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

                               No. ACM 39530
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                         Austin C. CARROLL
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 28 January 2020
                          ________________________

Military Judge: Christopher M. Schumann (arraignment); Jennifer E.
Powell.
Approved sentence: Bad-conduct discharge, confinement for 2 months,
reduction to E-2, and a reprimand. Sentence adjudged 12 June 2018 by
GCM convened at Nellis Air Force Base, Nevada.
For Appellant: Captain M. Dedra Campbell, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Zachary T. West, USAF; Mary Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief 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    This is an unpublished opinion and, as such, does not serve as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 30.4.
                          ________________________

J. JOHNSON, Chief Judge:
    A general court-martial composed of a military judge alone convicted Ap-
pellant, in accordance with his pleas pursuant to a pretrial agreement (PTA),
of one specification of assault consummated by a battery in violation of Article
                     United States v. Carroll, No. ACM 39530


128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. 1,2 The military
judge sentenced Appellant to a bad-conduct discharge, confinement for two
months, reduction to the grade of E-2, forfeiture of $1,000.00 pay per month
for four months, and a reprimand. The convening authority disapproved the
forfeitures of pay and approved the remainder of the sentence.
    Appellant raises eight issues on appeal: (1) whether the military judge
abused her discretion in allowing rebuttal testimony from Appellant’s squad-
ron commander regarding Appellant’s deployments; (2) whether trial defense
counsel’s failure to take steps to obtain access to classified information denied
Appellant effective assistance of counsel; (3) whether Appellant’s inability to
discuss classified information with his appellate defense counsel denied him
the right to counsel; (4) whether a missing appellate exhibit constitutes a sub-
stantial omission from the record of trial that warrants relief; (5) whether Ap-
pellant’s sentence was inappropriately severe; (6) whether the Government vi-
olated Appellant’s right to speedy trial under Article 10, UCMJ, 10 U.S.C. §
810; (7) whether Appellant was denied his right to counsel when he was pro-
hibited from contacting his counsel for five days while in pretrial confinement;
and (8) whether trial counsel committed prosecutorial misconduct by failing to
provide a nonparticipation memorandum signed by the victim to the convening
authority prior to referral of the charges. 3,4 With respect to issues (7) and (8),
we have carefully considered Appellant’s contentions and find they do not re-
quire further discussion or warrant relief. See United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987). With respect to the remaining issues, we find no ma-
terial prejudice to Appellant’s substantial rights and we affirm the findings
and sentence.



1 All references in this opinion to the Uniform Code of Military Justice (UCMJ) and
Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States
(2016 ed.).
2 Appellant pleaded guilty to a lesser included offense of the charged offense of aggra-
vated assault with a dangerous weapon likely to produce death or grievous bodily harm
in violation of Article 128, UCMJ. The Government did not attempt to prove the
greater offense. In addition, one specification of wrongful possession of a controlled
substance, one specification of abusive sexual contact, one specification of indecent ex-
posure, and one specification of wrongfully communicating a threat in violation of Ar-
ticles 112a, 120, 120c, and 134, 10 U.S.C. §§ 912a, 920, 920c, 934, were withdrawn and
dismissed with prejudice after arraignment.
3Appellant personally asserts issues (6), (7), and (8) pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
4 We have modified the order of the issues from the order in which they are presented
in Appellant’s brief.


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                   United States v. Carroll, No. ACM 39530


                               I. BACKGROUND
    Appellant entered active duty service in the Air Force in March 2008 and
joined the communications career field. Over the course of his career Appellant
was based at permanent duty stations in Virginia, Ohio, and Nevada. Between
2010 and 2017, Appellant deployed overseas to Japan, Afghanistan, Kuwait,
Afghanistan again, and South Korea, for periods of six months or less. Begin-
ning in 2017, Appellant experienced increasing behavioral and disciplinary
problems. During this period, Appellant met and became friends with AR, a
civilian woman who lived in the local community in Las Vegas, Nevada, with
whom he would sometimes meet to discuss various issues in their lives.
    On the night of 25 November 2017, AR invited Appellant to come to her off-
base residence to talk. Appellant did so, bringing a pistol, a loaded magazine,
and alcohol. After Appellant arrived, he placed the pistol and magazine on a
countertop. This did not particularly alarm AR, because her boyfriend at the
time also carried firearms. Appellant and AR sat on a couch, drank alcohol,
and talked about problems in their lives. At some point, Appellant picked up
the pistol and began to wave it around. Appellant expressed frustration with
his command and stated, “I have killed people during my time in the Air Force
and killing someone would make me feel better,” or words to that effect. When
AR asked Appellant how he would kill them, Appellant approached AR and
held the pistol to her head, pressing the barrel of the weapon against her tem-
ple for approximately two seconds.
   Shortly thereafter Appellant passed out on AR’s couch. Upset, AR made a
video call to a friend. During the call, AR put Appellant’s pistol in her mouth
and under her chin. The friend urged AR to stop, instructed her to wait outside,
and drove to her residence. After AR’s friend arrived, he convinced AR to call
the civilian police, who eventually responded.
    As a result of this incident and other earlier allegations not involving AR,
Appellant was placed in military pretrial confinement on 27 November 2017
and remained there until his trial. Appellant’s squadron commander preferred
a total of five charges and specifications against Appellant on 5 February 2018,
including inter alia aggravated assault against AR with a dangerous weapon
likely to produce death or grievous bodily harm and communicating a threat
against AR in violation of Articles 128 and 134, UCMJ. Appellant was ar-
raigned on 21 March 2018. On 5 June 2018, the three charges and specifica-
tions unrelated to AR were withdrawn and dismissed with prejudice, leaving
only the charges and specifications of aggravated assault and communicating
a threat.
   The court-martial resumed on 7 June 2018, when the military judge con-
ducted a closed hearing on a defense motion to obtain mental health records


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                    United States v. Carroll, No. ACM 39530


pursuant to Mil. R. Evid. 513. The court-martial recessed for the day at the
conclusion of that hearing.
    On 8 June 2018, Appellant entered a PTA with the convening authority
whereby Appellant agreed, inter alia, to be tried by a military judge alone, to
enter a reasonable stipulation of fact, to “waive all waivable motions,” and to
plead guilty to the lesser included offense of assault consummated by a battery
against AR, in violation of Article 128, UCMJ. In return, the convening author-
ity agreed, among other terms, to withdraw and dismiss with prejudice the
charge of communicating a threat. When trial resumed on 12 June 2018, Ap-
pellant pleaded guilty to the lesser included offense in accordance with the
PTA. After an appropriate inquiry, the military judge found Appellant guilty
in accordance with his pleas.
    During presentencing proceedings, the Defense called Appellant’s then-
spouse, Ms. VC, to testify. Ms. VC stated, inter alia, that after Appellant re-
turned from his second deployment, which was to Afghanistan, she thought he
suffered from post-traumatic stress disorder (PTSD). According to Ms. VC, Ap-
pellant’s symptoms included nightmares and “fight or flight responses,” during
which Appellant would become very anxious in public places. Ms. VC testified
that after Appellant’s third deployment, which was to Kuwait, “[h]e didn’t have
too many issues . . . he still had a few nightmares, but it wasn’t as bad as be-
fore.” However, Ms. VC stated that after Appellant’s fourth deployment he was
“worse” compared to after his second deployment, “definitely down,” “de-
pressed,” “very quiet,” and “changed.” Finally, Ms. VC testified that after Ap-
pellant’s fifth deployment, which she said lasted “a few months,” the “PTS[D]
symptoms came back, but worse.” These symptoms included “[n]ight sweats,
[Appellant] jumping up in the middle of the night screaming, [Appellant] jump-
ing out of bed and looking for his gun,” and “panic attack[s].”
   Among other exhibits, the Defense introduced a portion of the report of an
inquiry into Appellant’s mental capacity and mental responsibility ordered by
the military judge pursuant to Rule for Courts-Martial (R.C.M.) 706. The re-
port concluded that at the time of the offense, Appellant suffered from several
mental disorders, including anxiety disorder and PTSD associated with his de-
ployments, and alcohol dependence that developed from his inability to cope
with his anxiety and PTSD. 5
    Appellant described the effects of his deployments in his oral unsworn
statement to the court. Appellant stated:




5 Notwithstanding these disorders, the report concluded Appellant was able to appre-
ciate the quality and wrongfulness of his conduct. See R.C.M. 916(k).


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                   United States v. Carroll, No. ACM 39530


       I’ve had five total deployments. All of the aspects of my last two
       are classified . . . . After returning from a fourth deployment, my
       symptoms got far worse than before. I began to start experienc-
       ing issues and [sic] September 2016. Constant nightmares, anx-
       iety and panic attacks, hypervigilance, withdrawing from a fam-
       ily, fight or flight responses inside of stores, and a bout of severe
       depression. Once I began having panic attacks at work in De-
       cember 2016, I sought out help from the military. . . . This was
       the first time that I’ve been diagnosed with PTSD . . . . Right af-
       ter I began treatment [ ], I had my fifth deployment during that
       time, which exacerbated my symptoms even more. . . . I had bi-
       polar memories as far back as 2012 after my . . . second deploy-
       ment . . . . But it was manageable at the time. Each subsequent
       deployment just added to the power of the racing thoughts of
       what I had seen and lived through.
    The Defense also submitted a written unsworn statement by Appellant
which provided more detail about his career, and particularly his second and
third deployments to Afghanistan and Kuwait, respectively. According to the
statement, the details of Appellant’s fourth and fifth deployments to “undis-
closed locations” in 2016 and early 2017 were “classified,” although with re-
spect to the fourth deployment Appellant related, “We did however neutralize
multiple High Value Targets . . . .” As in his oral statement, Appellant’s writ-
ten statement indicated his mental state significantly worsened after his
fourth deployment, and was exacerbated by his fifth deployment.
    After the Defense rested its presentencing case, the Government indicated
it intended to call Appellant’s squadron commander, Lieutenant Colonel
(Lt Col) SG, as a rebuttal witness. Senior trial counsel explained that Lt Col
SG was familiar with Appellant’s fourth and fifth deployments. As to Appel-
lant’s fourth deployment, which was to Afghanistan, senior trial counsel prof-
fered that Lt Col SG would testify that Appellant’s role was to set up commu-
nications on the base, that he was not required to leave the base, and that
neither Appellant “nor anyone else in the unit would have seen any type of
combat.” Lt Col SG would further testify that Appellant’s “fifth deployment
was to a first world country that hasn’t had combat . . . in over 60 years,” and
that the deployment lasted only ten days. Senior trial counsel explained, “we
believe this is rebuttal to the extent that [Appellant] has led this court to be-
lieve that his fourth and fifth deployments were combat and he came back with
all this combat stress and PTSD that it since led to some of his actions.”
   Appellant’s civilian defense counsel, Mr. RC, objected to Lt Col SG’s testi-
mony. He conceded that Appellant’s fifth deployment lasted only “two weeks,”
and Ms. VC was mistaken when she testified it lasted “a few months;” however,


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                   United States v. Carroll, No. ACM 39530


the Defense would “stipulate any time the Government wants for that partic-
ular purpose.” However, Mr. RC contended the proffered testimony was other-
wise not proper rebuttal because Appellant did not claim to have experienced
“combat” during his fourth and fifth deployments. Mr. RC continued:
       As far as the undisclosed location goes, I’ll be frank with you
       Ma’am. [Lt Col SG] specifically told me in a meeting, and [sic]
       the witness room, about 15 minutes ago, he does not want to get
       up and talk about this. Primarily, because so much of it is clas-
       sified. And that it’s [sic] been my problem all along, Ma’am. I
       have documents in [sic] classified. I have documents thing [sic]
       undisclosed location. As a matter of proffer before this Court,
       this morning, to get clarity, [Appellant’s] First Sergeant told me
       yes, they are undisclosed locations, to the extent that you can
       say yes he was in Korea, or yes you can say he was in Afghani-
       stan. But the specifics of the job, and what he was doing, more
       specifically where he was, that is all classified. And I’m ham-
       strung here, Ma’am. I can’t look into these. I have no way to re-
       but what the Government is going to say, because at [sic] [Mil.
       R. Evid.] 505. And we’re getting dangerously close to 505 mate-
       rial.
    The military judge sought clarification: “With reference to the classified
nature of some of [Appellant’s] deployments, and your comment about being
hamstrung, do you believe that in any way that your results of advocacy [sic]
of [Appellant] has been impaired?” Mr. RC replied:
       No, Ma’am. However, we’ve [sic] will be coming dangerously
       close to that point, if the Government is allowed to put forth ev-
       idence, quite frankly, that my client is telling me is classified. At
       that point, Ma’am, I’m at a point where I either have to accept
       what the Government says, or we’re going to have to delay this
       so that I can file an appropriate [Mil. R. Evid.] 505 motion to
       figure out exactly what part of it was undisclosed, what part of
       it is not disclosed, where he was in Korea, was he in Korea the
       entire time, what was his job there, what wasn’t his job
       there. . . .
    After additional argument, the military judge overruled the Defense’s ob-
jection to Lt Col SG’s testimony, which she found relevant to “repel, counteract,
[and] disprove” the impression that Appellant’s fourth and fifth deployments
worsened his PTSD symptoms. The military judge conducted a balancing test
pursuant to Mil. R. Evid. 403 and found the probative value of the proffered
evidence was not substantially outweighed by the danger of unfair prejudice,



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                   United States v. Carroll, No. ACM 39530


wasting time, misleading the court, or any other countervailing interest. How-
ever, she directed counsel for both sides not to “go into” any information that
would potentially be classified.
    When called, Lt Col SG provided brief rebuttal testimony regarding Appel-
lant’s fourth and fifth deployments. According to Lt Col SG, in May 2016 Ap-
pellant deployed to Kandahar, Afghanistan, as part of a reconnaissance squad-
ron. Appellant’s role was to “set up” secure and non-secure communication net-
works for the unit; Appellant had no “outside-the-wire missions” and saw no
combat of any sort during that deployment. Lt Col SG testified Appellant’s fifth
deployment to an “undisclosed location” lasted ten days and was to a “first
world country” where no combat was occurring. On cross-examination, Mr. RC
clarified that Lt Col SG was not Appellant’s commander during either the
fourth or fifth deployment.

                                II. DISCUSSION
A. Lt Col SG’s Rebuttal Testimony
   1. Law
    We review a military judge’s decision to admit sentencing evidence for an
abuse of discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009)
(citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). “The abuse
of discretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreasona-
ble,’ or ‘clearly erroneous.’” United States v. McElhaney, 54 M.J. 120, 130
(C.A.A.F. 2000) (citing United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997);
United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)). “A military judge
abuses his discretion when: (1) the findings of fact upon which he predicates
his ruling are not supported by the evidence of record; (2) if incorrect legal
principles were used; or (3) if his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F.
2008)).
    The legal function of rebuttal evidence is to “explain, repel, counteract or
disprove the evidence introduced by the opposing party.” United States v. Saf-
erite, 59 M.J. 270, 274 (C.A.A.F. 2004) (quoting United States v. Banks, 36 M.J.
150, 166 (C.M.A. 1992)) (additional citations omitted). “The scope of rebuttal is
defined by evidence introduced by the other party.” Banks, 36 M.J. at 166 (ci-
tations omitted). “Rebuttal evidence, like all other evidence, may be excluded
pursuant to [Mil. R. Evid.] 403 if its probative value is substantially out-
weighed by the danger of unfair prejudice.” Saferite, 59 M.J. at 274 (citing
United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001). “Where a military


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                   United States v. Carroll, No. ACM 39530


judge properly conducts a balancing test under Mil. R. Evid. 403, we will not
overturn his decision unless there is a clear abuse of discretion.” United States
v. Ruppel, 49 M.J. 247, 251 (C.A.A.F. 1998) (citations omitted).
   Whether an error is harmless is a question of law we review de novo. United
States v. Bowen, 76 M.J. 83, 87 (C.A.A.F. 2017) (quoting United States v.
McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)). “When there is error in the ad-
mission of sentencing evidence, the test for prejudice ‘is whether the error sub-
stantially influenced the adjudged sentence.’” United States v. Barker, 77 M.J.
377, 384 (C.A.A.F. 2018) (quoting United States v. Sanders, 67 M.J. 344, 346
(C.A.A.F. 2009)). We consider four factors when determining whether an error
had a substantial influence on the sentence: “(1) the strength of the Govern-
ment’s case; (2) the strength of the defense case; (3) the materiality of the evi-
dence in question; and (4) the quality of the evidence in question.” Id. (citations
omitted).
   2. Analysis
    Lt Col SG’s testimony was proper rebuttal evidence to Ms. VC’s testimony
and Appellant’s unsworn statements introduced by the Defense. The Defense
portrayed that Appellant’s fourth and fifth deployments significantly worsened
his PTSD symptoms, and implied that these deployments had been traumatic
experiences. Lt Col SG’s rebuttal testimony tended to counteract that impres-
sion by minimizing the extent to which Appellant witnessed or was exposed to
combat, and clarified that the fifth deployment was much shorter than Ms. VC
indicated in her testimony. See Saferite, 59 M.J. at 274.
    In contrast to Mr. RC’s argument at trial, who attempted to minimize the
extent to which Lt Col SG’s proffered testimony was inconsistent with Appel-
lant’s assertions, on appeal Appellant asserts Lt Col SG’s testimony “directly
contradicted the defense’s evidence and undercut their entire mitigation case.”
Nevertheless, Appellant asserts the military judge abused her discretion be-
cause the probative value of Lt Col SG’s testimony was outweighed by the dan-
ger of unfair prejudice, and therefore should have been excluded under Mil. R.
Evid. 403. Specifically, Appellant argues the Government “was permitted to
unfairly skirt the lines of classified information in order to dispute the validity
of [Appellant’s] PTSD symptoms,” because the Defense could not meaningfully
cross-examine Lt Col SG “without getting into classified material.”
    Where, as in this case, the military judge conducted a proper Mil. R. Evid.
403 balancing test on the record, we will not overturn her decision unless we
find a clear abuse of discretion. Ruppel, 49 M.J. at 251. We do not find a clear
abuse of discretion here, because the military judge could reasonably conclude
the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice.


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                   United States v. Carroll, No. ACM 39530


    First, Mr. RC asserted to the military judge that the classified nature of
Appellant’s deployments had not impaired his ability to represent Appellant.
Mr. RC suggested his ability to advocate might be threatened “if the Govern-
ment is allowed to put forth evidence . . . that [Appellant] is telling me is clas-
sified;” however, the military judge specifically forbade either party from “go-
ing into” classified matters, and Appellant has not asserted that anything
Lt Col SG testified to was in fact classified.
    Additionally, although Appellant complains that Lt Col SG’s testimony was
“misleading” in some way, he has not identified which if any of Lt Col SG’s
statements were inaccurate. To the extent anything in Lt Col SG’s brief un-
classified testimony was inaccurate, the Defense could have cross-examined
him or presented its own witnesses to testify at a similarly unclassified level.
To the extent the Defense truly believed disclosure of classified information
was necessary in light of Lt Col SG’s testimony, the Defense could have pro-
ceeded pursuant to Mil. R. Evid. 505, a potential course of action Mr. RC spe-
cifically alluded to. However, the Defense elected not to pursue that course.
   Furthermore, Lt Col SG’s testimony, although proper rebuttal evidence,
was of limited significance in the broader context of the sentencing proceed-
ings. Essentially, its effect was to indicate the circumstances of Appellant’s
fourth and fifth deployments were likely not as traumatic as the military judge
might otherwise imagine them to have been, based on the Defense’s presen-
tencing case. However, Lt Col SG’s testimony did not impugn Appellant’s ac-
count of his previous deployment to Afghanistan in 2012 and his disturbing
experiences there, nor the R.C.M. 706 report that at the time of the offense
Appellant in fact suffered from PTSD and anxiety, among other disorders, for
which he had received mental health counseling and medication. Nor was
Lt Col SG’s testimony facially inconsistent with anything the Defense pre-
sented, apart from Ms. VC’s erroneous estimation of the length of the fifth de-
ployment, as Mr. RC conceded at trial. In other words, Lt Col SG’s testimony
provided limited additional information that served to put Appellant’s fourth
and fifth deployments in the proper context, without deflecting the general
thrust of the defense sentencing case.
    Moreover, we note Appellant was tried by a military judge rather than by
court members. “As the sentencing authority, a military judge is presumed to
know the law and apply it correctly absent clear evidence to the contrary.”
United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (citations omitted).
Accordingly, we are confident the military judge could put Lt Col SG’s rebuttal
testimony into its proper context without succumbing to the dangers of unfair
prejudice.
   Finally, assuming arguendo the military judge erred by permitting Lt Col
SG’s testimony, we find the error had no substantial influence on the sentence.

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                   United States v. Carroll, No. ACM 39530


See Barker, 77 M.J. at 384. After considering the relative strength of the gov-
ernment and defense cases, and especially the quality and materiality of Lt Col
SG’s brief and narrowly-focused testimony in the broader context of Appel-
lant’s offense and the entirety of the presentencing proceedings, we are con-
vinced that any error in admitting Lt Col SG’s testimony had no substantial
influence on the sentence.
B. Ineffective Assistance of Counsel
   1. Additional Background
   On appeal, Appellant has provided sworn declarations addressing various
aspects of his case, including his contention that his trial defense counsel—Mr.
RC and Captain (Capt) MC—provided ineffective assistance of counsel. Appel-
lant asserts, inter alia:
       . . . My fourth deployment was to Kandahar, Afghanistan in May
       2016, but I was forward deployed to an undisclosed location on a
       Top Secret/Sensitive Compartmentalized Information – Special
       Access Program (TS/SCI-SAP) mission for mission partners that
       I am not at liberty to discuss. My fifth deployment in January
       2017 was also to an undisclosed location on a TS/SCI-SAP mis-
       sion for the 30th Reconnaissance Squadron (RS) and mission
       partner I am again not at liberty to discuss. Prior to trial, I in-
       formed my defense counsel that I could not discuss any details
       of the missions as they were classified TS/SCI-SAP and my de-
       fense counsel informed me that it was “too much trouble” to seek
       authorization to discuss the classified information.
       . . . [Lt Col SG’s] testimony was misleading, and although he was
       the current commander of the 30 RS, he was not the Command-
       ing Officer (CO) during either of my deployments and was not
       briefed on operational activities or even the nature of the mis-
       sion. His testimony regarding my duties was inaccurate and mis-
       leading. After my commander testified, I informed my defense
       counsel that I believed that his testimony was misleading, but I
       was not able to elaborate because I could not discuss classified
       information.
    At the Government’s request, this court ordered affidavits from Mr. RC and
Capt MC responsive to Appellant’s allegation of ineffective assistance. Accord-
ing to Mr. RC, Appellant’s “primary concern” was to be released from pretrial
confinement as soon as possible. Mr. RC and Capt MC informed Appellant of
the process to obtain classified material pursuant to Mil. R. Evid. 505; however,
when they advised Appellant that seeking such information might delay his
trial, he specifically told them not to obtain the classified material. Appellant


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                   United States v. Carroll, No. ACM 39530


and his counsel agreed that Appellant would still be able to describe the gen-
eral nature of his combat experience and PTSD. Appellant provided his counsel
a list of witnesses who purportedly could verify that he “saw combat or partic-
ipated in ‘snatch-and-grab’ missions,” but upon investigation “none of those
witnesses corroborated [Appellant’s] version of events.” Mr. RC again broached
the possibility of pursuing classified records, but Appellant was “adamant that
he did not want to stay in [pretrial confinement] any longer and that he did not
think the classified records would assist his defense.” When the Prosecution
advised the Defense it intended to call Lt Col SG in rebuttal, Appellant in-
formed his counsel that his first sergeant who deployed with him would be able
to confirm his combat exposure. However, when Capt MC interviewed the first
sergeant, he did not corroborate Appellant. Mr. RC interviewed Lt Col SG, who
provided information consistent with his subsequent testimony to the effect
that Appellant did not “see combat” during his classified deployments. In-
formed of these developments, Appellant again stated he did not want to seek
a recess or delay to pursue classified records. Appellant acknowledged his final
deployment was to Korea rather than an “undisclosed location.” Appellant
“was very clear that there was nothing in his file that would help, that he had
said everything that he wanted to say, and that there was no reason to obtain
his classified records.” Appellant declined to testify in surrebuttal to clarify his
deployment history, telling his counsel he was “not prepared to call [his] Com-
mander a liar under oath.”
    Capt MC’s declaration was generally consistent with Mr. RC’s. Capt MC
confirmed that Appellant’s priority was to be released from confinement, that
he did not want to pursue classified records, that Appellant believed his un-
sworn statements and unclassified defense exhibits would adequately capture
his deployed experiences, and that witnesses identified by Appellant did not
corroborate Appellant’s version of events. Capt MC added that Appellant’s
statements regarding the number and classified nature of his various deploy-
ments were inconsistent, and that Appellant attributed his PTSD primarily to
events during his unclassified second deployment, in Afghanistan. Both
Mr. RC and Capt MC denied ever telling Appellant it would be “too much trou-
ble” to pursue classified information.
    Appellant provided an additional declaration in rebuttal to trial defense
counsel’s declarations. Appellant acknowledged he told his counsel he did not
believe classified information in his record regarding his deployments would
be helpful. However, Appellant avers he told his counsel that if Appellant were
allowed to speak about his classified deployments, he could provide “a lot of
details” regarding missions that would be helpful to his case. Appellant ex-
plains his counsel advised him the classified information was “not worth pur-
suing” because they believed they had enough information regarding his
PTSD, and they told Appellant pursuing the classified information could result

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                     United States v. Carroll, No. ACM 39530


in his continued pretrial confinement for another 12 months and additional
legal fees. According to Appellant, his counsel’s attitude toward classified in-
formation was “dismissive” and “it did not seem like a real option to be able to
discuss classified information with my attorneys.” Appellant further asserts
that any witnesses who might corroborate the details of his deployments
“would not do so because they are not allowed to confirm details of the classified
information.”
      2. Law
    The Sixth Amendment 6 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). In
assessing the effectiveness of counsel, we apply the standard set forth in Strick-
land v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).
See Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000)). Accordingly, we “will not second-guess the strategic or tacti-
cal decisions made at trial by defense counsel.” United States v. Mazza, 67 M.J.
470, 475 (C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001)). We review allegations of ineffective assistance de novo.
United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (citing Mazza, 67 M.J.
at 474).
    We utilize the following three-part test to determine whether the presump-
tion of competence has been overcome:
         1. Are appellant’s allegations true; if so, “is there a reasonable
         explanation for counsel’s actions”?
         2. If the allegations are true, did defense counsel’s level of advo-
         cacy “fall measurably below the performance . . . [ordinarily ex-
         pected] of fallible lawyers”?
         3. If defense counsel was ineffective, is there “a reasonable prob-
         ability that, absent the errors,” there would have been a differ-
         ent result?
Gooch, 69 M.J. at 362 (alteration in original) (quoting United States v. Polk, 32
M.J. 150, 153 (C.M.A. 1991)). The burden is on the appellant to demonstrate
both deficient performance and prejudice. United States v. Datavs, 71 M.J. 420,
424 (C.A.A.F. 2012) (citation omitted).
      3. Analysis




6   U.S. CONST. amend. VI.


                                         12
                   United States v. Carroll, No. ACM 39530


    Appellant contends his trial defense counsel were ineffective because they
failed to conduct a reasonable investigation into mitigating evidence, specifi-
cally Appellant’s deployments. Appellant avers that, at a minimum, it was crit-
ical for trial defense counsel to be able to at least talk to Appellant about his
deployments. Appellant points to Mr. RC’s assertion to the military judge that
the Defense was “hamstrung” in its ability to respond to Lt Col SG’s testimony,
and the limited nature of Mr. RC’s cross-examination of Lt Col SG. Appellant
posits that if the Defense had pursued access to classified information under
Mil. R. Evid. 505, either trial defense counsel would have obtained useful in-
formation or, if the Government prevented disclosure, the Defense might have
secured remedies under the rule such as, for example, foreclosing Lt Col SG’s
rebuttal testimony.
    As an initial matter, we have considered whether a post-trial evidentiary
hearing is required to resolve any factual disputes between Appellant’s decla-
rations and those of Mr. RC and Capt MC. See United States v. Ginn, 47 M.J.
236, 248 (C.A.A.F. 1997). We find such a hearing is not required in this case.
To a considerable extent, the declarations are not inconsistent. Appellant con-
cedes he did tell his counsel he did not think classified records regarding his
deployments would be helpful. He does not deny that witnesses contacted by
his counsel did not corroborate his version of events. Appellant implies he did
prioritize release from confinement over pursuit of access to classified infor-
mation that would delay proceedings and prolong his confinement. To the ex-
tent the declarations are inconsistent, resolving any factual disputes in Appel-
lant’s favor would not result in relief. See id.
    Turning to the three-part test articulated in Gooch, 69 M.J. at 362, we find
there are reasonable explanations for trial defense counsel’s actions. Appellant
wanted to be released from confinement. Trial defense counsel negotiated a
PTA that would result in Appellant’s conviction of only a single, lesser offense
and would result in his immediate release from confinement upon conclusion
of his trial. Pursuing disclosure of classified information could reasonably be
expected to delay Appellant’s trial, resulting in continued confinement that
was unnecessary in light of the available PTA. Furthermore, pursuing disclo-
sure might render the PTA less appealing to the convening authority, threat-
ening its favorable terms. In light of the available unclassified information re-
garding Appellant’s deployments, PTSD, and other mental health issues, any
classified details of his fourth and fifth deployments were of marginal apparent
materiality. Furthermore, the inability of witnesses identified by Appellant to
corroborate his claims regarding his deployments might reasonably have given
trial defense counsel pause as to the extent or value of any classified infor-
mation. Under these circumstances, we find trial defense counsel’s initial de-
cision not to pursue disclosure of classified information to be reasonable.



                                       13
                   United States v. Carroll, No. ACM 39530


    We further find trial defense counsel’s decision not to pursue disclosure of
classified information in response to Lt Col SG’s rebuttal testimony to be rea-
sonable. As described above, Lt Col SG’s testimony was of limited scope and
materiality in the broader context of the entire case. Appellant contends he
told his counsel that, if permitted to describe classified aspects of his deploy-
ment, he could have provided “a lot” of helpful details. However, even without
going into classified details, Appellant could have testified in surrebuttal at an
unclassified level. Appellant might have followed up on Lt Col SG’s acknowl-
edgment on cross-examination that he had not been Appellant’s commander
during Appellant’s fourth and fifth deployments, stating that Lt Col SG lacked
personal knowledge and his testimony was inaccurate or misleading, if such
was the case. However, Appellant does not deny Mr. RC’s assertion that Ap-
pellant made an informed decision not to testify in surrebuttal. Nor does Ap-
pellant now assert he in fact desired a delay to pursue classified information
in response to Lt Col SG’s testimony. Furthermore, with respect to Mr. RC’s
use of the term “hamstrung” when objecting to Lt Col SG’s testimony, he ex-
plains in his declaration:
       I used the word “hamstrung” because [Appellant] already in-
       formed me that he did not want to risk losing the benefit of his
       PTA by requesting the classified documents, . . . he was not pre-
       pared to rebut his Commander’s testimony, none of the wit-
       nesses corroborated his story, and the defense had no way to re-
       habilitate [Appellant] despite our best efforts.
In other words, to the extent the Defense’s ability to counter Lt Col SG’s testi-
mony was impaired, this condition was the result of reasonable choices by trial
defense counsel driven by Appellant’s own decisions and priorities, rather than
any unfairness wrought by the Government or the military judge.
    For similar reasons, with regard to the second element of the test, we find
Mr. RC and Capt MC did not perform “measurably below” the standard to be
expected of trial defense counsel. Appellant’s attorneys made reasonable stra-
tegic decisions in pursuit of Appellant’s primary objectives, and secured his
immediate post-trial release by negotiating a favorable PTA. Similarly, their
tactical response to Lt Col SG’s testimony was not deficient in light of the lack
of corroboration for Appellant, the limited materiality of the rebuttal, and Ap-
pellant’s own decisions and priorities.
    Finally, we do not perceive any reasonable probability of a more favorable
result had trial defense counsel pursued disclosure of classified information
from Appellant’s fourth and fifth deployments. Again, the limited scope and
materiality of Lt Col SG’s testimony did not alter the thrust of the defense
sentencing case, which emphasized his PTSD and other disorders tied primar-
ily to his first deployment to Afghanistan, as corroborated by the R.C.M. 706

                                       14
                   United States v. Carroll, No. ACM 39530


report and Appellant’s counseling and treatment. Moreover, neither Lt Col
SG’s testimony nor any undisclosed classified information had any direct link
to the assault and battery against AR for which the military judge sentenced
Appellant. Furthermore, by the time of sentencing, Appellant had already
served more time in pretrial confinement than the maximum imposable term
of confinement, and we are not persuaded Lt Col SG’s testimony or the absence
of classified details regarding Appellant’s final deployments were substantial
factors in the imposition of the bad-conduct discharge, reduction in grade, or
reprimand.
C. Denial of Right to Appellate Counsel
   1. Additional Background
    On 10 December 2018, citing United States v. Campbell, 57 M.J. 134, 138
(C.A.A.F. 2002), Appellant submitted to this court a motion to compel post-trial
discovery, seeking to have this court order the Government to produce “docu-
ments and information” related to Appellant’s classified fourth and fifth de-
ployments. Specifically, Appellant sought: (1) the location, unit, and specific
duties involved with his fifth deployment in January 2017; (2) any non-disclo-
sure agreements pertaining to both deployments; (3) disclosure of relevant Spe-
cial Access Programs and the identity and location of classified information
release authorities; and (4) information relating to Appellant’s duties, tasks,
accomplishments, and direct or indirect exposure to combat during these de-
ployments. On 26 December 2018, the Government opposed the motion on var-
ious grounds, including that Appellant had failed to demonstrate a reasonable
probability that the result of the proceeding below would have been different
had the requested information been disclosed. See id. On 27 December 2018,
this court denied Appellant’s motion to compel post-trial discovery because Ap-
pellant did not provide an adequate showing that the requested information
was relevant to a claim of error.
   2. Law
   “When faced with a post-trial dispute over discovery relevant to an appeal,
an appellate court . . . must determine whether the appellant met his threshold
burden of demonstrating that some measure of appellate inquiry is war-
ranted.” Campbell, 57 M.J. at 138. The court should consider, inter alia:
        (1) whether the defense has made a colorable showing that the
       evidence or information exists;
        (2) whether or not the evidence or information sought was pre-
       viously discoverable with due diligence;
        (3) whether the putative information is relevant to appellant’s
       asserted claim or defense; and


                                      15
                    United States v. Carroll, No. ACM 39530


          (4) whether there is a reasonable probability that the result of
         the proceeding would have been different if the putative infor-
         mation had been disclosed.
Id.
    “An accused has the right to effective representation by counsel through
the entire period of review following trial, including representation before the
Court of Criminal Appeals . . . .” Diaz v. The Judge Advocate General of the
Navy, 59 M.J. 34, 37 (C.A.A.F. 2003) (citation omitted). However, “[t]he right
to communicate with counsel . . . is not absolute.” United States v. Moussaoui,
591 F.3d 263, 289 (4th Cir. 2010). “Not all restrictions on communication be-
tween a defendant and his counsel are constitutionally prohibited, however. In
certain contexts there can be an ‘important need to protect a countervailing
interest,’ which may justify a restriction on the defendant’s ability to consult
with his attorney . . . .” United States v. Triumph Capital Group, Inc., 487 F.3d
124, 129 (2d Cir. 2007) (quoting Morgan v. Bennett, 204 F.3d 360, 367 (2d Cir.
2000)).
     Structural error exists when an appellate court faces difficulty in assessing
the effect of the error or the error is so fundamental that harmlessness is irrel-
evant. United States v. Wiechmann, 67 M.J. 456, 463 (C.A.A.F. 2009) (citing
United States v. Brooks, 66 M.J. 221, 224 (C.A.A.F. 2008)). “‘Structural errors
involve errors in the trial mechanism’ so serious that ‘a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or innocence.’”
Brooks, 66 M.J. at 224 (quoting Arizona v. Fulminante, 499 U.S. 279, 309–10
(1991)). Structural errors “require no proof of prejudice for reversal.” Id. “Not
all impingements on attorney-client communications constitute” structural er-
ror, and there is a strong presumption that errors are not structural. Id. at
223–24 (citations omitted).
   Constitutional errors not amounting to structural errors are tested for
harmlessness beyond a reasonable doubt. United States v. Condon, 77 M.J.
244, 246 (C.A.A.F. 2018) (citing United States v. Jerkins, 77 M.J. 225, 228
(C.A.A.F. 2018)). An error is harmless beyond a reasonable doubt if it did not
contribute to the result of the court-martial. See id. (citation omitted).
      3. Analysis
    Appellant contends the Government has interfered with his rights to coun-
sel by denying his post-trial discovery request for information necessary to dis-
cuss classified information with his appellate counsel. Appellant avers this in-
formation is relevant to his claim of ineffective assistance of counsel, discussed
above, because in order to obtain relief he must demonstrate he was prejudiced
by trial defense counsel’s failure to pursue disclosure of classified information



                                        16
                   United States v. Carroll, No. ACM 39530


regarding his final deployments. Appellant argues this denial of effective as-
sistance amounted to structural error in his case due to the difficulty in as-
sessing the resulting prejudice. See Brooks, 66 M.J. at 224 (citations omitted).
Assuming arguendo there was no structural error, Appellant contends there
was constitutional error that was not harmless beyond a reasonable doubt.
    The initial question is whether Appellant has “met his threshold burden of
demonstrating that some measure of appellate inquiry” into the classified in-
formation is warranted. Campbell, 57 M.J. at 136. Having considered the fac-
tors the United States Court of Appeals for the Armed Forces (CAAF) articu-
lated in Campbell, among other considerations, we find Appellant has failed to
do so. In particular, we do not find a “reasonable probability” the result of any
proceeding would be different if the putative information had been disclosed.
Id.
    The nondisclosure of any classified information relating to Appellant’s de-
ployments has not affected the outcome of our analysis of Appellant’s claim of
ineffective assistance of counsel. As detailed above, we find trial defense coun-
sel made reasonable decisions, based on Appellant’s desires and the other in-
formation available to them, not to pursue classified information either before
trial or in response to Lt Col SG’s rebuttal testimony. Therefore, Appellant’s
claim of ineffective assistance of counsel would fail irrespective of any classi-
fied details of his deployments that he was prohibited from sharing with his
counsel at trial or on appeal. Similarly, as described above, such classified de-
tails were of such limited materiality in the overall context of Appellant’s trial
that we remain unpersuaded that their disclosure at trial or on appeal would
have created a reasonable probability of a more favorable result, either at the
court-martial or before this court.
    Because Appellant has not demonstrated appellate discovery is appropriate
under Campbell, we find no error, structural or otherwise. Assuming arguendo
the Government did interfere with Appellant’s right to counsel, we would not
find structural error in this case. Appellant contends he is unable to explain
the extent of the classified mitigating evidence, and therefore this court cannot
assess the effect of the error. See Brooks, 66 M.J. at 224 (citations omitted). We
are not persuaded. For the reasons stated above, we found no reasonable prob-
ability disclosure of these details would have affected either the sentence im-
posed by the military judge or our resolution of Appellant’s ineffective assis-
tance of counsel claim. For similar reasons, we also find that any non-struc-
tural, constitutional error was harmless beyond a reasonable doubt.
D. Incomplete Record of Trial
   1. Additional Background




                                       17
                    United States v. Carroll, No. ACM 39530


    Before trial, the Defense submitted a motion seeking to introduce evidence
of statements AR made shortly after the offense that were covered by Mil. R.
Evid. 513, the psychotherapist-patient privilege. 7 The Defense contended AR
had waived the privilege by disclosure to a third party, and alternatively that
disclosure was constitutionally required pursuant to Appellant’s Sixth Amend-
ment right to confront witnesses. The Government opposed the motion. On 7
June 2018, before Appellant entered his pleas, the military judge held a closed
hearing in accordance with Mil. R. Evid. 513(e)(2) at which she received evi-
dence and heard argument from counsel. Shortly after the closed hearing, the
court-martial recessed until 12 June 2018.
    At the beginning of the next day of the trial on 12 June 2018, in a closed
session, the military judge announced her ruling on the Defense’s Mil. R. Evid.
513 motion. The military judge indicated she had emailed a “Notice of Ruling”
to the parties to inform them she was denying the motion. In her oral ruling,
she indicated she considered the cases cited by the parties in their pleadings,
as well as several United States Supreme Court decisions that she identified.
The military judge stated she “found the defense failed to meet its burden as
required by [Mil. R. Evid.] 513(e) in order for the court to do in [sic] in camera
review, particularly a specific factual basis demonstrating a reasonable likeli-
hood that the records or communications would yield evidence admissible un-
der a privileged exception.” She stated she found “persuasive” this court’s un-
published opinion in United States v. Morales, No. ACM 39018, 2017 CCA
LEXIS 612 (A.F. Ct. Crim. App. 13 Sep. 2017) (unpub. op.) (holding appellant
failed to present specific factual basis demonstrating a reasonable likelihood
records would yield constitutionally-required information). The military judge
concluded that she found production of the privileged information was “not
otherwise required under the Constitution,” specifically that the Defense had
“failed to show the requested records had exculpatory value or contain sub-
stantive evidence directly related to a charged offense or contain evidence ca-
pable of impeaching the government’s case.”
    The military judge then stated she intended to “provide [her] Notice of Rul-
ing via PDF version for the court reporter to be put in the place of Appellate
Exhibit XI, which is sealed, as previously stated in another session.” She then
“reserve[d] the right to supplement [her] ruling as necessary prior to authen-
tication of the record.” However, Appellate Exhibit XI in the record of trial is

7 The trial transcript, appellate exhibits, and briefs related to the Mil. R. Evid. 513
motion were sealed pursuant to R.C.M. 1103A. These portions of the record and briefs
remain sealed, and any discussion of sealed material in this opinion is limited to that
which is necessary for our analysis. See R.C.M. 1103A(b)(4).




                                          18
                    United States v. Carroll, No. ACM 39530


not the military judge’s “Notice of Ruling” on the Mil. R. Evid. 513 motion.
Instead, it appears to be an unsigned draft ruling on the Defense’s unrelated
motion to dismiss for violation of Appellant’s right to speedy trial under the
Sixth Amendment and Article 10, UCMJ. 8 The “Notice of Ruling” on the Mil.
R. Evid. 513 motion is not included in the record of trial.
    2. Law
   Whether a record of trial is complete is a question of law we review de novo.
United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014) (citation omitted).
“Article 54(c)(1), UCMJ, 10 U.S.C. § 854(c)(1), requires a ‘complete’ record of
the proceedings and testimony to be prepared for any general court-martial
resulting in a punitive discharge.” United States v. Lovely, 73 M.J. 658, 676
(A.F. Ct. Crim. App. 2014). A “complete” record must include any appellate
exhibits, as well as exhibits received in evidence. Id. (citing R.C.M.
1103(b)(2)(D)(v).
     “[T]he threshold question is ‘whether the omitted material was substan-
tial,’ either qualitatively or quantitatively.” Davenport, 73 M.J. at 377 (quoting
United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982)) (additional citation omit-
ted). Each case is analyzed individually to decide whether an omission is sub-
stantial. United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999). “A sub-
stantial omission renders a record of trial incomplete and raises a presumption
of prejudice that the Government must rebut.” United States v. Henry, 53 M.J.
108, 111 (C.A.A.F. 2000) (citing United States v. McCullah, 11 M.J. 234, 237
(C.M.A. 1981)) (additional citations omitted). “Insubstantial omissions from a
record of trial do not raise a presumption of prejudice or affect that record’s
characterization as a complete one.” Id. A record may be “substantially com-
plete” even if an exhibit is missing. See, e.g., Lovely, 73 M.J. at 676 (missing
videos played by defense in sentencing proceedings did not render record in-
complete).
    3. Analysis
    Appellant contends the omission of the “Notice of Ruling” on the Mil. R.
Evid. 513 motion was substantial because it “adversely affected” Appellant’s
rights at trial and played a role in his decision to plead guilty, because there is
no adequate substitute for the missing exhibit in the record, and because its
absence prevents counsel and this court from conducting a “complete review of
the record.” The Government concedes the “written ruling” is missing from the
record, and has not attempted to supplement the record or otherwise prove the



8The military judge’s final, signed ruling on the Defense’s speedy trial motion appears
in the record as Appellate Exhibit XV.


                                          19
                   United States v. Carroll, No. ACM 39530


contents of the missing exhibit. However, the Government contends the omis-
sion is not substantial because the military judge’s oral ruling contained the
“critical elements” of her decision, and because Appellant waived appellate re-
view of the Mil. R. Evid. 513 ruling.
    Assuming arguendo that the missing exhibit was in fact a written ruling,
we find its omission was not substantial for three reasons. First, the military
judge’s oral ruling conveyed her essential rationale for denying the motion—
that the Defense had failed to make the required specific factual showing nec-
essary to warrant in camera review. More specifically, she stated the Defense
had not demonstrated a reasonable likelihood the requested communications
contained information admissible under an exception to Mil. R. Evid. 513, or
that, under a constitutionally-required standard, that the communications
were exculpatory, contained substantive information directly related to an of-
fense, or had impeachment value. Second, the pleadings and arguments of the
parties and the evidence upon which the military judge based her ruling are
all available in the record for counsel and this court to review. Third, Appellant
waived appellate review of the military judge’s Mil. R. Evid. 513 ruling by vir-
tue of his unconditional guilty plea in accordance with the PTA. See United
States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018) (citation omitted).
    Finally, further assuming arguendo that the omission was either qualita-
tively or quantitatively “substantial,” for similar reasons we find any presump-
tion of prejudice to be rebutted in this case. See Henry, 53 M.J. at 111. In short,
the record contains an adequate basis to review the military judge’s ruling, a
ruling that in any event Appellant is not entitled to challenge on appeal.
E. Sentence Appropriateness
   1. Additional Background
    Appellant was held in military pretrial confinement for 197 days. Before
trial, the Defense filed a motion seeking three-for-one credit against any sen-
tence to confinement for each day Appellant spent in pretrial confinement, al-
leging unduly harsh conditions in violation of Article 13, UCMJ, 10 U.S.C. §
813. The Government opposed the motion. However, after Appellant pleaded
guilty, trial defense counsel informed the military judge that pursuant to the
PTA the Defense was waiving its Article 13, UCMJ, motion. Appellant
acknowledged to the military judge that he understood he was waiving any
relief for the alleged violations of Article 13, UCMJ.
    On appeal, Appellant’s declaration to this court restates numerous com-
plaints regarding the conditions of his pretrial confinement. Appellant asserts,
inter alia, when he initially entered pretrial confinement he was denied his
prescribed medication for PTSD, which resulted in his temporary hospitaliza-
tion. Appellant asserts these medications were never fully restored and he was


                                        20
                   United States v. Carroll, No. ACM 39530


required to take different medications, which worsened his PTSD symptoms
such as nightmares, paranoia, suicidal ideation, and extreme hypertension. In
addition, Appellant asserts that for some period of his confinement he was on
suicide watch and required to wear only a Velcro vest and to sleep on the floor.
He avers that female confinement staff observed his bare buttocks and genitals
through a video monitor and in person. Appellant states the heating and air
conditioning in the facility was inadequate, resulting in temperatures as low
as 55 degrees and as high as 85 degrees Fahrenheit. Moreover, Appellant
states he was held in isolation and afforded inadequate recreation time, and in
particular denied access to strength training equipment he needed due to knee
and shoulder injuries. Appellant asserts these conditions led him to file ap-
proximately 20 grievances and to file a complaint with the command inspector
general (IG). Moreover, Appellant asserts he suffered reprisals from the con-
finement staff for filing grievances and for announcing his intention to seek
assistance from the IG.
   2. Law
    We review issues of sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (alteration in original) (quoting United States v.
Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)). We have
broad discretion to determine whether a sentence “‘should be approved,’ even
if the sentence is ‘correct’ as a matter of law.” United States v. Kelly, 77 M.J.
404, 406 (C.A.A.F. 2018) (quoting United States v. Nerad, 69 M.J. 138, 142
(C.A.A.F. 2010)) (additional citation omitted). However, our discretion is not
“unfettered,” and we have no authority to grant clemency or mercy. Nerad, 69
M.J. at 146 (C.A.A.F. 2010).
    The CAAF has recognized no constitutional, statutory, or regulatory right
for an accused to receive credit against his sentence for lawful pretrial confine-
ment where no confinement is adjudged. See United States v. Smith, 56 M.J.
290, 292–93 (C.A.A.F. 2002). Credit for lawful pretrial confinement “can only
be applied against confinement.” United States v. Oliver, 56 M.J. 779, 783 (A.F.
Ct. Crim. App. 2002) (citing Smith, 56 M.J. at 290); cf. United States v. Allen,
17 M.J. 126, 128 (C.M.A. 1984) (holding pretrial confinement entitled Appel-
lant to day-for-day credit against sentence to confinement).
   3. Analysis

                                       21
                    United States v. Carroll, No. ACM 39530


    Appellant acknowledges that by his unconditional guilty plea and in ac-
cordance with the PTA he affirmatively waived his opportunity to seek relief
for illegal pretrial punishment in violation of Article 13, UCMJ. See Hardy, 77
M.J. at 442. He further acknowledges he is not entitled to receive credit against
his adjudged sentence for time spent in pretrial confinement beyond his ad-
judged term of confinement. See Oliver, 56 M.J. at 783. However, he asserts
his unduly harsh pretrial confinement conditions, combined with the extenu-
ating circumstances of his PTSD and other disorders and his formerly out-
standing service, render his adjudged sentence inappropriately severe. There-
fore, he asks this court to exercise its authority pursuant to Article 66(c),
UCMJ, 10 U.S.C. § 866(c), to disapprove the bad-conduct discharge.
    In response, the Government contends Appellant’s claims regarding his
confinement conditions are “unsupported exaggerations.” The Government re-
fers to material it provided in opposition to Appellant’s original Article 13,
UCMJ, motion to provide “context” to his pretrial confinement claims. For ex-
ample, the Government cites records indicating that Appellant’s medication
needs were assessed shortly after he entered confinement and he continued to
receive medication there; that precautions regarding Appellant’s expressed su-
icidal ideation were warranted; that procedures were in place to avoid un-
clothed inmates being exposed to confinement staff of the opposite sex; and
that Appellant was provided some opportunity for recreation. The Government
concedes that prior to 2017, Appellant’s record of service was “notable” and his
duty performance was “excellent;” however, since 2017 Appellant received two
letters of reprimand as well as nonjudicial punishment. The Government also
concedes Appellant’s PTSD is a “noteworthy” mitigating circumstance. Never-
theless, the Government contends Appellant is entitled to no additional credit
for the duration or conditions of his pretrial confinement, and that his sentence
is appropriate.
   Both parties compare Appellant’s case to United States v. Cooks, No. ACM
38426, 2014 CCA LEXIS 931 (A.F. Ct. Crim. App. 13 Jan. 2014) (unpub. op.).
In Cooks, “the appellant received a total of 159 days of pretrial confinement
credit when his adjudged and approved sentence [to confinement] was only 90
days.” Id. at *20–21. 9 Citing Smith and Oliver, this court found the appellant
was not entitled to credit for lawful pretrial confinement beyond his adjudged
term of confinement. Id. at *21–22. The court concluded, “No credit against
other punishments for lawful pretrial confinement is necessary or appropriate


9 This term included 13 days of illegal pretrial confinement credit awarded by the mil-
itary judge for commingling the appellant with a post-trial inmate, which the conven-
ing authority correctly applied against the adjudged term of confinement at action.
Cooks, unpub. op. at *20–22.


                                          22
                    United States v. Carroll, No. ACM 39530


in this situation, and we see nothing about the appellant’s situation that ren-
ders his adjudged and approved sentence inappropriate.” Id. at *22. Appellant
implicitly suggests his situation is distinguished from Cooks by his conditions
of confinement, mental health problems, and service record, and warrants a
different result.
    We do not find Appellant’s sentence to a bad-conduct discharge is inappro-
priately severe. Appellant committed a significant offense against AR, who de-
scribed for the court both the acute and lasting distress Appellant’s actions
inflicted on her. The military judge was well-informed of Appellant’s mental
health problems and formerly outstanding service record when she decided Ap-
pellant’s sentence. We are not persuaded Appellant’s assertedly harsh pretrial
confinement conditions, relief for which he specifically waived, render his bad-
conduct discharge or any other aspect of his adjudged sentence inappropriate.
F. Speedy Trial
     1. Additional Background
    Appellant entered pretrial confinement on 27 November 2017. 10 On 5 De-
cember 2017, a neutral officer conducted a hearing and determined pursuant
to R.C.M. 305(i)(2) that Appellant’s pretrial confinement should continue. Be-
tween 5 December 2017 and 8 January 2018, judge advocates at the Nellis AFB
legal office repeatedly communicated with the Clark County District Attor-
ney’s Office, providing information regarding Air Force investigations of Ap-
pellant and requesting jurisdiction over Appellant’s 25 November 2017 assault
against AR. On 8 January 2018, the District Attorney’s Office released juris-
diction of the matter to the Air Force in writing.
    On 9 January 2018, trial counsel notified Appellant’s counsel of the juris-
diction release and requested the Defense’s availability for a preliminary hear-
ing pursuant to Article 32, UCMJ, 10 U.S.C. § 832. The Defense responded that
its preferred date for the hearing was 21 February 2018 based on the schedule
of Appellant’s civilian counsel, Mr. RC.
    On 5 February 2018, Appellant’s squadron commander preferred five
charges against him, one specification each of aggravated assault and com-
municating a threat to AR, and one specification each of abusive sexual con-
tact, indecent exposure, and wrongful possession of a controlled substance
based on investigation of an incident in March 2017 that was unrelated to AR.



10The following factual summary is drawn from the military judge’s findings of fact in
her ruling on the Defense’s speedy trial motion, which Appellant has not substantially
challenged and which we find not to be clearly erroneous. See United States v. Mizgala,
61 M.J. 122, 127 (C.A.A.F. 2005) (citations omitted).


                                          23
                   United States v. Carroll, No. ACM 39530


    The preliminary hearing took place on 21 February 2018, the Defense’s pre-
ferred date. The preliminary hearing officer (PHO) submitted his report on 27
February 2018. He concluded probable cause existed with respect to each
charge and specification except communicating a threat, and recommended
trial by general court-martial. On 6 March 2018, the special court-martial con-
vening authority forwarded the charges to the general court-martial convening
authority with a recommendation to refer all the charges and specifications to
trial by general court-martial. The same day, 6 March 2018, trial counsel noti-
fied the Defense that the general court-martial convening authority would be
unavailable to refer charges until 15 March 2018, and requested trial defense
counsel’s availability for arraignment, motions, and trial. Trial defense counsel
indicated their first availability for motions was 6 June 2018 and for trial was
11 June 2018.
    On 14 March 2018, the general court-martial convening authority referred
all five charges and specifications to trial by general court-martial. Appellant
was arraigned on 21 March 2018, 115 days after he entered pretrial confine-
ment. On 28 March 2018, the Defense requested an inquiry into Appellant’s
mental capacity and mental responsibility pursuant to R.C.M. 706. The mili-
tary judge granted the unopposed motion on 30 March 2018. The inquiry con-
cluded on 2 May 2018.
    On 23 May 2018, the Defense submitted a motion to dismiss the charges
and specifications for denial of Appellant’s right to speedy trial under the Sixth
Amendment and Article 10, UCMJ. The Government submitted its opposition
on 1 June 2018. On 5 June 2018, the convening authority directed trial counsel
to withdraw and dismiss with prejudice the charges and specifications alleging
abusive sexual contact, indecent exposure, and possession of a controlled sub-
stance. The military judge held a motions hearing on 7 June 2018.
    On 12 June 2018, the military judge entered her oral and written rulings
on the Defense’s speedy trial motion. In light of Appellant’s agreement to plead
guilty unconditionally pursuant to a PTA, which would waive the Sixth
Amendment speedy trial claim, the military judge analyzed the motion only
under Article 10, UCMJ. After reciting her findings of fact and summarizing
the applicable law, she assessed the delay in bringing Appellant to trial in light
of the four factors articulated in Barker v. Wingo, 407 U.S. 514, 530 (1072). See
United States v. Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005). She found, inter
alia, that the Government acted with “reasonable diligence,” that there was no
evidence Appellant was subjected to unduly harsh or oppressive conditions of
confinement, and that Appellant’s “meaningful participation” in preparing his
defense had not been impaired. Considering all the circumstances, the military
judge found no violation of Appellant’s Article 10, UCMJ, right to speedy trial.



                                       24
                    United States v. Carroll, No. ACM 39530


After the military judge entered her ruling, in accordance with the PTA, Ap-
pellant pleaded guilty to assault consummated by a battery and was sentenced,
as described above.
   2. Law
    Whether an appellant was denied his right to speedy trial under Article 10,
UCMJ, is a question of law we review de novo. United States v. Cooley, 75 M.J.
247, 259 (C.A.A.F. 2016) (quoting United States v. Cossio, 64 M.J. 254, 256
(C.A.A.F. 2007)) (additional citation omitted). However, “a military judge’s
findings of fact . . . will be reversed only if they are clearly erroneous.” Mizgala,
61 M.J. at 127 (citations omitted). A litigated speedy trial motion under Article
10, UCMJ, is not waived by a subsequent unconditional guilty plea. Id.
    Article 10, UCMJ, provides in pertinent part: “When any person subject to
this chapter is placed in arrest or confinement prior to trial, immediate steps
shall be taken to inform him of the specific wrong of which he is accused and
to try him or to dismiss the charges and release him.” 10 U.S.C. § 810.
“[A]lthough Sixth Amendment speedy trial standards cannot dictate whether
there has been an Article 10 violation, the factors from Barker v. Wingo are an
apt structure for examining the facts and circumstances surrounding an al-
leged Article 10 violation.” Mizgala, 61 M.J. at 127 (citations omitted). Accord-
ingly, “our framework to determine whether the Government proceeded with
reasonable diligence includes balancing the following four factors: (1) the
length of the delay; (2) the reasons for the delay; (3) whether the appellant
made a demand for a speedy trial; and (4) prejudice to the appellant.” Id. at
129 (citing Barker, 407 U.S. at 530) (additional citation omitted). However,
these factors are not “talismanic” and “must be considered together with such
other circumstances as may be relevant.” United States v. Wilson, 72 M.J. 347,
351 (C.A.A.F. 2013) (quoting Barker, 407 U.S. at 533).
    “The standard of diligence under which we review claims of a denial of
speedy trial under Article 10 ‘is not constant motion, but reasonable diligence
in bringing the charges to trial.’” Mizgala, 61 M.J. at 127 (quoting United
States v. Tibbs, 35 C.M.R. 322, 325 (C.M.A. 1965)) (additional citations omit-
ted). “Short periods of inactivity are not fatal to an otherwise active prosecu-
tion.” Id. (quoting Tibbs, 35 C.M.R. at 325). We evaluate “the proceeding as a
whole and not mere speed.” Id. at 129 (quoting United States v. Mason, 45
C.M.R. 163, 167 (C.M.A. 1972)).
   3. Analysis
    On appeal, Appellant personally asserts a violation of his right to speedy
trial under Article 10, UCMJ. He notes he was in pretrial confinement for 197
days total, and held for 71 days before charges were preferred. Appellant ex-
plains that throughout this time he suffered from fear and anxiety regarding


                                         25
                   United States v. Carroll, No. ACM 39530


his case, and from harsh conditions of confinement that exacerbated his PTSD
symptoms. Appellant alleges that trial counsel “did not attempt to contact A.R.,
the complaining witness, until 12 February 2018, after [he] spent 78 days in
pretrial confinement,” which demonstrates “there was no attempt to move for-
ward with [his] case.”
    We do not find Appellant’s right to speedy trial under Article 10, UCMJ,
was violated. We recognize the Barker factors “are an apt structure for exam-
ining the facts and circumstances surrounding an alleged Article 10 violation.”
Mizgala, 61 M.J. at 127. We also recognize that 197 days is a significant period
for an accused to await trial in confinement, and sufficient under the circum-
stances of this case to warrant further inquiry into the reasonableness of the
delay. We further acknowledge the Defense requested speedy trial on five oc-
casions between 6 December 2017 and 18 March 2018, although two of those
demands were made during periods of Defense-requested delay, diminishing
their force. Additionally, we recognize Appellant’s pretrial confinement sub-
stantially exceeded the term of confinement he was eventually adjudged.
    Nevertheless, the Barker factors are not “talismanic,” individually or col-
lectively, and must be considered together with all relevant circumstances in
the case. Wilson, 72 M.J. at 351 (quoting Barker, 407 U.S. at 533). The ultimate
question is whether, considering the “proceeding as a whole,” the Government
exercised “reasonable diligence” in bringing Appellant to trial. See Mizgala, 61
M.J. at 127–29. We conclude the Government did so in light of the reasons for
the delay, which we find to be of primary significance in this case.
    The delay from 27 November 2017, when Appellant entered pretrial con-
finement, until 8 January 2018 was primarily due to actively pursuing release
of jurisdiction of the 25 November 2017 incident by the Clark County District
Attorney’s Office. We find this was a more than reasonable consideration
where the offense occurred off-base and was responded to and investigated by
civilian authorities. See Air Force Instruction (AFI) 51-201, Administration of
Military Justice, ¶ 2.6.1 (6 Jun. 2013, as amended by AFGM 2016-01, 3 Aug.
2016) (“When a member is subject to both UCMJ and state or foreign jurisdic-
tion for substantially the same act or omission, the determination of which
sovereign shall exercise jurisdiction should be made through consultation or
prior agreement between appropriate Air Force and civilian authorities. RCM
201(d).”).
    Upon receiving the release of jurisdiction, trial counsel promptly coordi-
nated with the Defense to schedule the preliminary hearing. This hearing was
scheduled for 21 February 2018, the Defense’s “preferred date.” The delay be-
tween 9 January 2018 and 21 February 2018 was thus primarily attributable
to the Defense.



                                      26
                    United States v. Carroll, No. ACM 39530


    There was some relatively short delay between the submission of the PHO’s
report on 27 February 2018 and referral of the charges and specifications to
trial on 14 March 2018. This delay was largely attributable to the assessment
of the PHO’s recommendations, to coordination between the special and gen-
eral court-martial convening authorities, and to the general court-martial con-
vening authority’s temporary unavailability. We find these were modest and
reasonable delays in an otherwise active prosecution. See Mizgala, 61 M.J. at
127 (citation omitted).
    On 6 March 2018, before referral, trial counsel coordinated dates for ar-
raignment, motions, and trial with the Defense. Once again, proceedings were
scheduled on or about the dates requested by the Defense. The intervening
R.C.M. 706 inquiry—also requested by the Defense—occurred during this pe-
riod of Defense-requested delay and did not postpone Appellant’s trial. In
short, under the circumstances of this case, we find the reasons for delay weigh
heavily and convincingly in favor of the Government.
    Finally, we agree with the military judge that the record discloses no ma-
terial prejudice to Appellant’s ability to participate in the preparation of his
defense, the “most serious” form of prejudice that pretrial confinement can po-
tentially incur. Id. at 129 (quoting Barker, 407 U.S. at 532).
    Viewing this case as a whole, we find the Government exercised reasonable
diligence in bringing Appellant to trial, and did not violate Article 10, UCMJ.

                                 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. 11


                  FOR THE COURT



                  CAROL K. JOYCE
                  Clerk of the Court




11We note the recitation of Appellant’s plea to Charge IV in the Court-Martial Order
(CMO) erroneously includes the word “batter” in place of “battery.” We direct the prom-
ulgation of a corrected CMO.


                                          27
