to support these claims
are outside the record.
  The decision of the United States Army Court of Criminal
Appeals is affirmed.




                              15
             United States v. Jessie, No. 19-0192/AR


   Judge OHLSON, dissenting.
    The majority holds that when a Court of Criminal Appeals
(CCA) is fulfilling its statutory responsibilities under Article
66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(c) (2012), and determining whether a sentence is correct
in law and fact and should be approved, the CCA is prohibited
from allowing the parties to supplement the record except in
those tightly circumscribed instances where the appellant
raises Eighth Amendment and Article 55, UCMJ, 10 U.S.C.
§ 855 (2012), claims. I disagree. In my view, this Court’s
caselaw authorizes a CCA to supplement the record in addi-
tional contexts where the CCA concludes that such a step is
necessary in order for it to perform its statutory duties under
Article 66(c), UCMJ, in an effective and informed manner.
Therefore, I respectfully dissent.
    The majority squarely roots its holding in this case on the
wording of Article 66(c) and on our decision in United States
v. Fagnan, 12 C.M.A. 192, 30 C.M.R. 192 (1961). Specifically,
the majority first highlights the language in Article 66(c) that
states that a CCA must make its sentence appropriateness
determination “on the basis of the entire record.” The major-
ity then emphasizes that in Fagnan, this Court interpreted
the phrase “entire record” as meaning only the “record of
trial” and “allied papers.” 12 C.M.A. at 194, 30 C.M.R. at 194.
I view this inordinately restrictive view of this issue as mis-
guided.
    To begin with, the reference in Article 66(c), UCMJ, to the
CCA making its sentence appropriateness determination “on
the basis of the entire record” should be seen as a transpar-
ency and due process requirement rather than as a limitation
on the powers of the CCA to supplement the record. That is,
the purpose of this provision is to ensure that a decision by
the CCA is not based on matters outside the record and that
the parties are informed ahead of time of evidence the CCA
will rely upon in reaching its decision. (See United States v.
Holt, where this Court held that a CCA is precluded from con-
sidering “extra-record” materials when making a sentence ap-
propriateness determination. 58 M.J. 227, 232 (C.A.A.F.
2003) (citation omitted) (internal quotation marks omitted).)
I see nothing in the language of Article 66(c) that precludes
the CCA from allowing the parties to supplement the record if
             United States v. Jessie, No. 19-0192/AR
                  Judge OHLSON, dissenting

that court deems it necessary in order to perform its statuto-
rily mandated duties, and then basing its sentence appropri-
ateness determination on “the entire record,” which would in-
clude this supplemental material.
    Next, I conclude that the majority’s reliance on Fagnan as
controlling precedent is misplaced. To be clear, if Fagnan
stood alone as the only case to address this issue, I would
likely agree with the majority’s conclusion. But as the major-
ity admirably recounts in its own opinion, that is hardly the
situation.
    For example: In United States v. Brennan, 58 M.J. 351
(C.A.A.F. 2003), the appellant sought sentence relief based on
her post-trial confinement conditions, and this Court consid-
ered the appellant’s affidavit on this topic even though it had
not been submitted to the convening authority and was not
part of “the entire record.” In United States v. Parker, 36 M.J.
269, 272 (C.M.A. 1993), this Court noted that we have author-
ized post-trial hearings pursuant to United States v. DuBay,
17 C.M.A. 147, 149, 37 C.M.R. 411, 413 (1967), “in a growing
miscellany of circumstances where extra-record fact determi-
nations were necessary predicates to resolving appellate
questions.” In United States v. Boone, 49 M.J. 187, 193
(C.A.A.F. 1998), the appellant raised an ineffective assistance
of counsel claim, and this Court noted that “there are legiti-
mate and salutary reasons for the now-Court of Criminal Ap-
peals to have the discretion to obtain evidence by affidavit,
testimony, stipulation, or a factfinding hearing, as it deems
appropriate.” In United States v. Erby, 54 M.J. 476, 479
(C.A.A.F. 2001), the appellant sought sentence relief based on
his post-trial confinement conditions, and this Court re-
manded the case to the CCA for “whatever factfinding is re-
quired … [in order to] review the merits of appellant’s claims
under Article 66(c), and determine what relief, if any, is ap-
propriate.” And in United States v. Pena, 64 M.J. 259, 266–67
(C.A.A.F. 2007), the appellant sought sentence relief based on
his post-trial confinement conditions, and this Court deemed
his “declaration” on this topic as being insufficient not be-
cause it was not part of the record that went to the convening
authority but because it consisted of mere “generalized state-
ments.” See also United States v. White, 54 M.J. 469, 472
(C.A.A.F. 2001). The Pena Court stated:




                               2
              United States v. Jessie, No. 19-0192/AR
                   Judge OHLSON, dissenting

       When an appellant asks us to review the post-trial
       administration of a sentence, we are typically con-
       fronted by issues in which the pertinent facts are not
       in the record of trial. In such a case, it is particularly
       important that the appellant provide us with a “clear
       record” of the facts and circumstances relevant to
       the claim of legal error.
64 M.J. at 266 (quoting United States v. Miller, 46 M.J. 248,
250 (C.A.A.F. 1997)).
    In reviewing this caselaw which is not consistent with our
decision in Fagnan, the majority decides to hew to our holding
in the latter case. I disagree with this approach for the rea-
sons cited below.
    First, Fagnan, which was decided nearly sixty years ago,
conflicts with more recent precedent. As this Court recently
stated in United States v. Hardy, “When confronted with con-
flicting precedents, [this Court] generally follow[s] the most
recent decision.” 77 M.J. 438, 441 n.5 (C.A.A.F. 2018).
   Second, there is not just one case that conflicts with the
older Fagnan case—there are several. When it comes to a duel
of precedents, not only recency but also frequency surely
should play a role.
    Third, unlike at the time of the Fagnan decision, a number
of federal circuit courts have now determined that they have
the authority to supplement the record on appeal in special
circumstances. See, e.g., United States v. Rothbard, 851 F.3d
699, 702 (7th Cir. 2017) (supplementing the record to address
the reasonableness of the district court’s sentence); 16A
Charles Alan Wright et al., Federal Practice and Procedure
§ 3956.4 (5th ed. 2019). Given this federal civilian practice,
the judicial nature of the CCAs would support, not preclude—
as suggested by Fagnan—supplementation of the record on
appeal in appropriate instances. This is especially true in
light of the fact that the CCAs are unique appellate courts
with “unrivaled statutory powers.” United States v. Kelly, 77
M.J. 404, 405 (C.A.A.F. 2018). Their “scope of review … differs
in significant respect from direct review in the civilian federal
appellate courts” to include that a CCA “conducts a de novo
review of the sentence under Article 66(c) as part of its re-
sponsibility to make an affirmative determination as to sen-
tence appropriateness.” United States v. Roach, 66 M.J. 410,




                                   3
             United States v. Jessie, No. 19-0192/AR
                  Judge OHLSON, dissenting

412 (C.A.A.F. 2008). If the more limited federal circuit courts
have the authority to supplement the record on appeal, then
the CCAs’ uniquely broad authority under Article 66(c)
clearly weighs in favor of also allowing the CCAs to determine
when to allow supplementation.
    Fourth, unlike in the federal civilian court system, there
is “no mechanism set out in the Uniform Code of Military Jus-
tice for this Court or the [CCAs] to evaluate … post-conviction
claims,” and thus DuBay hearings—which were adopted more
than fifty years ago—have “proved to be a useful tool” in this
regard. United States v. Polk, 32 M.J. 150, 152–53 (C.M.A.
1991). In other words, the military justice system does not
have a procedure in place, such as in the federal civilian court
system, where collateral litigation is used to address claims
that cannot be resolved on the basis of the material already
contained in the record. DuBay hearings help to fill that role.
This process has a long history in the military, is not unduly
burdensome, can provide adequate relief to aggrieved service-
members in a timely manner under a host of circumstances,
and can keep the issue “in house” rather than requiring the
servicemember to resort to the civilian legal system to vindi-
cate his or her rights that were allegedly violated by the mil-
itary.1 And yet, despite the multitude of cases over more than
fifty years where the CCAs and this Court have employed this
procedure, the majority explicitly notes that in a future case
it may seek to overturn long-standing precedent and thereby
further limit an appellant’s ability to supplement the record—
even in those instances where the alleged violation of rights

   1  The majority seems to accept the CCA’s claim that civilian
federal courts can award damages to military prisoners. (“[T]he ma-
jority of the ACCA observed that inmates generally have other ven-
ues, such as the U.S. district courts, for pursuing remedies for
prison conditions.” See, e.g., Jessie, 2018 CCA LEXIS 609, at *18,
2018 WL 6892945, at *7 (citing Walden v. Bartlett, 840 F.2d 771,
774–55 (10th Cir. 1988)).” United States v. Jessie, __ M.J. __, __
(14―15) (C.A.A.F. 2020).) However, this claim offers false hope
given that the Feres doctrine prohibits lawsuits by military prison-
ers against the federal government. See Schnitzer v. Harvey, 389
F.3d 200, 203 (D.C. Cir. 2004) (“Every circuit to consider the issue
[of whether and how the Feres doctrine applies to military prison-
ers], however, has found the doctrine to apply without modifica-
tion.”).




                                 4
              United States v. Jessie, No. 19-0192/AR
                   Judge OHLSON, dissenting

rises to constitutional dimensions. Specifically, the majority
states:
       We may decide in a future case whether these hold-
       ings with respect to such claims [i.e., whether prece-
       dents authorizing the supplementation of the rec-
       ord—such as through DuBay hearings—in those
       cases where Article 55, UCMJ, and Eighth Amend-
       ment claims are raised,] should be overruled, modi-
       fied, or instead allowed to stand as “aberration[s]”
       that are ‘fully entitled to the benefit of stare decisis’
       because they have become established. Flood v.
       Kuhn, 407 U.S. 258, 282 (1972).
Jessie, __ M.J. at __ (14) (second alteration in original). This
is an ominous pronouncement.2
   Fifth, the rationale of the majority opinion brings into
question the validity of this Court’s own rules and practices.
Specifically, Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2012),
states that this Court “shall review the record,” but then
C.A.A.F. R. 30A of this Court’s Rules of Practice and Proce-
dure allows this Court to consider new material on motion
from a party for issues that were not raised by the record.3
(Emphasis added.) It is odd indeed if this Court, which does
not have the same factfinding and review authority as a CCA,
has the power to supplement the record but a CCA does not.
    In light of these factors, I conclude that the majority is
mistaken in concluding that the CCA was prohibited from
considering the materials submitted by Appellant regarding
the conditions of his post-trial confinement. Indeed, in regard
to the disposition of the instant case, I would remand the case


   2  The majority also states that its decision does not overrule or
call into question those decisions that fall within the second cate-
gory of cases identified in its opinion. However, as my colleague
Judge Sparks observes, the logic of the majority opinion would seem
to limit the CCAs to the record reviewed by the convening authority
even for this second category of cases.
   3  I note two recent examples in which we have permitted sup-
plementation of the record to grant reconsideration to address is-
sues that were not raised by materials in the record. See United
States v. Springer, 79 M.J. 138 (2019) (summary disposition);
United States v. Barry, 76 M.J. 407 (C.A.A.F. 2017) (summary dis-
position).




                                  5
            United States v. Jessie, No. 19-0192/AR
                 Judge OHLSON, dissenting

to the CCA. Pursuant to this remand, I would emphasize that
in the course of conducting their Article 66, UCMJ, review,
the CCA has broad discretion to permit the parties to supple-
ment the record. Because the majority holds to the contrary,
I respectfully dissent.




                              6
             United States v. Jessie, No. 19-0192/AR


   Judge SPARKS, dissenting.

    I agree with the majority’s assessment of the three differ-
ent lines of precedent related to the court of criminal appeals’
consideration of materials outside the record as part of an Ar-
ticle 66(c), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 866(c) (2012), sentence appropriateness review.
However, like my colleague Judge Ohlson, I am troubled by
the decision to cabin off the entire line of precedent constitut-
ing the majority’s third category, those cases that allow the
lower courts to consider material outside the record for a lim-
ited class of issues not raised by anything in the record.
    United States v. Fagnan, 12 C.M.A. 192, 30 C.M.R. 192,
194 (1961), is nearly sixty years old and involves an appel-
lant’s request for what is essentially clemency, a reduction of
his sentence based on good behavior. I am reluctant to use
this as the basis for denying a more liberal interpretation of
“the entire record” in cases following in the footsteps of
United States v. Erby, 54 M.J. 476 (C.A.A.F. 2001), and
United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007), which
raised serious questions of sentence appropriateness rather
than just clemency. The majority is correct that Article 66,
UCMJ, instructs the lower courts to review issues “on the
basis of the entire record.” But it also entrusts the lower
court with the weightier responsibility of ensuring an ac-
cused’s sentence is “correct in law.” Confining our review
only to the existing record, without exception, would limit
the lower court’s ability to do this.
    Sentence appropriateness is a somewhat fluid issue. It is
conceivable that sentencing issues could arise or ripen or
come to defense counsel’s attention only after the convening
authority has acted. To my mind, the courts of criminal ap-
peals are bound, under Article 66, UCMJ, to consider any col-
orable constitutional claim related to sentence appropriate-
ness even if that requires review of documents outside the
record of trial. The line of cases extending from Erby and Pena
should not be considered “aberration[s].” United States v. Jes-
sie, __ M.J. __ (14) (C.A.A.F. 2020) (alteration in original) (in-
ternal quotation marks omitted) (citation omitted). To the
contrary, the lower court’s right to consider matters beyond
the record to resolve claimed violations of the Eighth Amend-
ment and Article 55, UCMJ, 10 U.S.C. § 855 (2012), should
justifiably extend to the resolution of other credible constitu-
tional claims. Once it has evaluated all the information avail-
able to it, the lower court has the discretion to determine
            United States v. Jessie, No. 19-0192/AR
                   Judge SPARKS, Dissent

whether the appellant’s constitutional rights have been in-
fringed upon and whether the court is in a position to fashion
a plausible remedy. The fact that an appellant did not raise a
sentencing issue with the military judge or convening author-
ity simply should not bar consideration of a legitimate consti-
tutional claim.
    Though the majority opinion is clear about its narrow ap-
plication, I nonetheless have concerns that, if we rely here
upon a literal interpretation of the phrase “on the basis of
the entire record,” nothing in Article 66, UCMJ, would limit
such strict application to only cases involving sentencing re-
view. This Court has frequently reviewed cases from the
courts of criminal appeals in which the trial record has been
supplemented on appeal. See, United States v. Navarette, 79
M.J. 123, 125―26 (C.A.A.F. 2019) (as part of a motion for a
Rule for Courts-Martial 1203(c)(5) mental health inquiry,
the lower court considered the appellant’s discharge paper-
work following a post-trial hospitalization for psychiatric
care); United States v. Datavs, 71 M.J. 420, 423 (C.A.A.F.
2012) (in an ineffective assistance of counsel claim, the lower
court considered multiple supplemental affidavits and re-
ports relevant to trial defense counsel’s performance). If we
were to extend the logic of the majority, would not the lower
courts be confined to “the entire record” when considering
these cases as well?
   Given these concerns, I respectfully dissent.




                              2
