       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE ARMED        FORCES
                         _______________

                       UNITED STATES
                          Appellant
                                v.
             Gavin B. ATCHAK, Airman Basic
              United States Air Force, Appellee
                         No. 16–0054
                      Crim. App. No. 38526
       Argued February 23, 2016—Decided April 12, 2016
     Military Judges: Michael A. Lewis and Mark L. Allred
For Appellant: Captain J. Ronald Steelman III (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
For Appellee: Captain Michael A. Schrama (argued); Captain
Travis L. Vaughan (on brief); Major Isaac C. Kennen.
Judge RYAN delivered the opinion of the Court, in which Chief
Judge ERDMANN, Judges STUCKY and OHLSON, and Senior
Judge COX, joined.
                   _______________

   Judge RYAN delivered the opinion of the Court.
    A military judge sitting as a general court-martial con-
victed Appellee, consistent with his pleas, of two specifica-
tions of violating a lawful order, one specification of derelic-
tion of duty, and three specifications of aggravated assault
in violation of Articles 92 and 128, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 892, 928 (2012). Appellee was
sentenced to thirty-six months of confinement, forfeiture of
all pay and allowances, and a bad-conduct discharge. The
convening authority approved the sentence as adjudged. The
United States Air Force Court of Criminal Appeals (AFCCA)
set aside and dismissed the three specifications of aggravat-
ed assault and reduced Appellee’s sentence to eight months
of confinement and a bad-conduct discharge. United States v.
Atchak, No. ACM 38526, 2015 CCA LEXIS 328, at *41, 2015
WL 5139087, at *13 (A.F. Ct. Crim. App. Aug. 10, 2015) (un-
published).
   The Judge Advocate General certified the following issue:
     Whether the Air Force Court of Criminal Ap-
     peals erred in setting aside and dismissing the
              United States v. Atchak, 16-0054/AF
                     Opinion of the Court

     specifications of aggravated assault without au-
     thorizing the convening authority to order a re-
     hearing for the lesser included offenses of as-
     sault consummated by a battery.
    We answer the certified question in the negative: the
plain language of Article 66(d), UCMJ, 10 U.S.C. § 866(d),
provides that when a CCA sets aside findings, it “may … or-
der a rehearing,” and if it does not, “it shall order that the
charges be dismissed.” Id. (emphasis added). We decline the
Government’s invitation to transform the permissive statu-
tory “may” into a mandatory “must.” See United States v.
Rodgers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when
used in a statute, usually implies some degree of discre-
tion.”). The only command under Article 66(d), UCMJ, is
that a CCA must dismiss charges when it does not authorize
a rehearing on a finding it has disapproved. Cf. Lopez v. Da-
vis, 531 U.S. 230, 241 (2001) (“Congress’ use of the permis-
sive ‘may’ … contrasts with the legislators’ use of a manda-
tory ‘shall’ in the very same section.”). Nor was the AFCCA’s
action an abuse of discretion or miscarriage of justice.
                            I. FACTS
    After learning of his HIV-positive status and receiving a
“Preventative Measures Requirements Order” requiring Ap-
pellee “to verbally inform sexual partners that he was HIV
positive prior to engaging in sexual relations and to use
proper methods to prevent the transfer of bodily fluids dur-
ing those relations,” Atchak, 2015 CCA LEXIS 328, at *3–4,
2015 WL 5139087, at *1, Appellee engaged in unprotected
sexual acts with two servicemembers.
   In January or February 2012, Appellee and Airman First
Class (A1C) W drank vodka in Appellee’s dorm room, and
both became intoxicated. Appellee either passed out or fell
asleep on his bed. A1C W, who was sitting in a chair next to
Appellee, stood up but then felt dizzy, so he lay down on the
bed next to Appellee. According to the stipulation of fact,
Appellee leaned over A1C W and said “no homo,” and “while
[A1C W] was lying on the bed, he noticed that [Appellee] had
his mouth on [A1C W’s] penis.” A1C W pushed Appellee off
and left the dorm room. A1C W was aware of Appellee’s
HIV-positive status prior to this incident.




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                 United States v. Atchak, 16-0054/AF
                        Opinion of the Court

    On July 17, 2012, Appellee had unprotected oral and
anal sex with A1C L. 1 A1C L may have been unaware of Ap-
pellee’s HIV-positive status during their first sexual encoun-
ter but learned of it prior to having unprotected anal sex
with Appellee on two later occasions.
    The above encounters served as the basis for both the Ar-
ticle 92, UCMJ, orders violation specifications and the speci-
fications of aggravated assault with a means likely to pro-
duce death or grievous bodily injury in violation of Article
128, UCMJ, to which Appellee pleaded guilty. An individual
cannot consent to aggravated assault. United States v.
Bygrave, 46 M.J. 491, 493 (C.A.A.F. 1997). During the provi-
dence inquiry, the military judge explained that consent was
not a defense to aggravated assault under the circumstanc-
es, and Appellee stated that he understood. The Government
did not address the issue of consent beyond what the mili-
tary judge explained to Appellee.
                          II. AFCCA DECISION
    The aggravated assault charges were brought prior to
this Court’s decision in United States v. Gutierrez, in which
this Court held that grievous bodily harm was not “likely” to
occur in the context of HIV exposure when there was a 1-in-
500 chance of transmission. 74 M.J. 61, 66–67 (C.A.A.F.
2015). On appeal, the AFCCA held that in light of this
Court’s decision in Gutierrez, 74 M.J. 61, there was a sub-
stantial basis in law for questioning Appellee’s pleas to the
aggravated assault specifications. Atchak, 2015 CCA LEXIS
328, at *4–18, 2015 WL 5139087, at *3–6. The AFCCA held
that “the uncontroverted evidence is that [Appellee’s] risk of
transmitting HIV under all these circumstances was even
lower than the risk found insufficient in Gutierrez.” Atchak,
2015 CCA LEXIS 328, at *9, 2015 WL 5139087, at *3; see
also id. at *13–15, *16–17, 2015 WL 5139087, at *4–5, *6.
As a result, Appellee’s conduct did not satisfy the “means
likely to produce death or grievous bodily harm” element as
construed by Gutierrez. Atchak, 2015 CCA LEXIS 328, at *9,
*13–15, *16–17, 2015 WL 5139087, at *3, *4–5, *6.
   Furthermore, the AFCCA held that, in light of the rec-
ord, it could not affirm a conviction of the lesser included of-
fense (LIO) of assault consummated by battery for any of the
aggravated assault specifications because informed consent

1   A1C L is also referred to as AB W in the record.




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              United States v. Atchak, 16-0054/AF
                     Opinion of the Court

is a defense to that offense. Atchak, 2015 CCA LEXIS 328, at
*10–12, *15–16, *17–18, 2015 WL 5139087, at *4, *5, *6; see
also United States v. Greaves, 40 M.J. 432, 433 (C.M.A.
1994). First, the military judge failed to explore the issue of
consent as a defense to assault consummated by a battery
with Appellee. Second, although the parties stipulated that
A1C L did not know about Appellee’s HIV status prior to
their first sexual encounter, according to the AFCCA, “the
record is not clear about when A1C L learned of [Appellee’s]
HIV status.” Atchak, 2015 CCA LEXIS 328, at *15, 2015 WL
5139087, at *5. Finally, with respect to whether A1C W was
substantially incapable of declining to participate in the
sexual activity, the AFCCA found that “the record is not
clear about whether [Appellee] engaged in sexual contact
with A1C W while he was asleep and thus incapable of con-
senting, nor were the legal ramifications of contact with a
sleeping person explained to [Appellee].” Atchak, 2015 CCA
LEXIS 328, at *12, 2015 WL 5139087, at *4.
                        III. DISCUSSION
   The Government asks this Court to order the AFCCA to
authorize a rehearing so that it may have the opportunity to
prove the LIOs of assault consummated by battery.
   We review questions of statutory interpretation de novo.
United States v. Vargas, 74 M.J. 1, 5 (C.A.A.F. 2014). Article
66(d), UCMJ, provides:
     If the [CCA] sets aside the findings and sen-
     tence, it may, except where the setting aside is
     based on lack of sufficient evidence in the record
     to support the findings, order a rehearing. If it
     sets aside the findings and sentence and does
     not order a rehearing, it shall order that the
     charges be dismissed.
    The text of Article 66(d), UCMJ, does not obligate a CCA
to authorize a rehearing. The statute says that a CCA may
order a rehearing; it does not say that it must. “May” is a
permissive term, see United States v. Moss, 73 M.J. 64, 68
(C.A.A.F. 2014), and indicates that Congress intended to
provide the CCAs with discretion on this point. See United
States v. Henderson, 52 M.J. 14, 20 (C.A.A.F. 1999). Al-
though “[t]his common-sense principle ... can be defeated by
indications of legislative intent to the contrary or by obvious
inferences from the structure and purpose of the statute,”
see Rodgers, 461 U.S. at 706 (internal citations omitted),
there are no such indications or inferences here.




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              United States v. Atchak, 16-0054/AF
                     Opinion of the Court

    It is true that, when a substantial basis is found to ques-
tion the providence of a plea, this Court routinely authorizes
a rehearing after setting aside findings. See, e.g., United
States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013); United
States v. Martinelli, 62 M.J. 52, 68 (C.A.A.F. 2005); United
States v. Negron, 60 M.J. 136, 143–44 (C.A.A.F. 2004). But
this Court is not charged with reviewing the entire record
and making an independent assessment of the evidence, see
United States v. Leak, 61 M.J. 234, 241 (C.A.A.F. 2005), and
the fact that this Court authorizes rehearings does not over-
come the statutory language and obligate the CCAs to au-
thorize a rehearing under Article 66(d), UCMJ, when they
set aside findings.
    Although this appears to be an issue of first impression,
we generally review a CCA’s action under Article 66, UCMJ,
for an abuse of discretion. See, e.g., United States v. Winck-
elmann, 73 M.J. 11, 15 (C.A.A.F. 2013). In this case, there is
no indication that the AFCCA was unaware of the option to
remand for a rehearing on the findings it set aside. Indeed,
the Government essentially demanded that the AFCCA
grant such a rehearing in its motions for reconsideration
and reconsideration en banc. Nor, given the AFCCA’s as-
sessment of the state of the record on the question of con-
sent, the state of the law on consent as a defense to assault
consummated by a battery, see United States v. Riggins, 75
M.J. 78, 83–84 (C.A.A.F. 2016), and the CCAs’ ability to in-
dependently assess the facts, see United States v. Cole, 31
M.J. 270, 272 (C.M.A. 1990), was the AFCCA’s decision not
to order a rehearing to permit the Government to try and
prove the LIO of assault consummated by a battery an abuse
of discretion. Cf. United States v. Harris, 53 M.J. 86, 88
(C.A.A.F. 2000) (“We will only disturb the [lower court’s] re-
assessment in order to prevent obvious miscarriages of jus-
tice or abuses of discretion.” (alteration in original) (citation
omitted) (internal quotation marks omitted)).
                          IV. JUDGMENT
   The certified question is answered in the negative, and
the decision of the United States Air Force Court of Criminal
Appeals is affirmed.




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