      This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
              Rodney B. BOYCE, Airman
             United States Air Force, Appellant
                         No. 16-0546
                     Crim. App. No. 38673
       Argued December 7, 2016—Decided May 22, 2017
            Military Judge: Christopher F. Leavey
   For Appellant: James S. Trieschmann Jr., Esq. (argued);
   Captain Annie W. Morgan (on brief); Major Michael A.
   Schrama.
   For Appellee: Major Thomas J. Alford (argued); Colonel
   Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN and Judge SPARKS
   joined. Judge STUCKY filed a separate dissenting opin-
   ion. Judge RYAN also filed a separate dissenting opin-
   ion.
                     _______________

   Judge OHLSON delivered the opinion of the Court.
    Contrary to Appellant’s pleas, a military panel with en-
listed representation sitting as a general court-martial con-
victed Appellant of one specification of rape on divers occa-
sions and two specifications of assault consummated by a
battery in violation of Articles 120 and 128, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 928 (2012). The
panel acquitted Appellant of one specification of rape and
two specifications of assault.
    The panel sentenced Appellant to a reduction in grade to
E-1, forfeiture of all pay and allowances, and confinement
for four years. The military judge ruled that the convening
authority could not approve the reduction in grade. Pursu-
ant to that ruling, the convening authority approved only so
much of the adjudged sentence as extended to the forfeiture
and confinement. The United States Air Force Court of
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

Criminal Appeals affirmed the findings and granted a six
day credit1 against the sentence in Appellant’s case.
   We granted review of the following issue:

   The Chief of Staff of the Air Force advised the conven-
   ing authority that, unless he retired, the Secretary of
   the Air Force would fire him. Was the convening au-
   thority’s subsequent referral of charges unlawfully in-
   fluenced by the threat to his position and career?
United States v. Boyce, 75 M.J. 402, 402–03 (C.A.A.F. 2016).

    Following our review of the entire record, we conclude
that an objective disinterested observer with knowledge of
all the facts and circumstances would harbor a significant
doubt about the fairness of the court-martial proceedings
and therefore conclude that there is the appearance of un-
lawful command influence in this case. We therefore reverse
the findings and the sentence in this case without prejudice
and return the case to the Judge Advocate General with a
rehearing authorized.
                        I. Background

    The underlying facts leading to the charges and convic-
tions in this sexual assault case are not directly relevant to
the issue before us. We therefore proceed only with a recita-
tion of those facts that are pertinent to the unlawful com-
mand influence allegation.
    During the relevant time period, Lieutenant General (Lt
Gen) Craig A. Franklin was the commander of the Third Air
Force. On February 26, 2013, Lt Gen Franklin used his
clemency authority under Article 60, UCMJ, 10 U.S.C. § 860
(2012), to set aside the findings and sentence in the unrelat-
ed case of United States v. Wilkerson. Wilkerson was a lieu-
tenant colonel (Lt Col) in the Air Force and had been con-
victed at court-martial of aggravated sexual assault. Lt Gen
Franklin’s decision to set aside Wilkerson’s conviction was

   1 One day of credit was for the reprimand Appellant received
as nonjudicial punishment for a crime that he was later convicted
of committing at his court-martial. The other five days of credit
were for excessive post-trial delay without the showing of actual
prejudice.



                               2
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

against the advice of his Staff Judge Advocate (SJA), Colonel
(Col) Joseph Bialke, who recommended clemency in the form
of an adjusted sentence.
    In a March 12, 2013, letter to then-Secretary of the Air
Force Michael B. Donley, Lt Gen Franklin sought to explain
his decision in the Wilkerson case. He wrote:
   Obviously it would have been exceedingly less volatile
   for the Air Force and for me professionally, to have
   simply approved the finding of guilty. This would have
   been an act of cowardice on my part and a breach of my
   integrity. As I have previously stated, after considering
   all matters in the entire record of trial, I hold a genu-
   ine and reasonable doubt that Lt Col Wilkerson com-
   mitted the crime of sexual assault.
    Also on March 12, 2013, General (Gen) Mark A. Welsh
III, who recently had been promoted to Chief of Staff of the
Air Force, e-mailed Lt Gen Franklin, writing: “It’s going to
be a little uncomfortable for awhile. Hang in there.”
    Lt Gen Franklin’s clemency action garnered considerable
negative attention from Congress and the media.2 However,
despite this backlash, Lt Gen Franklin continued to defend
his Wilkerson decision. Indeed, he later tried to intervene on
behalf of then-Lt Col Wilkerson in order to have his promo-
tion to colonel approved upon his release from confinement.
    In a different case addressing sexual assault, United
States v. Oropeza, Lt Gen Franklin explained his thought
process prior to dismissing the charges in the Wilkerson case
as follows:
   Yes, I thought about [my career advancement in the
   military] just knowing that this was probably going to
   get Congressional interest and the Senate, who con-
   firms GOs [general officers] for Three and Four Star
   billets, so whether or not I was going to go to another
   Three-Star Billet after this job, or maybe get a Four-
   Star billet, you know, I knew this would probably make
   this my last job potentially, so yeah, I knew this was
   going to have probably [sic] future impact on me.

   2  A member of the Senate Armed Services Committee com-
mented on Lt Gen Franklin’s decision to set aside the findings and
sentence against Wilkerson, saying that commanders need to be
held “accountable” for overturning sexual assault convictions.



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            United States v. Boyce, No. 16-0546/AF
                    Opinion of the Court

   When asked if he had any regrets about his decision be-
cause of the subsequent political “fallout,” Lt Gen Franklin
replied, “No, I’ll tell you I am sleeping like a baby at
nighttime. I made the right decision even amidst all the at-
tacks.”
    On September 3, 2013, Lt Gen Franklin declined to refer
charges against an airman in the case of United States v.
Wright. This was done prior to trial and consistent with the
recommendation of his SJA, Col Bialke. The charges in that
case also involved sexual assault allegations. See 75 M.J.
501, 502 (A.F. Ct. Crim. App. 2015) (en banc). Shortly after
Lt Gen Franklin dismissed the charges and specifications,
then-Judge Advocate General of the Air Force, Lt Gen Rich-
ard Harding, called Col Bialke regarding the Wright case.
Id. at 503. Col Bialke said that Lt Gen Harding told him:
“the failure to refer the case to trial would place the Air
Force in a difficult position with Congress; absent a ‘smok-
ing gun,’ victims are to be believed and their cases referred
to trial; and dismissing the charges without meeting with
the named victim violated an Air Force regulation.” Id.
    On December 20, 2013, Deborah Lee James was appoint-
ed as Secretary of the Air Force. On December 23, 2013, Lt
Gen Franklin read what he described as an article in which
a senator indicated he would be retiring soon. On December
27, 2013, the Chief of Staff of the Air Force, Gen Welsh, tel-
ephoned Lt Gen Franklin and informed him that the new
Secretary had “lost confidence” in him and that he had two
options: voluntarily retire from the Air Force at the lower
grade of major general, or wait for the Secretary to remove
him from his command in the immediate future. Three
hours after this call, Lt Gen Franklin decided to retire. In
his written retirement request, Lt Gen Franklin stated: “My
decisions as a General Court Martial [sic] convening author-
ity [(GCMCA)] have come under great public scrutiny,” and
“media attention … will likely occur on subsequent sexual
assault cases I deal with.”
   On the same day that Lt Gen Franklin was contacted by
the Chief of Staff, he received the referral package regarding
Appellant’s case, which included sexual assault charges. On
January 6, 2014, Lt Gen Franklin referred Appellant’s case
to a general court-martial. Two days later he publicly an-


                              4
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

nounced that he would step down from his position as Third
Air Force Commander on January 31, 2014, and would offi-
cially retire two months later.
    On January 28, 2014, Lt Gen Franklin was interviewed
by Appellant’s defense counsel. The affidavit documenting
this interview reflects that Lt Gen Franklin stated the fol-
lowing: he decided to refer Appellant’s case “independently”;
there “probably is an appearance of UCI [unlawful command
influence] but I wasn’t affected by it”; and it “would be fool-
ish to say there is no appearance of UCI.”
    On February 13, 2014, the Government provided an affi-
davit to the trial court in response to a defense motion to
dismiss all charges against Appellant due to unlawful com-
mand influence. In this affidavit, Lt Gen Franklin stated:
“Any comments by superior government officials, both civil-
ian and military, had absolutely no impact on my decision-
making as a convening authority,” and “I did not and would
not allow improper outside influence to impact my inde-
pendent and impartial decisions as a GCMCA.” However, he
also conceded in the affidavit that his decision in the Wilker-
son case “has been and continues to be a subject of substan-
tial public controversy,” and noted that the charges which he
had declined to refer in the Wright case “had been re-
preferred by the Air Force District of Washington.”
    In ruling on the defense’s motion, the military judge
stated that although the defense had met its initial burden
of demonstrating that there was some evidence of unlawful
command influence:
   [I]t had absolutely no impact on this particular case.
   There could be an argument, in fact, that General
   Franklin may be the most bombproof of any convening
   authority out there simply because of … his retire-
   ment, and the fact that he has, on occasion, seemingly
   gone against the interests of others in the military.
    In his later written ruling, the military judge stated that
the “Court is convinced beyond a reasonable doubt that
there was no UCI or apparent UCI in [either] the accusato-
rial or adjudicative phases of this proceeding.” On appeal,
the Air Force Court of Criminal Appeals concurred with the
military judge’s analysis.



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              United States v. Boyce, No. 16-0546/AF
                      Opinion of the Court

                       II. Applicable Law

    It has long been a canon of this Court’s jurisprudence
that “[unlawful] [c]ommand influence is the mortal enemy of
military justice.”3 United States v. Thomas, 22 M.J. 388, 393
(C.M.A. 1986). “Indeed,” as Chief Judge Everett noted in
Thomas, “a prime motivation for establishing a civilian
Court of Military Appeals was to erect a further bulwark
against impermissible command influence.” Id. And im-
portantly, our Court’s fulfillment of that responsibility “is
fundamental to fostering public confidence in the … fairness
of our system of justice.” United States v. Harvey, 64 M.J. 13,
17 (C.A.A.F. 2006).
    Two types of unlawful command influence can arise in
the military justice system: actual unlawful command influ-
ence and the appearance of unlawful command influence.
From the outset, actual unlawful command influence has
commonly been recognized as occurring when there is an
improper manipulation of the criminal justice process which
negatively affects the fair handling and/or disposition of a
case. See United States v. Allen, 33 M.J. 209, 212 (C.M.A.
1991); see also United States v. Allen, 31 M.J. 572, 584
(N.M.C.M.R. 1990) (“Unlawful command influence … is im-
permissible command control.”). As reflected below, howev-
er, it took decades for this Court’s jurisprudence to define


   3  The principal statutory provision prohibiting unlawful com-
mand influence is Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2012),
which states in pertinent part: “No person subject to [the UCMJ]
may attempt to coerce or, by any unauthorized means, influence
the action of a court-martial … or any member thereof.” The Sec-
retary of the Air Force is not a person subject to the UCMJ, and it
could be argued that it was her conduct—rather than the conduct
of the Chief of Staff of the Air Force—that raised the issue of un-
lawful command influence in this case. Nevertheless, we need not
address the factual issue of who was the key actor in this case on
the legal issue of whether improper influence by a civilian official
not subject to the UCMJ may present a due process error of con-
stitutional dimension, because the Government unequivocally
conceded at oral argument that our jurisprudence pertaining to
unlawful command influence applies in the instant case, and we
deem it appropriate to accept that concession in the course of ana-
lyzing the assigned issue.



                                 6
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

the contours of what constitutes a meritorious claim of an
appearance of unlawful command influence.
    Initially our Court did not differentiate between actual
unlawful command influence and the appearance of unlaw-
ful command influence. Over the years, however, we have
explored the distinctions between the two.
   The first known acknowledgment of the impropriety of
an appearance of unlawful command influence arose in
1954. In a concurring opinion in United States v. Knudson, 4
C.M.A. 587, 598, 16 C.M.R. 161, 172 (1954) (Brosman, J.,
concurring in the result), Judge Brosman wrote:
    [T]he unfortunate circumstance that the convening
   authority had previously and openly damned one of
   these functionaries as an abuser of discretion gives the
   conduct of the trial an especially unpleasant aroma.
   Viewing the record as a whole, I am fortified in my be-
   lief that the appearance of “command influence” is vivid
   enough here to require reversal.
(Emphasis added.)
    The first time that a majority of the Court of Military
Appeals cited an appearance of unlawful command influence
as a basis for reversing the conviction of a servicemember
occurred ten years later. In United States v. Johnson, 14
C.M.A. 548, 551, 34 C.M.R. 328, 331 (1964), the Court stat-
ed:
   In approaching a problem of this nature, the apparent
   existence of “command control,” through the medium of
   pretrial communication with court members, is as
   much to be condemned as its actual existence. As a
   matter of principle, any doubt in the matter must be
   resolved in favor of the accused.
(Emphasis added.)
   The Court further stated, “The appearance, or the exist-
ence, of command influence provides a presumption of prej-
udice.” Id. (emphasis added).
   It took another three decades for the standard that we
now use in determining whether there was an appearance of
unlawful command influence to emerge. Once again, it was a
separate opinion that led the way. Judge Wiss stated:




                                7
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

   One judge even went so far as to suggest [that] “[t]he
   practice of ranking appellate judges should be discon-
   tinued. In the absence of specific objective criteria, an
   objective, disinterested observer fully informed of the
   facts would entertain a significant doubt that justice
   was being done” and would perceive an appearance of
   command influence.
United States v. Mitchell, 39 M.J. 131, 151 (C.M.A. 1994)
(Wiss, J., concurring in part, dissenting in part, and concur-
ring in the result) (alteration in original) (quoting United
States v. Mitchell, 37 M.J. 903, 930 (N.M.C.M.R. 1993)
(Reed, J., concurring in the result)).4 This language was
adopted in a majority opinion four years later. See United
States v. Calhoun, 49 M.J. 485, 488 (C.A.A.F. 1998) (“[We]
decline to enshrine a right to private civilian counsel paid
for by the Government unless an objective, disinterested ob-
server, with knowledge of all the facts, could reasonably con-
clude that there was at least an appearance of unlawful
command influence over all military and other government
defense counsel.” (emphasis added)).
     A further refinement of this Court’s jurisprudence re-
garding the appearance of unlawful command influence oc-
curred a few years later. Quoting United States v. Rosser, 6
M.J. 267, 271 (C.M.A. 1979), and citing “‘the spirit of the
Code,’” this Court in United States v. Stoneman favorably
cited our previous observation that “‘[t]he appearance of un-
lawful command influence is as devastating to the military
justice system as the actual manipulation of any given tri-
al.’” 57 M.J. 35, 42 (C.A.A.F. 2002). And importantly, in
Stoneman we more explicitly explained the distinction be-
tween actual unlawful command influence and the appear-
ance of unlawful command influence:
   The question whether there is an appearance of unlaw-
   ful command influence is similar in one respect to the
   question whether there is implied bias, because both
   are judged objectively, through the eyes of the commu-
   nity…. Even if there was no actual unlawful command
   influence, there may be a question whether the influence
   of command placed an “intolerable strain on public per-

   4 The Navy-Marine Corps Court of Military Review acknowl-
edged that some of this language was adapted from the case of
United States v. Berman, 28 M.J. 615, 616 (A.F.C.M.R. 1989).



                                8
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

   ception of the military justice system.” See United States
   v. Wiesen, 56 MJ 172, 175 (2001).
Id. at 42–43 (emphasis added) (citations omitted).
    Chief Judge Erdmann wove together the various strands
of our jurisprudence on this topic a decade ago in United
States v. Lewis, 63 M.J. 405, 413 (C.A.A.F. 2006). In doing
so, he first stated that in order for a claim of actual unlawful
command influence to prevail, an accused must meet the
burden of demonstrating: (a) facts, which if true, constitute
unlawful command influence; (b) the court-martial proceed-
ings were unfair to the accused (i.e., the accused was preju-
diced); and (c) the unlawful command influence was the
cause of that unfairness. Id.
    Next, in regard to an appearance of unlawful command
influence, Chief Judge Erdmann wrote:
   Congress and this court are concerned not only with
   eliminating actual unlawful command influence, but
   also with “eliminating even the appearance of unlawful
   command influence at courts-martial.” United States v.
   Rosser, 6 M.J. 267, 271 (C.M.A. 1979).… [T]he “‘ap-
   pearance of unlawful command influence is as devas-
   tating to the military justice system as the actual ma-
   nipulation of any given trial.’” Simpson, 58 M.J. at 374
   (quoting Stoneman, 57 M.J. at 42–43). Thus, “disposi-
   tion of an issue of unlawful command influence falls
   short if it fails to take into consideration … the ap-
   pearance of unlawful command influence at courts-
   martial.” Id.
           Whether the conduct of the Government in this
   case created an appearance of unlawful command in-
   fluence is determined objectively. Stoneman, 57 M.J. at
   42. “Even if there was no actual unlawful command in-
   fluence, there may be a question whether the influence
   of command placed an ‘intolerable strain on public per-
   ception of the military justice system.’” Id. at 42–43
   (quoting United States v. Wiesen, 56 M.J. 172, 175
   (C.A.A.F. 2001)). The objective test for the appearance
   of unlawful command influence is similar to the tests
   we apply in reviewing questions of implied bias on the
   part of court members or in reviewing challenges to
   military judges for an appearance of conflict of interest.
   We focus upon the perception of fairness in the military
   justice system as viewed through the eyes of a reason-
   able member of the public. Thus, the appearance of un-



                                 9
              United States v. Boyce, No. 16-0546/AF
                      Opinion of the Court

   lawful command influence will exist where an objec-
   tive, disinterested observer, fully informed of all the
   facts and circumstances, would harbor a significant
   doubt about the fairness of the proceeding.
Id. at 415 (alteration in original) (citations omitted).
    As can be seen from the above, unlike actual unlawful
command influence where prejudice to the accused is re-
quired, no such showing is required for a meritorious claim
of an appearance of unlawful command influence.5 Rather,
the prejudice involved in the latter instance is the damage to
the public’s perception of the fairness of the military justice
system as a whole and not the prejudice to the individual
accused.6 Consequently, consistent with Chief Judge Erd-
mann’s opinion in Lewis, it is sufficient for an accused to
demonstrate the following factors in support of a claim of an
appearance of unlawful command influence: (a) facts, which
if true, constitute unlawful command influence; and (b) this
unlawful command influence placed an “intolerable strain”
on the public’s perception of the military justice system be-
cause “an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” Id. (internal
quotation marks omitted) (citation omitted).
  In light of these two factors, the following process ensues
when an appellant asserts there was an appearance of un-


   5  A determination that an appellant was not personally preju-
diced by the unlawful command influence, or that the prejudice
caused by the unlawful command influence was later cured, is a
significant factor that must be given considerable weight when
deciding whether the unlawful command influence placed an “in-
tolerable strain” on the public’s perception of the military justice
system. However, such a determination ultimately is not disposi-
tive of the underlying issue of whether the public taint of an ap-
pearance of unlawful command influence still remains.
    6 We discern no tension between this standard and our holding

in United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999), that
“the alleged unlawful command influence [must have] a logical
connection to the court-martial.” A conclusion that there was a
“logical connection” to a court-martial is not the same thing as a
conclusion that there was prejudice to the individual accused. Ra-
ther, “logical connection” is merely a germaneness requirement.



                                10
              United States v. Boyce, No. 16-0546/AF
                      Opinion of the Court

lawful command influence.7 The appellant initially must
show “some evidence” that unlawful command influence oc-
curred. Stoneman, 57 M.J. at 41 (internal quotation marks
omitted) (citation omitted); see also United States v. Ayala,
43 M.J. 296, 300 (C.A.A.F. 1995) (“The quantum of evidence
necessary to raise unlawful command influence is the same
as that required to submit a factual issue to the trier of fact
[i.e., “some evidence].”). This burden on the defense is low,
but the evidence presented must consist of more than “mere
allegation or speculation.” United States v. Salyer, 72 M.J.
415, 423 (C.A.A.F. 2013); see also Allen, 33 M.J. at 212
(“Proof of [command influence] in the air, so to speak, will
not do.” (internal quotation marks omitted) (citation omit-
ted)).
    Once an appellant presents “some evidence” of unlawful
command influence, the burden then shifts to the govern-
ment to rebut the allegation. Specifically, the government
bears the burden of proving beyond a reasonable doubt that
either the predicate facts proffered by the appellant do not
exist, or the facts as presented do not constitute unlawful
command influence. Salyer, 72 M.J. at 423; see also Biagase,
50 M.J. at 151 (“[R]egarding the quantum of proof required:
once an issue of unlawful command influence is raised, the
Government must persuade the military judge and the ap-
pellate courts beyond a reasonable doubt that there was no
unlawful command influence or that the unlawful command
influence did not affect the findings and sentence.”).8 If the
government meets its burden, the appellant’s claim of un-


   7 We review allegations of unlawful command influence de no-
vo. Harvey, 64 M.J. at 19.
    8 Consistent with this Court’s holding in Biagase, we deem it

appropriate to apply a “harmless beyond a reasonable doubt”
standard for both actual and apparent unlawful command influ-
ence because in the military justice system both the right to a trial
that is fair, and the right to a trial that is objectively seen to be
fair, have constitutional dimensions sounding in due process. See
Thomas, 22 M.J. at 393–94 (C.M.A. 1986); see also Rochin v. Cali-
fornia, 342 U.S. 165, 169 (1952) (“Regard for the requirements of
the Due Process Clause ‘inescapably imposes upon this Court an
exercise of judgment upon the whole course of the proceedings …
in order to ascertain whether they offend [canons of fairness] ….”).



                                 11
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

lawful command influence will be deemed to be without mer-
it and no further analysis will be conducted. See Salyer, 72
M.J. at 423; Biagase, 50 M.J. at 151.
    If the government does not meet its burden of rebutting
the allegation at this initial stage, then the government may
next seek to prove beyond a reasonable doubt that the un-
lawful command influence did not place “‘an intolerable
strain’” upon the public’s perception of the military justice
system and that “‘an objective, disinterested observer, fully
informed of all the facts and circumstances, would [not] har-
bor a significant doubt about the fairness of the proceeding.’”
Salyer, 72 M.J. at 423 (quoting Lewis, 63 M.J. at 415). If the
government meets its evidentiary burden at this stage of the
analysis, then the appellant merits no relief on the grounds
that there was an appearance of unlawful command influ-
ence. See, e.g., United States v. Villareal, 52 M.J. 27, 30–31
(C.A.A.F. 1999) (this Court affirming the decision of the
court below after finding that any appearance of unlawful
command influence was cured by the military judge’s actions
at court-martial). If the government does not meet its evi-
dentiary burden, however, this Court will fashion an appro-
priate remedy. Lewis, 63 M.J. at 416.
   It is these precedents, principles, and procedures—which
have been articulated by this Court over the course of more
than six decades—which serve as our touchstone as we ana-
lyze Appellant’s claims of unlawful command influence in
the instant case.
                         III. Analysis

    Appellant is challenging his convictions on the basis of
both actual unlawful command influence and the appear-
ance of unlawful command influence. We first turn our at-
tention to the issue of whether there was actual unlawful
command influence in this case. We hold there was not. Spe-
cifically, we conclude that even assuming an unrebutted
showing of unlawful command influence by the Secretary of
the Air Force and/or the Chief of Staff of the Air Force, there
is an insufficient basis to deduce that Appellant personally
suffered any prejudice.
   In reaching this conclusion, we note the following: a con-
vening authority merely applies a reasonable grounds


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             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

standard in determining whether to refer charges to a gen-
eral court-martial (which is quite a low standard), Rule for
Courts-Martial 601(d)(1); there were two witnesses—not just
one—who alleged abuse by Appellant; there was physical
evidence corroborating the allegations against Appellant;
there was evidence that Appellant had previously engaged
in similar violence; the Article 32, UCMJ, 10 U.S.C. § 832
(2012), Investigating Officer (IO) recommended referral of
all sexual assault charges; and every subordinate command-
er and the SJA recommended referral of all charges against
Appellant. Thus, there is no reasonable likelihood that a dif-
ferent convening authority standing in the shoes of Lt Gen
Franklin would have made a different referral decision. Ac-
cordingly, Appellant is entitled to no relief based on a claim
of actual unlawful command influence.
   We reach a different result, however, in regard to Appel-
lant’s claim of an appearance of unlawful command influ-
ence. In reaching this conclusion we first address the mili-
tary judge’s determination that Lt Gen Franklin was
“bombproof” in regard to exercising his discretion as the
general court-martial convening authority (GCMCA) in this
case. As the Government’s appellate brief memorably char-
acterizes it, the military judge’s reasoning was as follows:
   [O]f all the general court-martial convening authorities
   that the Appellant could have ended up with, he was
   fortunate enough to have drawn a convening authority
   who had a long history of ignoring political pressure,
   and, by the time he reviewed the Appellant’s case, no
   longer had anything to gain or lose when it came to his
   Air Force career.
    We conclude that the military judge’s determination that
Lt Gen Franklin was “bombproof” is not supported by the
facts and circumstances surrounding this case. (Although it
is a close question, we view the military judge’s determina-
tion that Lt Gen Franklin was “bombproof” as being a legal
conclusion rather than a factual finding (i.e., based on the
facts in this case, the military judge reached the legal con-
clusion that Lt Gen Franklin was immune to unlawful com-
mand influence).) Specifically, we note that the personnel
actions previously taken by the Secretary of the Air Force
and/or the Chief of Staff of the Air Force did not inoculate Lt



                               13
            United States v. Boyce, No. 16-0546/AF
                    Opinion of the Court

Gen Franklin from further negative personnel actions. For
example, if the Secretary came to believe that Lt Gen Frank-
lin was obstinately “refusing” to refer “another” meritorious
case to a general court-martial, she could have removed him
immediately from his position of command—which likely
would have carried significant consequences in terms of ad-
verse public attention and post-military career opportuni-
ties. Thus, an objective disinterested observer would not
agree that Lt Gen Franklin had nothing to gain or lose here.
Moreover, we note that in light of the attendant circum-
stances in this case, if anything, Lt Gen Franklin would
have been more acutely aware than other GCMCAs about
how closely his referral decisions were being scrutinized by
his superiors and about the potential personal consequences
of “ignoring political pressure” when making those referral
decisions. Thus, we conclude that, at a minimum, Lt Gen
Franklin was no more “bombproof” than any other GCMCA.
    We next address the military judge’s heavy reliance on
Lt Gen Franklin’s assurance that his decision to refer the
instant case to a general court-martial was not affected by
the previous personnel action taken against him. Specifical-
ly, Lt Gen Franklin stated that he “did not and would not
allow improper outside influences to impact [his] independ-
ent and impartial decisions as a GCMCA.” But that state-
ment by Lt Gen Franklin did not stand in isolation; in his
January 28, 2014, interview with defense counsel for this
case, he admirably conceded that there “probably is an ap-
pearance of UCI,” and it “would be foolish to say there is no
appearance of UCI.”
    As we can see from these statements, Lt Gen Franklin
himself acknowledged the existence of many of the essential
facets of a valid claim of an appearance of unlawful com-
mand influence. We therefore conclude that the military
judge’s heavy reliance on Lt Gen Franklin’s assurances in
this case was misplaced.
   Next, we address the Government’s argument that there
can be no finding of unlawful command influence here be-
cause “no one in a position of authority over Lt Gen Franklin
… even knew of the existence of [this] specific case.” This
argument is unavailing. It is irrelevant whether the Secre-
tary of the Air Force or the Chief of Staff of the Air Force


                             14
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

sought to affect Lt Gen Franklin’s independent discretionary
decision-making as a GCMCA in this particular case. No
showing of knowledge or intent on the part of government
actors is required in order for an appellant to successfully
demonstrate that an appearance of unlawful command in-
fluence arose in a specific case. See Biagase, 50 M.J. at 151.
In cases involving unlawful command influence, the key to
our analysis is effect—not knowledge or intent.
    Having disposed of these preliminary matters, we now
turn our attention to the two principal issues at hand. First,
did the Secretary of the Air Force and/or the Chief of Staff of
the Air Force engage in conduct that constituted unlawful
command influence? See Salyer, 72 M.J. at 423. And second,
if there was unlawful command influence, would an objec-
tive, disinterested observer, fully informed of all the facts
and circumstances, harbor a significant doubt about the
fairness of the proceeding? See id. We conclude that the an-
swer to both questions is “Yes.”
   In concluding that Appellant has met his burden of show-
ing “some evidence” that the conduct of the Secretary of the
Air Force and/or the Chief of Staff of the Air Force constitut-
ed unlawful command influence, we note the following
points. See Stoneman, 57 M.J. at 41.
         Prior to the confirmation of Deborah Lee James as
          Secretary of the Air Force, a key member of the
          Senate Armed Services Committee who would lat-
          er vote on her nomination commented on Lt Gen
          Franklin’s decision to set aside the findings and
          sentence in the Wilkerson case. The senator specif-
          ically stated that commanders needed to be held
          “accountable” for their handling of sexual assault
          charges.
         Ms. James subsequently was confirmed by the
          Senate, and on December 20, 2013, she was sworn
          in as Secretary of the Air Force.
         On December 23, 2013, Lt Gen Franklin read
          what he described as an article in which one of the
          senators on the Senate Armed Services Committee
          indicated that he was scheduled to retire in the
          near future.


                              15
      United States v. Boyce, No. 16-0546/AF
              Opinion of the Court

   On December 27, 2013, the Chief of Staff of the
    Air Force telephoned Lt Gen Franklin and in-
    formed him that the new Secretary had “lost con-
    fidence” in him and that he had two options: vol-
    untarily retire from the Air Force at the lower
    grade of major general, or wait for the Secretary to
    remove him from his command in the immediate
    future.
   Three hours after this call, Lt Gen Franklin decid-
    ed to retire. Because Lt Gen Franklin did not have
    the requisite time in his highest pay grade, this
    retirement carried with it a loss of rank and a con-
    comitant loss of retirement pay.
   In his written retirement request, Lt Gen Frank-
    lin acknowledged the following: “My decisions as a
    [GCMCA] have come under great public scrutiny,”
    and “media attention … will likely occur on subse-
    quent sexual assault cases I deal with.”
   On the same day that Lt Gen Franklin was con-
    tacted by the Chief of Staff, he received the refer-
    ral package regarding Appellant’s case. On Janu-
    ary 6, 2014, Lt Gen Franklin referred Appellant’s
    case, which included sexual assault charges, to a
    general court-martial. Thus, Appellant’s case
    qualified as a “subsequent sexual assault case[]”
    that Lt Gen Franklin had expressed concern about
    due to the likelihood of “media attention” and
    “great public scrutiny.”
   At the time he made the referral in Appellant’s
    case, Lt Gen Franklin was vulnerable to addition-
    al adverse personnel action by the Secretary of the
    Air Force. (Lt Gen Franklin did not officially retire
    until April 1, 2014.)
   The Secretary of the Air Force and the Chief of
    Staff of the Air Force failed to take the necessary
    prophylactic steps to ensure that Lt Gen Frank-
    lin’s handling of “subsequent sexual assault cases”
    did not give rise to the appearance of unlawful
    command influence. Specifically, upon determin-
    ing that they had lost confidence in him, Lt Gen


                       16
             United States v. Boyce, No. 16-0546/AF
                     Opinion of the Court

          Franklin’s superiors failed to direct him not to
          take any further action in regard to court-martial
          matters pending before him. (For example, they
          did not direct him to send these matters to a high-
          er headquarters GCMCA; they did not direct him
          to send them to an adjacent headquarters
          GCMCA; and they did not direct him to delay ac-
          tion on these matters and hold them until either
          an acting commander or successor in command
          had taken over.)
         In the alternative, once Lt Gen Franklin actually
          did refer the instant case to a general court-
          martial, his superiors failed to withdraw the
          charges and to then seek re-referral through
          commanders untainted by unlawful command in-
          fluence.
   Under the totality of these circumstances, we conclude
that Appellant has shown “some evidence” of unlawful com-
mand influence by the Secretary of the Air Force and/or the
Chief of Staff of the Air Force regarding the referral of the
instant case to a general court-martial. See Stoneman, 57
M.J. at 41. In making this determination, we conclude that
the Government has not met its burden of proving beyond a
reasonable doubt that the relevant facts cited above did not
exist or that these facts did not constitute unlawful com-
mand influence. See Salyer, 72 M.J. at 423.
    Having established that there was apparent unlawful
command influence in this case, we next conclude that the
Government has not met its burden of proving beyond a rea-
sonable doubt that the conduct of the Secretary of the Air
Force and/or the Chief of Staff of the Air Force did not place
an intolerable strain upon the public’s perception of the mili-
tary justice system. See id. To the contrary, we deem the to-
tality of the circumstances in this case to be particularly
troubling and egregious. As such, we conclude that an objec-
tive, disinterested observer with knowledge of all the facts
would harbor a significant doubt about the fairness of the
court-martial proceedings. See Lewis, 63 M.J. at 415. Specif-
ically, we conclude that members of the public would under-
standably question whether the conduct of the Secretary of
the Air Force and/or the Chief of Staff of the Air Force im-


                              17
              United States v. Boyce, No. 16-0546/AF
                      Opinion of the Court

properly inhibited Lt Gen Franklin from exercising his
court-martial convening authority in a truly independent
and impartial manner as is required to ensure the integrity
of the referral process. Indeed, we adopt Lt Gen Franklin’s
words as our own: “[It] would be foolish to say there is no
appearance of UCI.”
    In reaching our holding in this case, we fully
acknowledge that we do not have the authority to redress
the chilling effect that the conduct of the Secretary of the Air
Force and/or the Chief of Staff of the Air Force generally
may have had on other convening authorities and in other
criminal cases that are not before us. We recognize that such
systemic problems must be left to Congress and the execu-
tive to address. Nonetheless, in individual cases that are
properly presented to this Court—such as Appellant’s—we
will remain ever mindful of Chief Judge Everett’s admoni-
tion that unlawful command influence is the “mortal enemy
of military justice,” and we will meet our responsibility to
serve as a “bulwark” against it by taking all appropriate
steps within our power to counteract its malignant effects.9
Thomas, 22 M.J. at 393.
                         IV. Conclusion

    This Court unequivocally endorses the Supreme Court’s
observation that “[f]ederal courts have an independent in-
terest in ensuring that … legal proceedings appear fair to all
who observe them.” Wheat v. United States, 486 U.S. 153,
160 (1988). In adhering to this pronouncement, we conclude
that the appearance of unlawful command influence in this
case cannot go unaddressed. Accordingly, we reverse the
findings and sentence in this case without prejudice10 and

    9 We pointedly emphasize that this mission is not ours alone.

Military judges must continue to fulfill their essential role as the
“sentinel” of the military justice system in indentifying and ad-
dressing instances of unlawful command influence. Harvey, 64
M.J. at 14; see also United States v. Douglas, 68 M.J. 349, 355
(C.A.A.F. 2010). Moreover, judges on the service Courts of Crimi-
nal Appeals must also appropriately address unlawful command
influence whenever they encounter it in specific cases.
   10  While Appellant has the right to a court-martial process
that is free from the taint of unlawful command influence, we con-
clude that reversing the findings with prejudice would result in an


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              United States v. Boyce, No. 16-0546/AF
                      Opinion of the Court

return the case to the Judge Advocate General of the Air
Force. A rehearing is authorized.




improper windfall for Appellant because he did not suffer individ-
ualized prejudice in this case. Cf. United States v. Villamil-Perez,
32 M.J. 341, 344 (C.M.A. 1991) (concluding that appellant suffered
no substantial prejudice, so setting aside his dishonorable dis-
charge or reducing its degree “would be an unjustified windfall for
appellant”).



                                19
             United States v. Boyce, No. 16-0546/AF


   Judge STUCKY, dissenting.

    The goal of a court-martial is to seek justice, both for so-
ciety and for the accused. When a court-martial fails to at-
tain that goal, the commander-in-chief, relevant senior gov-
ernment leaders, and members of Congress may have a duty
to speak out and provide the remedies justice requires.
However, when they publically castigate individual conven-
ing authorities because they disagree with how that conven-
ing authority exercised his or her statutory discretion and
demand convening authorities exercise that discretion in a
specific manner, they send a perceptible chill over the entire
military justice system that may affect the right of an ac-
cused to a fair trial.
    Nevertheless, I am unable to agree with the majority
that the Secretary of the Air Force or the Chief of Staff of
the Air Force actually or apparently unlawfully influenced
Appellant’s court-martial. Article 37(a), UCMJ, provides, in
part: “No person subject to this chapter may attempt to co-
erce or, by any unauthorized means, influence … the action
of any convening, approving, or reviewing authority with re-
spect to his judicial acts.” 10 U.S.C. § 837(a) (2012). There is
no evidence that the Secretary even knew of Appellant’s
case, let alone that she tried to coerce or influence Lieuten-
ant General (Lt Gen) Franklin’s referral decision. Instead,
she merely exercised her lawful authority to remove a com-
mander in whom she had lost confidence by giving him an
ultimatum: retire or be fired. The Chief of Staff simply re-
layed the Secretary’s message. Therefore, I do not see this
case as one involving unlawful influence.
    After finding no actual unlawful influence, the majority
concludes that there is the appearance of unlawful command
influence. To reach its conclusion, the majority relies on a
test that, by its own terms, makes little sense: “‘Thus, the
appearance of unlawful command influence will exist where
an objective, disinterested observer, fully informed of all the
facts and circumstances, would harbor a significant doubt
about the fairness of the proceeding.’” United States v.
Boyce, __ M.J. __, __ (9–10) (C.A.A.F. 2017) (quoting United
States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). But it is
difficult to understand how an objective, disinterested, fully
             United States v. Boyce, No. 16-0546/AF
                  Judge STUCKY, dissenting

informed observer, knowing that there is no actual unlawful
influence, “would harbor a significant doubt about the fair-
ness of the proceeding.”
    Although the issue was not raised by Appellant, I believe
Lt Gen Franklin was an “accuser” and, thus, disqualified
from referring Appellant’s case to trial. A commanding of-
ficer who is an accuser may not convene a court-martial. Ar-
ticle 22(b), UCMJ, 10 U.S.C. § 822(b) (2012). “The term ‘ac-
cuser’ means a person who signs and swears to charges, any
person who directs that charges nominally be signed and
sworn to by another, and any other person who has an inter-
est other than an official interest in the prosecution of the ac-
cused.” Article 1(9), UCMJ, 10 U.S.C. § 801(9) (2012) (em-
phasis added). When the convening authority is an accuser,
“the court shall be convened by superior competent authori-
ty.” Article 22(b), UCMJ; see United States v. Ashby, 68 M.J.
108, 131 (C.A.A.F. 2009) (explaining that a convening au-
thority may become a de facto accuser if his interest in the
case is other than official).
    Under the facts of this case, as ably recounted in the ma-
jority opinion, Lt Gen Franklin was a de facto accuser. He
had an interest in the case that was other than official, viz.,
at what grade he would be retired. In such circumstances, he
was disqualified from referring the case to trial and should
have sent Appellant’s case to a superior competent authority
to determine whether to refer the case to trial. Rule for
Courts-Martial (R.C.M.) 601(c) Discussion (“A convening au-
thority who is disqualified may forward the charges and al-
lied papers for disposition by competent authority superior
in rank or command.”).
    In this case, however, Lt Gen Franklin’s disqualification
does not inure to Appellant’s benefit. Nonjurisdictional ob-
jections based on defects in the referral of charges must be
made before trial. R.C.M. 905(b)(1). The disqualification of
the convening authority is a nonjurisdictional defect. United
States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009); Unit-
ed States v. Wilson, 21 M.J. 193, 197 (C.M.A. 1986). There-
fore, Appellant’s failure to raise the issue before pleas were
entered constituted waiver. R.C.M. 905(e).




                               2
            United States v. Boyce, No. 16-0546/AF
                 Judge STUCKY, dissenting

   As Appellant is not entitled to relief, I respectfully dis-
sent.




                              3
              United States v. Boyce, No. 16-0546/AF


   Judge RYAN, dissenting.

   I agree with the majority that there was no actual un-
lawful command influence in this case. I respectfully dissent
because I also believe that there was no prejudice to the ac-
cused.
    “A finding or sentence of a court-martial may not be held
incorrect on the ground of an error of law unless the error
materially prejudices the substantial rights of the accused.”
Article 59(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 859(a) (2012) (emphasis added). Without prejudice
to the substantial rights of the accused from an error—
hitherto defined as “ ‘a reasonable probability that, but for
the error, the outcome of the proceeding would have been
different,’ ” United States v. Lopez, __ M.J. __, __ (4)
(C.A.A.F. 2017) (quoting Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016))—Article 59(a), UCMJ, prohib-
its us from affording relief. The majority ably points out that
there is not one iota of prejudice to the accused in this case
because “there is no reasonable likelihood that a different
convening authority standing in the shoes of Lt Gen Frank-
lin would have made a different referral decision.” United
States v. Boyce, __ M.J. __ , __ (13) (C.A.A.F. 2017). After
finding no prejudice, however, the majority goes on to grant
Appellant relief, despite the restriction that Article 59(a),
UCMJ, places on this Court.
    The background story of this case is pregnant with every
appearance of manifestly punitive actions by the Secretary
of the Air Force (SECAF) and the Chief of Staff of the Air
Force (CSAF) toward Lt Gen Franklin. See id. at __ (2–5).
And their actions were no doubt incited by various state-
ments made by members of Congress after Lt Gen Franklin
exercised his statutory discretion1 in United States v.


   1  As the convening authority, Lt Gen Franklin had unfettered
discretion in United States v. Wilkerson to set aside the findings of
guilty if he believed the accused was not guilty. See Article
60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1) (2012) (“The authority under
this section to modify the findings and sentence of a court-martial
is a matter of command prerogative involving the sole discretion of
the convening authority.”); see also Rule for Courts-Martial
(R.C.M.) 1107(c)(2) (2012). Similarly, in United States v. Wright,
              United States v. Boyce, No. 16-0546/AF
                     Judge RYAN, dissenting

Wilkerson and United States v. Wright.2 While disturbing, in
the final analysis, the only person “prejudiced” by the ac-


Lt Gen Franklin had statutory discretion to decline to refer charg-
es. See Article 60(c)(1), UCMJ; R.C.M. 601(d)(1) Discussion.
2 Public examples of congressional outrage in response to Lt Gen
Franklin’s actions abound. For example, Senator McCaskill wrote
an op-ed in response to Wilkerson, requesting that the SECAF and
CSAF conduct a review of Lt Gen Franklin’s actions, Claire
McCaskill, Their day in court, St. Louis Post-Dispatch (Mar. 12,
2013), http://www.stltoday.com/news/opinion/columns/their-day-
in-court/article_ced54e14-5dca-5c53-a038-4b9de9ccbaa9.html (last
visited May 17, 2017); Senator Gillibrand said in response to
Wilkerson that “[e]veryone knows the current [military justice]
system is not working,” Donna Cassata, Outraged lawmakers look
to change military justice, Associated Press (Apr. 30, 2013),
https://www.yahoo.com/news/outraged-lawmakers-look-change-
military-justice-071108517.html; and Senators Boxer and
Shaheen wrote a letter to Secretary Hagel decrying the fact that
Lt Gen Franklin had not “adequately explained” his clemency de-
cision in Wilkerson and urging Secretary Hagel to both provide
more information about the clemency decision and take action to
restrict military commander authority. Press Release, Senator
Jeanne Shaheen, Boxer, Shaheen Call on Defense Secretary Hagel
to Immediately Review Dismissal of Sexual Assault Case (Mar. 4,
2013), https://www.shaheen.senate.gov/news/press/boxer-shaheen-
call-on-defense-secretary-hagel-to-immediately-review-dismissal-
of-sexual-assault-case; see also Press Release, Senator Claire
McCaskill, McCaskill Calls for Removal of Lt. Gen. Craig Franklin
from           Command              (Dec.         18,          2013),
https://www.mccaskill.senate.gov/media-center/news-
releases/mccaskill-calls-for-removal-of-lt-gen-craig-franklin-from-
command (describing Lt Gen Franklin as “unfit for command” and
lacking in “sound judgment,” “basic professional judgment,” and
“respect for the responsibilities held by military commanders to
protect those under their authority”); Press Release, Senator
Kirsten Gillibrand, Gillibrand Statement on Retirement of Mili-
tary Commander Who Overturned Guilty Verdict In Aviano Sexual
Assault Case and Shut Down Court Martial [sic] of Accused Rapist
in      Another      Assault        Case     (Jan.      8,     2014),
https://www.gillibrand.senate.gov/newsroom/press/release/gillibra
nd-statement-on-retirement-of-military-commander-who-
overturned-guilty-verdict-in-aviano-sexual-assault-case-and-shut-
down-court-martial-of-accused-rapist-in-another-assault-case- (de-
scribing Lt Gen Franklin as “untrained” and “biased,” and accus-
ing him of “subvert[ing] justice”).




                                 2
             United States v. Boyce, No. 16-0546/AF
                    Judge RYAN, dissenting

tions recounted by the majority was Lt Gen Franklin, whose
reputation was sullied and career cut short. There is no evi-
dence that the SECAF or CSAF “attempt[ed] to coerce or, by
any unauthorized means, influence the action of [Appel-
lant’s] court-martial.” Article 37(a), UCMJ, 10 U.S.C.
§ 837(a) (2012). Indeed, there is no evidence the SECAF or
CSAF were even aware of Appellant’s case, or that anyone
believed that they were.
    I also agree with Judge Stucky that if there is no actual
unlawful influence, “it is difficult to understand how an ob-
jective, disinterested, fully informed observer” would doubt
the fairness of the proceedings—at least in this case. Boyce,
__ M.J. at __ (1–2) (Stucky, J., dissenting). The military
judge found as a matter of fact that Lt Gen Franklin “may
be the most bombproof of any convening authority” because
he had resolved to retire before referring Appellant’s charges
and had, “on occasion, seemingly gone against the interests
of others in the military” in Wilkerson and Wright. This fac-
tual finding is amply supported by the record.3 Based in part
on this finding of fact, and the fact that every other person
in the chain of command had recommended a general court-
martial, the military judge in this case found as a matter of
law that there was no actual or apparent unlawful command
influence. Yet the majority, contrariwise, determines that Lt
Gen Franklin’s demonstrably independent judgment is a
“legal conclusion,” and then dismisses it. See Boyce, __ M.J.
at __ (13).
    Certainly there was monkey business aplenty here with
respect to Lt Gen Franklin, and I share the majority’s frus-
tration with “the chilling effect that the conduct of the Sec-
retary of the Air Force and/or the Chief of Staff of the Air
Force generally may have had on other convening authori-
ties and in other criminal cases that are not before us.” Id.
at __ (18). But a correctible legal error of apparent unlawful
command influence must be based upon more than the theo-
retical presence of influence on a particular convening au-

   3 The Air Force Court of Criminal Appeals reaffirmed this fac-
tual finding. United States v. Boyce, No. ACM 38673, 2016 CCA
LEXIS 198, at *23, 2016 WL 1276663, at *8 (A.F. Ct. Crim. App.
Mar. 24, 2016).




                               3
             United States v. Boyce, No. 16-0546/AF
                    Judge RYAN, dissenting

thority. It must be based upon an objective observation of
the “facts and circumstances” of an individual case, and a
finding of substantial prejudice to the rights of the accused.
See United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F.
2013). As we have stated in another context:
      [T]here must be something more than an appear-
      ance of evil to justify action by an appellate court in
      a particular case. “Proof of [command influence] in
      the air, so to speak, will not do.” We will not pre-
      sume that a military judge has been influenced
      simply by the proximity of events which give the
      appearance of command influence in the absence of
      a connection to the result of a particular trial.

United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) (al-
teration in original) (footnote omitted) (citations omitted),
cert. denied, 503 U.S. 936 (1992); see also United States v.
Levite, 25 M.J. 334, 341 (C.M.A. 1987) (Cox, J., concurring).
The majority’s sole attempt to find more than “proof in the
air” is its assertion that Lt Gen Franklin “was vulnerable to
additional adverse personnel action by the Secretary of the
Air Force” if he did not refer Appellant’s case, Boyce, __ M.J.
at __ (16) (emphasis added), despite the fact that Lt Gen
Franklin realistically had nowhere lower to go than he had
already gone, and despite its conclusion that, due to the
amount of evidence supporting referral, no other convening
authority would have made a different referral decision in
the accused’s case. See id. at __ (13).
    I posit that Congress had good reason to tether appellate
relief to Article 59(a)’s requirement of prejudice to the ac-
cused, and thus respectfully dissent from the majority’s con-
clusion that this case was “properly presented.” Id. at __
(18).




                                4
