This opinion is subject to administrative correction before final disposition.

Before 

CRISFIELD, STEPHENS, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Paul E. COOPER

Yeoman Second Class (E-5), U.S. Navy

Appellant

No. 201500039

Decided: 10 December 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Robert B. Blazewick (Trial)

Marcus N. Fulton (DuBay Hearing)

Sentence adjudged 19 September 2014 by a general court-martial 

convened at Naval Station Mayport, Florida, consisting of officer and 

enlisted members. Sentence approved by the convening authority:

reduction to pay grade E-1, forfeiture of all pay and allowances, 

confinement for five years, and a dishonorable discharge.

For Appellant:

Lieutenant Michael W. Wester, JAGC, USN

Lieutenant Ryan W. Aikin, JAGC, USN

For Appellee:

Major Kerry E. Friedewald, USMC

Lieutenant Joshua C. Fiveson, JAGC, USN

Lieutenant Commander Justin C. Henderson, JAGC, USN
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

2

Senior Judge STEPHENS delivered the opinion of the Court, in which 

Judge DEERWESTER joined. Chief Judge Emeritus CRISFIELD filed 

a separate dissenting opinion.

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

STEPHENS, Senior Judge:

In 2014, Appellant was convicted, contrary to his pleas, of three specifications of sexual assault and one specification of abusive sexual contact, in 

violation of Article 120, Uniform Code of Military Justice [UCMJ].1 In 2015, 

this Court ordered a DuBay2 hearing to ascertain whether Appellant’s trial 

defense counsel [TDC] was ineffective in failing to submit Appellant’s request

for a certain Individual Military Counsel [IMC]. The DuBay military judge

found that Appellant did make an IMC request to his TDC, who did not 

properly forward it for action by the appropriate approval authority, and that 

the IMC would have been reasonably available for his trial. Based on that, in 

2018 we set aside the findings and sentence and remanded the case for a new 

trial. But the Judge Advocate General of the Navy certified the case to the 

Court of Appeals for the Armed Forces [CAAF], asserting, among other 

things, that during the trial, Appellant waived his right to an IMC during a 

colloquy with the military judge. CAAF agreed that Appellant waived his 

right to an IMC, declined to reach the remaining certified issues, and remanded to this Court to resolve the remaining assertions of error, which 

include whether Appellant’s TDC was ineffective for failing to submit his 

IMC request.

Now that this case is before us for a second time, we use our authority 

under Article 66, UCMJ, as expressed by CAAF in United States v. Chin,3 to 

disregard Appellant’s waiver and find ineffective assistance of counsel by the 

TDC, find material prejudice to Appellant’s substantial statutory right to 

IMC, set aside the findings and sentence, and remand for a new trial. 

1 10 U.S.C. § 920.

2 37 C.M.R. 411 (C.M.A. 1967).

3 75 M.J. 220 (C.A.A.F. 2016).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

3

I. BACKGROUND

Appellant, a Navy Reservist, was assigned to support Joint Task ForceGuantanamo Bay, Cuba [JTF-GTMO]. While in Cuba, he met Petty Officer 

Second Class [PO2] Papa4 and they returned to his billeting trailer. The next 

day, PO2 Papa reported a sexual assault. Appellant claimed the sexual 

contact was consensual. No alcohol was involved and there were no physical 

injuries to PO2 Papa.

As Appellant was assigned duties in the JTF-GTMO staff judge advocate’s 

office, he knew several judge advocates. One of them, TN, was an Army 

National Guard Captain [CPT] who arrived at the time Appellant learned he 

was under investigation for a sexual assault. Captain TN formed an attorneyclient relationship with Appellant concerning some un-related legal assistance matters and later became Appellant’s supervisor. Appellant was unable 

to get any local military defense counsel in Cuba and decided to speak with 

CPT TN about his case. According to CPT TN, Appellant had “no one else to 

talk to, no one to give him any guidance at all,”5 and formed an attorneyclient relationship with Appellant concerning the sexual assault investigation.

After charges were preferred, an active duty Navy Lieutenant [LT], 

LT JB, was detailed as Appellant’s TDC. She was stationed in Mayport, 

Florida, and represented Appellant at the Article 32, UCMJ, hearing. Appellant believed the hearing had gone poorly and he wanted to request an IMC.

He initially requested a Commander in the Navy Reserve who was in Cuba. 

But after TDC conducted some research, she told Appellant the Commander

would not be available because he was transitioning from active duty. So, 

Appellant agreed not to pursue the Commander.

After the hearing, Appellant ran into CPT TN at a base facility in Cuba. 

After telling him how the hearing went, CPT TN told Appellant he was 

available and willing to be his IMC. Captain TN also told Appellant he would 

need to request him as an IMC.

What happened next was only determined at the post-trial DuBay hearing. When the DuBay military judge took LT JB’s testimony, she testified 

4 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.

5 DuBay Military Judge Findings of Fact and Conclusions of Law at 2 (quoting 

DuBay Hearing R. at 237).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

4

that Appellant never requested CPT TN as an IMC, though she did admit to 

speaking with him when she contacted him as a character witness. But

CPT TN testified that in his conversation with LT JB, he told her he had an 

attorney-client relationship with Appellant and wanted to represent him at 

the court-martial as his IMC. Lieutenant JB testified that CPT TN never told 

her these things. Even though the DuBay military judge found both witnesses credible, he found Appellant had carried his burden to show he had told 

his TDC that he wanted CPT TN for his IMC. The military judge also found 

CPT TN was reasonably available at the time to serve as Appellant’s IMC.

Appellant, believing he could not have CPT TN as his IMC, asked his 

TDC about a Marine Captain, but his TDC told him the Captain had left 

Guantanamo Bay to be a trial counsel and, because he was now a prosecutor, 

would not be available. Appellant agreed to not pursue him, either.

At his arraignment, Appellant and his counsel engaged in a brief colloquy 

with the military judge. Following the script from the Navy-Marine Corps 

trial guide, the military judge asked TDC if any other counsel had been 

detailed to the case or if any IMC had been requested. Lieutenant JB answered, “No, sir.” Continuing with the script, the military judge informed 

Appellant of his rights to counsel and his right to IMC. Appellant responded 

that he understood his rights, that he wanted to be represented by LT JB, 

and that he did not wish to be represented by any other counsel. About a 

month later, Lieutenant Commander [LCDR] NG was also detailed to Appellant’s case. When LCDR NG made his first appearance on the record, he 

answered in the negative when the military judge asked if any other counsel 

had been detailed. Appellant did not contradict his TDC or speak up about 

his IMC requests. 

In 2018, this Court heard Appellant’s appeal and decided in his favor on 

the IMC issue, set aside the findings and sentence, and remanded his case for 

a new trial. We did so because Appellant’s TDC deprived him of his statutory 

right to an IMC when she failed to forward his IMC request for CPT TN. In 

that opinion, we also took the unusual step of issuing a written factual 

sufficiency analysis [upon finding the convictions factually sufficient] in a 

case where we were remanding for a new trial. We also considered the other 

assignments of error mooted by the remand. This included whether TDC was 

ineffective for failing to forward the three separate IMC requests.

The Judge Advocate General of the Navy certified four issues to CAAF: 

(1) did Appellant waive his right to IMC; (2) should TDC’s failure to submit 
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

5

the IMC request be reviewed for ineffective assistance of counsel [IAC] under 

Strickland v. Washington,

6 (3) if Strickland did not apply, whether Appellant 

was deprived of his statutory right to an IMC, and (4) whether Appellant was 

prejudiced.

A divided CAAF held that the above-described colloquies demonstrated a 

“knowing and intelligent waiver”7 of his right to IMC. This rendered the other

certified issues moot and the case was remanded to this Court to resolve the 

remaining AOEs.

8 On remand, we granted Appellant’s motion to augment his 

initial AOEs with additional ones.9 We only discuss the AOEs necessary for 

resolution of this case.

6 466 U.S. 668 (1984).

7 United States v. Cooper, 78 M.J. 283, 287 (2019).

8 The remaining issues were: (1) whether the TDC was ineffective concerning 

IMC [though that issue was held to be waived by Appellant], was ineffective in failing 

to challenge Government expert testimony or to rebut it with Defense expert testimony; (2) whether the evidence was legally and factually sufficient; (3) whether the 

military judge erred in excluding hearsay evidence; (4) Appellant was denied his 

Sixth Amendment right to choice of counsel and his statutory right to IMC; (5) the 

military judge erred in admitting testimony in violation of the Confrontation Clause; 

(6) unlawful command influence by the convening authority; (7) deficient Article 32, 

UCMJ, investigation; (8) IAC due to the TDC’s failure to move to suppress a written 

statement; (9) IAC due to TDC;s failure to question complaining witness about 

inaccuracies in her testimony; and (10) IAC due to cumulative error. AOEs (6) 

through (10) were all raised pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982).

9 The supplemental AOEs were: (11) This Court erred in its initial Article 66(c) 

review by placing the burden on Appellant to prove the victim’s motive to fabricate

and therefore a new de novo factual sufficiency review is required; (12) This Court 

should conduct a new factual sufficiency review and find that Appellant’s convictions 

are not factually sufficient; (13) Appellant did not receive effective assistance of 

counsel when his TDC incorrectly told the military judge that Appellant did not

request IMC; and (14) Appellant has been denied his right to a timely review of his 

convictions. AOEs (13) and (14) were also raised pursuant to Grostefon, 12 M.J. 431.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

6

II. DISCUSSION

A. This Court May Disregard Waiver under Article 66

1. Article 66 grants service courts of criminal appeals broad and unique 

powers

Military appellate courts owe their existence to the controversy over how 

courts-martial were conducted after a World War I-era riot in Houston, 

Texas.10 The courts-martial had significant legal problems and were infused 

with racial bias. Thirteen of the accused were executed just two days after 

their sentence was announced. No entity outside the local command reviewed 

the findings or sentence of any case. The Boards of Review were created in 

the aftermath of these cases specifically to provide review and protect the 

rights of the accused. 

After World War II, Congress created the UCMJ owing to widespread displeasure over court-martial abuses during the war.

11 One Board of Review, 

after World War II, “set aside or reduced about 85 percent of the 27,500 

general court-martial convictions it reviewed.”12 From their inception and in 

their re-creation, military appellate courts have been tasked with safeguarding the rights of servicemembers who are subject to military discipline.

Article 66 states that service criminal courts of appeal [CCA] “may affirm 

only such findings of guilty, and the sentence or amount of the sentence, as 

the Court finds correct in law and fact and determines, on the basis of the 

entire record, should be approved.”13 This “factual sufficiency” power has 

10 See Lisa M. Schenck, Symposium: “Just the Facts, Ma’am”: How Military Appellate Courts Rely on Factual Sufficiency Review to overturn Sexual Assault Cases 

When Victims Are “Incapacitated,” 45 Sw L. Rev. 523 at 527 (2016) (citing Fred L. 

Borch III, The Largest Murder Trial in the History of the United States: The Houston 

Riots Courts-Martial of 1917, Army Law. 1-3 (2011)).

11 See, e.g., Felix E. Larkin, Professor Edmund M. Morgan and the Drafting of the 

Uniform Code, 28 Mil. L. Rev. 7 (Apr. 1965); Arthur John Keefe & Morton Moskin, 

Codified Military Injustice, 35 Cornell L.Q. 151, 160 (1950).

12 See Schenck, 45 Sw. L. Rev. at 529 (citing Calley v. Callaway, 519 F.2d 184, 

196 n.15 (5th Cir. 1975) (citing William T. Generous, Swords and Scales: The Development of the Uniform Code of Military Justice 14-15, 17 (1973); Note: Collateral 

Attack on Courts-Martial in the Federal Courts, 57 Yale L.J. 483, 488 (1948)).

13 UCMJ art. 66(d).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

7

been the subject of much discussion and is nearly unique14 to the military 

justice system. The CCAs have been called “something like the proverbial 

800-pound gorilla when it comes to their ability to protect an accused.”15 The 

Court of Appeals for the Armed Forces has acknowledged the “awesome, 

plenary de novo power of review under Article 66”16 and has commented that 

a “clearer carte blanche to do justice would be difficult to express.”17

2. United States v. Chin and its use by service courts of criminal appeals

In 2016, a divided CAAF issued its opinion in United States v. Chin.

18 In 

Chin, the appellant pleaded guilty at a general court-martial consisting of a 

military judge alone to six specifications of orders violations, seven specifications of dereliction of duty concerning handling of classified materials, five 

specifications concerning unauthorized retention of classified materials, and 

one specification of larceny of military property. The military judge accepted 

the appellant’s pleas, found him guilty, and sentenced him to twelve months 

of confinement, reduction to pay-grade E-2, and a bad-conduct discharge. The 

convening authority [CA] approved just ten months of confinement, but 

otherwise approved the adjudged sentence.

Under Article 66, Chin was statutorily entitled to an appeal to the Air 

Force Court of Criminal Appeals [AFCCA]. His pretrial agreement [PTA] 

“waived all waivable motions.”19 At trial, the military judge determined that 

“multiplicity motions” were part of that clause in the PTA and that Chin 

“would have raised a multiplicity motion”20 but for that clause.

The Air Force Court of Criminal Appeals, drawing on various CAAF precedent21 and a persuasive opinion from the Army Court of Criminal Appeals 

14 The Appellate Division of the Supreme Court of New York, an intermediate 

appellate court, also possesses factual sufficiency review. 

15 United States v. Parker, 36 M.J. 269, 271 (C.A.A.F. 1993).

16 Id. (quoting United States v. Cole, 31 M.J. 270, 272 (C.M.A.1990)).

17 Id. (quoting United States v. Claxton, 32 M.J. 159, 162 (C.M.A. 1991)).

18 75 M.J. 220.

19 Id. at 221.

20 Id.

21 United States v. Chin, No. ACM 38452, 2015 CCA LEXIS 241 at *11-12 (A.F. 

Ct. Crim. Ap. 12 Jun 2015) (unpublished). AFCCA cited to United States v. Claxton, 

32 M.J. 159, 162 (C.M.A. 1991) (holding that a CCA need not apply waiver or plain 
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

8

[ACCA],22 ignored Chin’s waiver and set aside three of the specifications as 

unreasonably multiplied because his criminality was grossly exaggerated. 

The Air Force Court of Criminal Appeals reassessed and affirmed the sentence. It did so based on its reading of Article 66’s grant of a “plenary, de novo 

power of review.”23

The Court of Appeals for the Armed Forces affirmed. Judge Ryan, writing 

for the majority, held that Article 66’s statutory command to the service 

criminal courts of appeals [CCAs] was to “assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error.”24

While an accused could agree to “waive all waivable motions” and bind 

himself to not raise such a waived issue on appeal, this agreement could not 

work an estoppel on the CCA’s statutory mandate to review the case and 

approve only the findings and sentence that “should be approved,” unless an 

accused also waived appellate review altogether. Then-Judge Stucky dissented, arguing that this was “no standard at all” and amounted to “no more than

the uncertain measure of the conscience of the particular judges presiding 

over the case—in other words, pure equity.”25

Since Chin, CCAs have invoked it many dozens of times,26 though by no 

means in a manner that overwhelmingly benefitted appellants. Oftentimes, 

CCAs have invoked Chin to disregard a waiver, discuss a legal issue that it 

deemed important to the case, and find no error, or find an error but no 

prejudice. This would seem to be in accord with the paternalistic nature of 

the CCAs and their secondary duty of providing decision-based guidance to

military judges, trial counsel, trial defense counsel, staff judge advocates, 

convening authorities, and others working in the field of military justice. 

error review in interest of justice); Cole, 31 M.J. at 272 (recognizing CCAs’ “awesome, 

plenary, de novo power of review”).

22 Id. at *10-11. The Air Force Court of Criminal Appeals cited United States v. 

Rivera, No. 20130397, 2014 CCA LEXIS 893 at *4 (A. Ct. Crim. App. Dec. 15, 2014) 

(unpublished). 

23 Id. at *11.

24 Chin, 75 M.J. at 223. Cf. United States v. Tardiff, 57 M.J. 219, 223 (C.A.A.F. 

2002) (finding Article 59(a) intended by Congress to prevent CCAs from reversals for 

minor technical errors). 

25 Id. at 226 (Stucky, J., dissenting).

26 Including this opinion, Chin has been cited by CCAs eighty-one times, nine of 

which in published opinions.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

9

Recently in United States v. Tyndall,

27 this Court invoked Chin to correct 

what we considered to be an obvious, albeit relatively minor, error. The 

appellant was entitled to an additional three days of pretrial confinement 

credit. He had been confined by civilian authorities for three days for the 

same offense of which he was convicted at court-martial (and also later 

placed in military pretrial confinement for that offense). The trial counsel 

missed it. The military judge missed it. And so did the TDC. When the TDC 

agreed with the trial counsel’s incorrect calculation of pretrial confinement 

credit, the appellant stayed silent and did not contradict him. Owing to the 

“clear and ample evidence that [the appellant] was entitled to three days of 

pretrial confinement credit,” we declined to allow an “oversight or misapplication of the law” to override the appellant’s waiver or undermine our 

“unique mandate under Article 66.”28

There has been little structure or consistency among CCA decisions on 

how to wield Chin or what limitations it might contain. In United States v. 

Conley,

29 ACCA admitted that it read Chin narrowly and focused on how an 

appellant who had specifically waived an issue might later ask a CCA for

review and how a CCA should proceed. But ACCA also compellingly discussed its “framework for how [it] approach[es] and analyze[s] whether to 

exercise [its] broad authority under Article 66.”30 The Army court described 

Article 66 as a “safety valve of last resort.”31 The court’s language is worth 

quoting in full:

So while our authority under Article 66 is in no way limited 

to certain issues, on a practical level the exercise of this unique 

power is more likely to be found in certain military circumstances which—while not technically amounting to legal error—have disadvantaged the accused in a manner that the 

CCA determines needs correction or has resulted in a courtmartial where the perception of unfairness in the trial may 

have the actual effect of undermining good order and discipline. If on a practical level we are more likely to exercise our 

27 No. 201900096, 2019 CCA LEXIS 476 (N-M. Ct. Crim. App. Nov. 27, 2019) (unpublished).

28 Id. at *10.

29 78 M.J. 747 (A. Ct. Crim. App. 2019).

30 Id. at 751. 

31 Id. at 752.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

10

“should be approved” power in circumstances that are, at the 

source, born from uniquely military origins, we would benefit 

from the parties briefing the issue with this in mind.32

We agree that, to the extent that Chin does have any limitations, CCAs

would appear to be on the most solid ground when overlooking waiver to 

address issues needing correction that originate from something uniquely

military in nature and that, left uncorrected, may undermine good order and 

discipline or the perceived fairness of a court-martial.

The statutory right to IMC is uniquely military in origin. We recognize 

the very real limitation a military accused has in understanding the IMC 

process, aided only by his TDC. We also recognize the trepidation an accused 

may have in disagreeing with his TDC—who is charged with defending him—

in open court in front of a military judge who will preside over his courtmartial and may even be the factfinder and sentencing authority.

In short, Chin and Article 66 allow a CCA to disregard a waiver in order 

to rectify a few specifications for unreasonable multiplication of charges or to 

correct an error regarding 72 hours of unlawful pretrial confinement. We 

believe its authority must also necessarily extend to determining whether an 

appellant’s TDC was ineffective and caused a deprivation of his statutory 

right to IMC.

We also acknowledge the possibility for post-trial gamesmanship where 

an appellant, now convicted, submits a sworn declaration that—perhaps not 

entirely accurately—alleges his TDC failed to forward IMC requests in just 

the same manner as in this case, in the hopes that he will receive a windfall 

of a second bite at the apple. The sky will not fall. There are competing 

declarations from the TDC, TDC records of conversations, procedures where

defense counsel offices can require clients to complete forms indicating a lack 

of desire for IMC, and post-trial DuBay hearings for additional factfinding. 

On the contrary, our decision to disregard this waiver and consider the issue 

is intended to highlight the importance of the right to an IMC and the importance for TDC to document and, above all, scrupulously honor an accused’s request for IMC by forwarding it in the appropriate manner.

3. The doctrines of res judicata and collateral estoppel

The assertion of error we are addressing in this opinion—whether Appellant’s TDC was ineffective for failing to properly submit his IMC request—

32 Id. (emphasis in original).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

11

was not an issue decided by our superior court. Thus, the related doctrines of 

res judicata [claim preclusion] and collateral estoppel [issue preclusion] do 

not prevent our review of this issue. The general rule of res judicata:

applies to repetitious suits involving the same cause of action. 

It rests upon considerations of economy of judicial time and 

public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause 

of action, the parties to the suit and their privies are thereafter 

bound.

33

Collateral estoppel—though most often in a criminal context involving 

double jeopardy—“means simply that when an issue of ultimate fact has once 

been determined by a valid and final judgment, that issue cannot be litigated 

between the same parties in any future lawsuit.”34

Based on Chin and the text of Article 66, we invoke our statutory authority to disregard Appellant’s in-court waiver of his right to IMC. As a matter of 

law, CAAF has spoken on Appellant’s waiver. It is a waiver. We have no 

authority to conclude otherwise, and we do not do so here. CAAF did not, 

however, address whether Appellant’s TDC committed IAC. Under its Article 

67 statutory authority, once CAAF found a waiver on IMC, the underlying 

IAC issue was moot, but not necessarily resolved. CAAF did not proceed to 

resolve the underlying IAC issue and bar this Court from resolving the issue, 

or bar Appellant from asking this Court to resolve it.

Under Article 66, we do have authority to disregard the waiver, whether 

we initially decided it was a waiver upon Appellant’s original review with 

this Court, or whether CAAF has held that as a matter of law it is a waiver. 

Article 66’s authority for a CCA to disregard waiver does not distinguish 

whether the waiver determination is organic or from above.

The doctrines of res judicata and collateral estoppel are limited here to 

our complete acquiescence to CAAF’s legal holding that Appellant’s in-court 

colloquy effected a knowing, intelligent waiver. We find it axiomatic that 

CAAF does not have the authority to remove a portion of Article 66—the 

power to disregard waiver—which it does not itself possess in its own statu33 Commissioner v. Sunnen, 33 U.S. 591, 597 (1948) (quoted and emphasis added 

in United States v. Doughty, 34 C.M.R. 320, 326-27 (C.M.A. 1964)).

34 United States v. Hicks, 24 M.J. 3, 7 (C.M.A. 1987) (citing and quoting Ashe v. 

Swenson, 397 U.S. 436, 443 (1970)) (emphasis in the original).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

12

tory grant of authority under Article 67. Rather than in any way question our 

superior court’s legal holding, we merely reserve for ourselves the authority 

that Congress has bestowed upon us.

Likewise, the doctrines of res judicata and collateral estoppel do not prohibit us from disregarding the waiver because we did not discuss Chin in our 

initial 2018 opinion in this matter. In our first review of this case we did not 

explicitly invoke our authority to disregard the waiver. Instead, as CAAF 

made clear, we incorrectly decided as a matter of law that Appellant’s waiver 

was invalid because it was not a knowing and intelligent waiver and it was 

“based on the fallacy of [his] belief.”35 “To the extent that [Appellant] waived 

his right to request CPT TN as an IMC, he relied on an erroneous representation of CPT TN’s unavailability.”36 Because this Court has never made a final 

judgment or holding on the merits of whether Appellant’s waiver should be 

disregarded under Chin, there is nothing for this Court to be bound by in that 

respect, either. 

With that, we turn to whether TDC was ineffective in failing to forward 

Appellant’s IMC request.

B. Appellant’s TDC was Deficient in Failing to Submit Appellant’s 

Request for CPT TN as IMC

1. Standard of review and the law

We review claims of ineffective assistance of counsel de novo.37 In Strickland v. Washington, the Supreme Court laid out the test that guides our 

analysis. In order to prevail on such a claim, “an appellant must demonstrate 

both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.”38 The appellant bears the “burden of establishing the truth of factual matters relevant to the claim.”39 Only after an appellant has met his burden and has demonstrated both deficiency and prejudice 

35 United States v. Cooper, No. 201500039, 2018 CCA LEXIS 114 at *37 (N-M. Ct. 

Crim. Ap. Mar. 7, 2018) (unpublished).

36 Id. at *36.

37 United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018).

38 United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 

U.S. at 687).

39 Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008), aff’d, 556 U.S. 904 

(2009).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

13

can we find in the appellant’s favor on an ineffective assistance of counsel 

claim.

2. The TDC was deficient in failing to route the IMC request

We agree with the DuBay military judge that the TDC failed to properly 

route Appellant’s IMC request for CPT TN. We review a military judge’s 

findings of fact at DuBay hearings under a clearly erroneous standard and 

the conclusions of law de novo.

40 Though the DuBay military judge found both 

the TDC and the IMC “credible,” he found that certain prior consistent 

statements in Appellant’s social media made a circumstantial case that he

was under the impression he could not have CPT TN as his IMC. We see 

nothing in the DuBay hearing that would cause us to question this finding of 

fact.41

When reviewing an appellant’s claim that his TDC’s performance was ineffective, there is a “strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.”42 This presumption 

must be rebutted by showing that a specific error, or errors, were “unreasonable under prevailing professional norms.”43

A military accused has a statutory right to IMC under Article 38, UCMJ.

Rule for Courts-Martial [R.C.M.] 506 delineates the procedure for making an 

IMC request and authorizes service Secretaries to prescribe more detailed 

procedures. In the Navy, pursuant to the Naval Legal Service Command 

Manual, TDC “shall ensure IMC requests are forwarded per R.C.M. 506(b)

. . . . All IMC requests will be submitted in writing. IMC requests for courtsmartial will be routed via the trial counsel to the convening authority.”44

40 United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).

41 United States v. French, 38 M.J. 420, 425 (C.A.A.F. 1993) (citing Parts and 

Electric Motors Inc. v. Sterling Electric, Inc. 866 F.2 228, 233 (7th Cir. 1988) (finding 

that under the clearly erroneous standard, it must be “more than just maybe or 

probably wrong; it must strike us as wrong with the force of a five-week-old, unrefrigerated dead fish”).

42 Strickland, 466 U.S. at 689.

43 United States v. Scott, 24 M.J. 186, 188 (C.M.A. 1987) (citing United States v. 

Cronic, 466 U.S. 648 (1984)).

44 Dep’t of the Navy, Commander Naval Legal Service Command Instr. 5800.1G, 

Naval Legal Service Command (NLSC) Manual, para. 1006.a. (Feb. 25, 2013) (emphasis added).
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

14

Because CPT TN was not among those designated as “not reasonably 

available” [trial counsel, general and flag officers, military judges, et al.] 

under R.C.M. 506(b)(2), the CA was obligated to forward such an IMC request to CPT TN’s commander, who would then determine whether CPT TN

was “reasonably available” to act as Appellant’s IMC. But none of the timehonored procedures in this well-known statutory right can be put into motion—at least in the context of TDC’s fulfillment of her duties to her client—

unless she takes the simple administrative step of routing the IMC request.45

We find the oversight to not route the IMC request for formal action as 

required was “unreasonable under prevailing professional norms.”46 As such, 

the TDC’s performance was deficient.

3. Captain TN was reasonably available

The DuBay military judge also made a finding of fact and conclusion of 

law that CPT TN was reasonably available. Again, we review the findings of 

fact under an abuse of discretion standard and will only overturn them if 

they are clearly erroneous or unsupported by the record.47 We review the 

conclusions of law de novo.48

Under the relevant Army Regulation [AR] for all National Guard attorneys executing orders under Title 10 [AR 27-10], CPT TN was presumed 

“reasonably available” unless he was specifically included in a list of those 

deemed unavailable, similar to R.C.M. 506. He was not included on the 

unavailable list.

As the DuBay judge found, the individual who would have made the 

availability determination was a Lieutenant Colonel from the California 

Army National Guard. His affidavit for the DuBay hearing indicated he 

would have considered CPT TN available and would have granted the IMC

request. Captain TN’s legal chain of command at JTF-GTMO sharply disagreed with this assessment, arguing that it, and not the California National 

Guard commander, would have made the determination of CPT TN’s availability. And the JTF-GTMO determination would have been that CPT TN’s 

Freedom of Information Act duties would have been too cumbersome to allow 

45 The Rule also allows for a military accused to submit an IMC request on his 

own behalf.

46 Scott, 24 M.J. at 188 (citing Cronic, 466 U.S. 648).

47 Wean, 45 M.J. at 463.

48 Id.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

15

for him to be available as IMC. However, the record also indicates that 

CPT TN rotated out of JTF-GTMO, but remained on active duty, about one 

month prior to Appellant’s court-martial. We find no abuse of discretion in 

the DuBay military judge’s findings of fact and conclusions of law concerning 

CPT TN’s availability. Moreover, CPT TN already had an attorney-client 

relationship with Appellant concerning the alleged sexual assault for which 

he was being court-martialed. We concur that, if forwarded properly, the IMC 

request would have been approved.

Having found deficiency on the part of the TDC in failing to route an IMC 

request for a reasonably available counsel who would have been approved, we

now turn to whether Appellant was prejudiced by the denial of his right to an 

IMC.

C. Appellant Was Prejudiced by Being Deprived of His Statutory 

Right to IMC 

1. This violation is statutory rather than constitutional

The right to IMC is found within Article 38, UCMJ. As we pointed out in 

Cooper I, this right predates the UCMJ and entitles a military accused to the 

right to a “military counsel of his own selection if that counsel is reasonably 

available.”49 As we discussed above, R.C.M. 506 and various service regulations deem whether a military counsel is per se unavailable, by what standards a military counsel is available, and who makes that determination.

The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecutions, the accused shall have the right . . . to have the Assistance 

of Counsel for his defence.”50 When combined with the Constitution’s Due 

Process Clause, several facets of criminal prosecutions emerge, including (1) 

one where assistance of counsel has been denied entirely; (2) where an 

accused who does not require appointed counsel has been denied his “choice 

of counsel”; and (3) where an accused has been denied the “effective assistance of counsel.” The first two of these constitutional violations do not 

require a case-by-case, and thus wholly speculative, prejudice analysis. This 

makes sense because the presumption of regularity and faithfulness to the 

Sixth Amendment’s guarantee should not be applied when an accused has 

had either no lawyer for his trial or has somehow been prevented from having 

49 Cooper, 2018 CCA LEXIS 114 at *14-15 (citing United States v. Gnibus, 21 M.J. 

1, 5-7 (C.M.A. 1985)).

50 U.S. CONST. amend. VI, cl. 7.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

16

the counsel he chooses (indigence aside) to defend him. As we touched on 

above, the analysis is different for IAC because appellate courts have a record 

to review and can consider the errors, weigh them against prevailing standards of minimum competence of counsel, and consider the overall impact on 

the trial in light of the constitutional right. We mention all this to state that, 

despite the similarity in considering the prejudice to an accused in the denial 

of the Sixth Amendment right to “choice of counsel” and the prejudice to an 

accused in the denial of the statutory right to IMC, they are different interests being violated. One is a constitutional deprivation of Due Process that 

violates an accused’s Sixth Amendment right to counsel and is a structural 

error; the other is statutory. 

In United States v. Gonzalez-Lopez,

51 the Supreme Court addressed the 

right to counsel of choice. It held that when a non-indigent accused who did 

not need assignment of counsel was prohibited from being represented by the 

attorney he wanted, this worked a “violation that was not subject to harmless-error review.”52 Such a deprivation of a fundamental right was a “structural defect”53 possessing “consequences that are necessarily unquantifiable

and indeterminate.”54 The Court added that any harmless-error analysis “in 

such a context would be a speculative inquiry into what might have occurred 

in an alternate universe.”55

But the violation of the statutory right to IMC is reviewed differently

from a structural defect such as the deprivation of choice of counsel or other 

constitutional errors. Rather than the “harmless beyond a reasonable doubt” 

standard used for constitutional errors, we test for prejudice under Article 

59(a), UCMJ, and consider whether Appellant’s substantial rights were 

materially prejudiced.56 However, in cases alleging violation of an appellant’s 

right to IMC, depending on the circumstances, courts have sometimes declined to test for prejudice and not speculated on the amount of prejudice to 

the proceeding.

51 548 U.S. 140, 144 (2006).

52 Id. at 143-44.

53 Id. at 148.

54 Id. at 150 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993)).

55 Id.

56 United States v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019) (holding that 

material prejudice under Art. 59 must be understood by reference to nature of 

violated right). 
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

17

2. Military courts may presume prejudice when IMC is either not properly 

forwarded or is improperly denied

Military courts have long been reviewing cases where the denial of IMC is 

alleged to have materially prejudiced an appellant’s substantial rights. In 

1967, in United States v. Hartfield,

57 CAAF’s predecessor court, the Court of 

Military Appeals [CMA], set aside the conviction of an appellant who had 

pleaded guilty to “a number of offenses.”58 The appellant requested a particular legal officer for his IMC who also happened to be a member of the CA’s 

staff. Because the requested IMC was a member of the CA’s staff, the CA’s 

staff legal officer determined for himself—as a “routine action”—that the 

requested IMC was not reasonably available. He did not forward the request

to the CA. The CMA set aside the findings and sentence because a decision on

an IMC request is to be made, personally, by the CA, and the appellant’s 

inaction at trial concerning his IMC was predicated on the false premise that 

the CA had personally denied his request. Citing to a 1942 Supreme Court 

case, Glasser v. United States,

59 the CMA held that “the right to have the 

assistance of counsel is too fundamental and absolute to allow courts to 

indulge in nice calculations as to the amount of prejudice arising from its 

denial.”60

In United States v. Beatty61—decided some 20 years after Hartfield—the

CMA again set aside the findings and sentence when an IMC request was 

improperly denied. In Beatty, the appellant had an IMC for his first trial, 

which resulted in a guilty plea. When the CA found the appellant was improvident to his pleas, a re-hearing was ordered, this time with additional 

charges. When the appellant asked the military judge for a new IMC for the 

new trial, his request was denied because he was only entitled to a single 

IMC. The appellant was only allowed his original IMC—now detailed as his 

defense counsel—in the new trial with the new charges. The appellant 

elected to defend himself and his counsel remained with him at counsel table. 

However, during the re-trial, his detailed counsel “conducted the defense.”62

57 38 C.M.R. 67 (C.M.A. 1967).

58 Id. at 67.

59 315 U.S. 60 (1942).

60 Hartfield, 38 C.M.R. at 68 (citing Glasser, 315 U.S. at 76).

61 25 M.J. 311 (C.M.A. 1987).

62 Id. at 314.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

18

The CMA held that the appellant was entitled to IMC for the additional 

charges on remand. While the procedural aspects were not as clear-cut as 

Hartfield, the CMA, citing a case from the U.S. Court of Appeals for the Sixth 

Circuit, held that “deprivation of a statutory right to counsel cannot be 

analyzed in terms of specific prejudice but, instead, mandates automatic 

reversal.”63

In United States v. Allred,

64 we set aside the findings and sentence when 

an appellant’s IMC request was improperly denied. The appellant had charges preferred against him and was assigned a defense counsel. The charges 

were withdrawn when the appellant was hospitalized. When he was released 

from the hospital, the CA appointed a new defense counsel because the 

original counsel was scheduled to transfer out of the area. The appellant 

requested his original defense counsel as IMC, but the commanding officer 

denied it because the appellant did not have an existing attorney-client 

relationship and the counsel was not reasonably available. We found that 

“defense counsel are not fungible items” and that the attorney-client relationship was improperly severed. We declined to engage in “nice calculations to 

the existence of prejudice”65 when an attorney-client relationship is severed 

without good cause and “presumed prejudice arising from the denial of his 

statutory right to counsel of his own selection. Arts. 38(b)(3)(B) and 59(a), 

UCMJ.”66

But more recently, we declined to presume prejudice for the alleged deprivation of IMC. In a 2013 unpublished opinion in United States v. Johnson,

67

the appellant made some meritless allegations that he was denied IMC. 

While the appellant had some initial conversation with his TDC about the 

possibility of requesting IMC, we eventually found that this, “at best, reflect[ed] a miscommunication.”68 We conducted IAC analysis under Strick63 Id. at 316 (citing Wilson v. Mintzes, 761 F.2d 275 (6th Cir. 1985) (on remand 

from Supreme Court, holding petitioner was not required to demonstrate Strickland

prejudice from District Court judge’s interference with Sixth Amendment choice of 

counsel right)). 

64 50 M.J. 795, 801 (N-N. Ct. Crim. App. 1999).

65 Id. (quoting United States v. Baca, 27 M.J. 110, 119 (C.M.A. 1988)).

66 Id. (citing UCMJ arts. 38(b)(3)(B), 59(a)).

67 No. 201200379, 2013 CCA LEXIS 784 (N-M. Ct. Crim. App. Sept. 30, 2013) 

(unpublished).

68 Id. at *9.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

19

land and found no prejudice. However, we did find the “scenario [w]as testable for prejudice.”69 We did so because the military judge found both counsel 

were competent, and our review of the record convinced us the TDC “performed competently in the face of overwhelming evidence of the appellant’s 

guilt.”70

In a footnote in Johnson, we recognized that “[u]nder circumstances distinguishable from this case, military courts sometimes do not test improper 

denial of an IMC request for prejudice” and cited to Hartfield, but cautioned 

that Hartfield quoted the Supreme Court in Glasser, which pre-dated Strickland. But then we cited Allred—a post-Strickland case—recognizing that it 

also did not test for prejudice. We found that Johnson and Allred were 

distinguishable because the latter was a wrongful interference with an 

existing attorney-client relationship that expressed itself as a denial of IMC.

3. We decline to test for prejudice

With our precedent and that of our superior courts in mind, we decline to 

test for prejudice after finding Appellant’s statutory right to IMC was violated. While we have elected to test for prejudice under Strickland in one case, 

in many other cases—some occurring after Strickland—we have presumed 

prejudice. One factor that weighs heavily on whether to presume prejudice is 

whether an existing attorney-client relationship was severed or effectively 

severed. We also consider the overall strength of the Government’s case, the 

nature of who denied the IMC request, and how it occurred. 

The totality of the circumstances here include (1) the existence of an attorney-client relationship by a counsel who was reasonably available and

wanted to represent Appellant at his court-martial; (2) the fact that Appellant was effectively prevented from pursuing his IMC due to a deficiency by 

his own TDC; and (3) a trial in which the Government’s case was not overwhelming, but appeared to be the kind of “he said-she said” sexual assault 

case where the difference between conviction and acquittal often lies in the 

margin. Under these circumstances, we find that “nice calculations to the 

69 Id. at *12.

70 Id. at *13. The appellant had been charged and convicted, contrary to his pleas, 

of stealing funds from the Third and Second Class Petty Officers Association aboard 

his ship, making a false official statement to an investigator about the theft, and 

obstructing justice by modifying an electronic record to make it appear the stolen 

funds had been transferred to another private organization onboard the same ship.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

20

existence of prejudice”71 are inappropriate for this manner of violation of 

Appellant’s statutory right to IMC.

Given this presumption of prejudice, which the Government has not overcome, we conclude the second prong of Strickland is satisfied. The IMC 

request was not routed. It should have been. Had it been routed, it would 

have been approved and Appellant would have continued his pre-existing 

attorney-client relationship with CPT TN as his IMC. Under these circumstances, we find a “reasonable probability . . . sufficient to undermine confidence in the outcome.”72

Assuming arguendo that we must not presume prejudice under these circumstances, we would defer to our prior decision in Cooper I. Rather than 

rehash what we said in detail, it suffices to say that the government was able 

to provide resources in Cuba to investigate the sexual assault, but was 

unable to provide resources for Appellant’s defense. Appellant terminated an 

interview with NCIS to seek counsel. The Navy did not formally detail him 

TDC for five months, even after he sought assistance, but was turned away 

from the nearest Region Legal Service Office [RLSO] and also the Navy’s 

regional Defense Service Office, Southeast. In the end, it was the government’s deficiency in timely detailing TDC for Appellant that spurred his 

formation of an attorney-client relationship with CPT TN. And then his TDC, 

operating under the detailing authority of the government, frustrated the 

continuation of that same relationship. While we still believe it is “folly of 

trying to compare the legal representation an accused might have received 

with desired counsel to the representation the accused actually received,”73

we also still believe that Appellant suffered material prejudice in both the 

preparatory stages of his court-martial and at trial when his IMC request 

was never drafted and forwarded to CPT TN’s chain-of-command for consideration and approval.

D. Legal and Factual Sufficiency Review

In 2018, this Court set aside the convictions and sentence in Appellant’s 

case and ordered the case remanded for a new trial. In that opinion, despite 

remanding for a new trial, we elected to discuss the factual sufficiency of 

Appellant’s convictions. We should not have done this. Given that we are 

71 Allred ̧ 50 M.J. at 801.

72 Strickland, 466 U.S. at 694. 

73 Cooper, 2018 CCA LEXIS 114 at *44.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

21

again remanding the case for a new trial, we will decline to discuss the legal 

and factual sufficiency of Appellant’s convictions.74

Article 66, UCMJ, authorizes us to approve only findings that are correct 

in law and fact. This requires a somewhat bifurcated review of a courtmartial. We look first to whether the convictions are legally and factually 

sufficient. If they are, then we evaluate any alleged legal errors to determine 

whether there is an error and, if so, what an appropriate remedy might be.

Any case that is remanded for a new trial must by implication have its 

findings—on the face of a record containing some legal errors worthy of a 

remand—be legally and factually sufficient. If the findings were not legally 

and factually sufficient, we would be obligated to set them aside and dismiss 

them. Double jeopardy would bar a rehearing as to those legally or factually 

insufficient findings, and a remand for those particular findings would be a 

deprivation of an appellant’s constitutional rights.75

Thus, the best practice for a service court of criminal appeals is to simply 

not comment on the legal and factual sufficiency of findings in a case where a 

remand is ordered. The first reason is practical. The record is flawed enough 

in some way for a remand, so evaluating the legal and factual sufficiency is

somewhat distorted through the prism of the legal error. The second reason is 

fairness to an appellant. His parting gift from a CCA should not be an evaluation by three [or more] appellate military judges of the strengths and weakness of the Government’s case against him. We ought to remain silent. Here, 

we choose to remain silent. Appellant and the Government must presume we 

find the convictions legally and factually sufficient, but we only do so on the 

face of a record where Appellant’s substantial rights were materially prejudiced. Had we found otherwise, we would be obligated to say so and to take 

appropriate action.

74 We decline to now settle the question of whether this Court is bound to review 

for factual sufficiency when a case is remanded from CAAF and the review is not 

necessary for our resolution of this case. Out of an abundance of caution, we have reexamined, de novo, the factual sufficiency of Appellant’s convictions. The result is the 

same.

75 See Conley, 78 M.J. at 751.
United States v. Cooper, NMCCA No. 201500039

Opinion of the Court

22

III. CONCLUSION

The findings and sentence are SET ASIDE AND DISMISSED and the 

record is returned to the Judge Advocate General of the Navy for remand to 

an appropriate convening authority with authority to order a rehearing.

Judge DEERWESTER concurs.
United States v. Cooper, NMCCA No. 201500039

CRISFIELD, CJE. (dissenting)

23

CRISFIELD, Chief Judge Emeritus (dissenting):

I respectfully dissent based on three concerns regarding the majority 

opinion. First, I believe that the Court of Appeals of the Armed Forces’ 

[CAAF] opinion and order remanding the case to this Court constitutes res 

judicata which estops further Article 66(c) review of the issue decided by 

CAAF. Second, I believe that the standard articulated by the majority for 

review pursuant to United States v. Chin1 is unwise. Finally, I believe that 

the factual predicate relied upon by the majority for its determination of 

prejudice is clearly contradicted by the court-martial record of trial and 

DuBay2 hearing. 

While Chin recognizes that courts of criminal appeals possess extraordinary discretion in reviewing court-martial errors notwithstanding waiver of

those errors, we ordinarily exercise that authority with no intervening 

appellate decisions. That is not the case here. This Court has already rendered a decision on the issue reviewed de novo by the majority today. More 

importantly, CAAF has reviewed this Court’s prior decision and overturned 

it, remanding the case to us with clear and specific direction regarding the 

scope of our review on remand. CAAF limited our current review to the 

assignments of error that were not addressed in our initial opinion: 

That leaves unanswered other issues the [Navy-Marine 

Corps Court of Criminal Appeals] determined were mooted by 

its decision that [Appellant] was denied his statutory right to 

[individual military counsel]. See Cooper, 2018 CCA LEXIS 

114, at *3 n.3, 2018 WL 1178847, at *1 n.3. We leave those issues for the CCA to resolve on remand.3

I cannot read CAAF’s opinion as authority for us to review, de novo, assignments of error related to Appellant’s desire for an individual military 

counsel. Those issues are now res judicata.

Secondly, I am concerned about the guidelines that the majority describes 

for when to invoke Chin. Admittedly, neither Article 66(c) nor Chin provides 

any guidance for courts of criminal appeals to use in determining when to use 

its authority to review a clearly waived issue. Therefore, I do not claim that 

the majority is legally incorrect, but simply disagree with the criteria that it 

1 75 M.J. 220 (C.A.A.F. 2016).

2 37 C.M.R. 411 (C.M.A. 1967).

3 United States v. Cooper, 78 M.J. 283, 287 (C.A.A.F. 2019).
United States v. Cooper, NMCCA No. 201500039

CRISFIELD, CJE. (dissenting)

24

uses. It states that this Court is on the safest grounds in invoking Chin when 

considering errors that “originate from something uniquely military.” It 

approvingly cites the Army Court of Criminal Appeals’ opinion in United 

States v. Conley, 78 M.J. 747 (Army Ct. Crim. App. 2019), which similarly 

articulated a narrowing criterion of whether a waived error was “born from 

uniquely military origins.” It is unclear to me why that would be an important factor. Why would a military accused need less protection from this 

Court for a universal criminal justice matter, as opposed to a uniquely 

military matter?4 Giving weight to this factor could lead to strange results. 

This Court could disregard a waiver where an appellant had been ably 

represented by detailed military counsel but denied his right to individual 

military counsel [IMC], but uphold a waiver where an appellant had been 

entirely denied his Sixth Amendment right to assistance of counsel.

I would propose we exercise our Chin authority without regard to whether 

or not the error results from a matter unique to the military. I would also 

propose that we utilize a strong presumption that a waiver will not be overridden. With that in mind here is my suggested guideline for when the NavyMarine Corps Court of Criminal Appeals should invoke Chin to find error 

notwithstanding a knowing and intelligent waiver of the issue by the appellant: The error results in a substantial injustice which has a direct and

provable prejudicial impact on a finding or sentence and which cannot be 

adequately addressed by means other than action by the court. I would further 

suggest that the injustice rise to the level that it would shock the conscience.

Admittedly, the facts of Chin itself would not pass this test. There was no 

injustice, let alone a substantial injustice, involved in Chin, merely a drafting 

issue that resulted in an unreasonable multiplication of charges. The appellant felt the issue was slight enough that he bargained it away in his pretrial 

agreement in order to get a better sentencing deal from the government. The 

error was so lacking in prejudice that the Air Force Court of Criminal Appeals provided no sentencing relief whatsoever to the appellant.

I believe that there is a value to the doctrine of waiver and that it should 

be difficult to overcome. There is a value to generally holding that if litigants 

do not raise an issue at an appropriate time, they may not be able to raise the 

4 Perhaps it should be just the opposite. Perhaps courts of criminal appeals 

should be more protective of general criminal justice issues than uniquely military 

ones because military authorities exercising court-martial powers are more likely to 

be attuned and responsive to criminal justice issues unique to our court-martial 

system, such as the requirements of good order and discipline.
United States v. Cooper, NMCCA No. 201500039

CRISFIELD, CJE. (dissenting)

25

issue later, even if they would have been victorious had they raised the issue 

in a timely manner. I also believe that there should be an articulable standard for when an appellate court is not going to enforce waiver in order to 

provide some predictability to litigants. If there is no standard for when a 

court of criminal appeals should deviate from the doctrine of waiver then 

there really is no doctrine. Therefore, this Court should articulate the standard it will use to invoke Chin and override a valid waiver. I applaud the 

majority for articulating a standard, but I feel that we could do better.

After invoking Chin, the majority reexamines whether Appellant was denied his statutory right to IMC, but their analysis is exactly the same as it 

would be had Appellant not waived the issue. There is no analysis regarding 

what it is about this particular case that requires our disregard of Appellant’s 

waiver in order for us to fulfill our duty under Article 66(c). That is the 

missing link that requires elucidation and poses potential problems for 

appellants, trial and defense counsel, and even the judges of the Court of 

Appeals for the Armed Forces. Unfettered discretion at the courts of criminal 

appeals injects uncertainty about the binding effect of waivers at the trial 

level. How can the government know if it will get a lasting benefit from a 

waiver provision in a plea agreement if the CCA is free to disregard the 

waiver on appeal? That kind of uncertainty will tend to lower the value of 

such waivers and reduce an accused’s bargaining power when seeking a deal. 

It also poses problems for CAAF judges who may justifiably feel that their 

holdings are entitled to enforcement by the CCAs. If a CCA can side-step 

CAAF’s finding of waiver by the mere incantation of Chin, without providing 

any explanation of what extraordinary circumstance warrants its consideration of the waived issue, then CAAF is likely to re-look at Chin, most likely 

with a view to more explicitly describing Article 66(c)’s limits. 

Finally, I believe that contrary to the DuBay judge and majority’s finding 

of fact, the record clearly shows that Captain [CPT] TN would not have been 

determined to be reasonably available as an IMC had such a request been 

submitted. This is a critical issue because if the IMC request would have 

been denied, then there is no possible prejudice to Appellant and the assignment of error is meritless. 

The majority holds that the DuBay judge did not abuse his discretion in 

finding that CPT TN’s command for IMC purposes was the California National Guard. That is the appropriate standard when we review a military 

judge’s findings of fact.5 However, I believe that the record clearly establishes 

5 See United States v. Wean, 45 M.J. 461, 463 (C.A.A.F. 1997).
United States v. Cooper, NMCCA No. 201500039

CRISFIELD, CJE. (dissenting)

26

that CPT TN’s command for IMC purposes while deployed to Guantanamo 

Bay was Joint Task Force-Guantanamo Bay [JTF-GTMO] and that the 

DuBay judge abused his discretion in reaching the opposite finding. Appellant’s Title 10 activation orders administratively assigned him to the 40th

Infantry Division Headquarters Support Company, Forward, but the command that he was working for, and who had the authority to give him day-today direction and tasking, was clearly JTF-GTMO.

CPT TN submitted a declaration in which he stated:

I was deployed to Joint Task Force Guantanamo Bay (JTFGTMO) in support of Operation Enduring Freedom from November 19, 2013 through August 20, 2014. . . . While assigned 

to JTF-GTMO, I was the Deputy of Administrative Law in the 

Staff Judge Advocate’s office. My responsibilities also included 

being the Freedom of Information Act (FOIA) Action Officer, 

Chief of JTF Legal Assistance Office, and Officer in Charge 

(OIC) of the International Committee of the Red Cross (ICRC) 

Detainee Phone Call Program.6

These positions were all within the JTF-GTMO command structure. 

Captain TN did not say a word in his declaration, or anywhere else on the 

record, about any duties or positions he held in the headquarters support 

company. That company existed to provide administrative support and an 

administrative chain of command to 40th Infantry Division soldiers assigned 

to duty at JTF-GTMO. There is no evidence in the record that CPT TN 

occupied any billet, possessed any title, or performed any duties or functions 

whatsoever in the headquarters support company. It is clear that as between 

JTF-GTMO and the Army headquarters support company, the JTF had the 

overwhelming interest in CPT TN’s tasking during his deployment to Guantanamo Bay.

The commander of the headquarters support company during CPT TN’s 

deployment to JTF-GTMO from November 2013 to August 2014 declared that 

if he had been presented with an IMC request for CPT TN, he would have 

approved it.7 The declaration provides no evidence that CPT TN performed 

any duties within the company. On the other hand, the staff judge advocate 

for JTF-GTMO, CPT TN’s supervisory judge advocate, declared that if he had 

been presented with an IMC request he would have recommended denial to 

6 App. Ex. XXII-A at 1-2.

7 App. Ex. IV-A.
United States v. Cooper, NMCCA No. 201500039

CRISFIELD, CJE. (dissenting)

27

the JTF commander.8 The staff judge advocate notes that CPT TN worked as 

a Freedom of Information Act [FOIA] attorney for JTF-GTMO and that this 

was an important and time-consuming duty at the joint task force. It is 

hardly surprising that the task force would not have wanted to release 

CPT TN from his duties given the criticality of FOIA responses to an organization under as much public scrutiny as JTF-GTMO. Appellant, who worked 

with CPT TN on FOIA responses, himself noted the importance of this duty 

and the heavy workload that it entailed. Appellant testified that he and CPT 

TN often worked twelve to fourteen-hour shifts together.

9

The importance of the requested counsel’s duties and their workload are 

fair considerations by a commander who needs to make a reasonable availability determination, even when that counsel has a prior attorney-client 

relationship with the accused. Had an IMC request been made for CPT TN 

the governing service regulation would have been Army Regulation 27-10. 

Paragraph 5-7 of that regulation permits a commander making a reasonable 

availability determination to consider “the requested counsel’s duty position,

responsibilities, and workload.”10

The fact that CPT TN transferred from his assignment with JTF-GTMO 

and returned to the California National Guard one month prior to the start of 

Appellant’s trial and that the California National Guard would have approved the IMC request at that time is irrelevant to this issue. Had Appellant’s military defense counsel submitted an IMC request when the majority 

says she should have, CPT TN’s commander, the commander of JTF-GTMO, 

would have been the one to make the availability decision.11 All evidence 

8 App. Ex. XXXVII-A.

9 DuBay Hearing R. at 77.

10 Dep’t of the Army, Reg. 27-10, Legal Services: Military Justice, para. 5-7.d.(1)

(May 11, 2016). The Army Regulation goes on to state: “if an attorney-client relationship exists between the accused and the requested counsel regarding matters that 

relate solely to the charges in question, the requested counsel will ordinarily be 

considered available to act as individual military counsel.” Id. para. 5-7.e. This 

provision would not have applied since CPT TN’s attorney-client relationship with 

Appellant was based on a legal assistance matter that CPT TN was working on for 

Appellant.

11 Appellant testified at the DuBay hearing that CPT TN was working at the JTF 

when Appellant asked for him to be his IMC: 

Q. Okay. Now, at that time when you requested [CPT TN], 

what was your relationship at that point with [CPT TN]?
United States v. Cooper, NMCCA No. 201500039

CRISFIELD, CJE. (dissenting)

28

indicates that he would have denied the request.12 There is no question that 

such a decision would have been lawful. Therefore, this assignment of error 

should fail at the second prong of Strickland. 

For these reasons, I respectfully dissent. 

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

A. I had transferred to a different shop, sir. A—he was on 

the JTF side. . . . 

DuBay Hearing R. at 76.

12 If the DuBay military judge and the majority are correct that CPT TN’s headquarters support company commander was the correct authority to make the IMC 

decision, then it was irrelevant how much time CPT TN had left to serve with JTFGTMO. The headquarters support company would have approved the request and 

CPT TN would have ceased all duties with JTF-GTMO to assume his full-time duties 

as Appellant’s IMC. Yet, both the DuBay military judge and majority positively cite 

the fact that CPT TN would have detached from JTF-GTMO a month before Appellant’s trial was scheduled to start.