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. 201 5 0 00 3 9

D ecided: 10 December 20 20

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. Weste r , 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, USNUnited States v. Cooper , NMCCA No. 201 5 0003 9 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 dissent ing opinion

.

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

STEPHENS
, Senior Judg e :In 2014, Appellant was convicted, contrary to his pleas, of three specifications of sexual assau lt and one specification of abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice [ UCMJ ]

. 1 In 20 15 , this Court order ed a D uB ay 2 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]. T he DuBay military judge found that Appellant did make an IMC request to his TD C , 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. B ut t he Judge Advocate General of the Navy certified the case to the Court of Appeals for the A r med 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 i ssues, and remanded to this Court to resolve the remaining assertions of error , which include whether Appellant’s TDC was ineffective for failing to su bmit his IMC request

. Now that t his case is before us for a second time
, we us e 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, f ind 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. 201 5 0003 9 Opinion of the Court

3 

### I. B ACKGROUND
Appellant , a Navy Reservist, was assigned to support Joint Task Forc e

Guantanamo Bay, Cuba [JTF

- GTMO]

. While in Cuba, he met Petty Officer Second Class [PO2] Papa 4 and t he y 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

w as under investigation for a sexual assault

. C aptain TN formed an attorney

client 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 co unsel 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 attorney

client relationship with Appellant concerning the sexual assau lt in vestigation. After charges were preferred, a n active duty Navy Lieutenant [LT], LT JB , was detailed as A ppellant’s TDC. She was stationed in Mayport, Florida
, and represent ed 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 a fter TDC conducted some research, she told Appellant the Commander would not be available because h e 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. C aptain 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, s he testified

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

5 Du Bay Military Judge Findings of Fact and Conc lusions of Law at 2 (quoting DuBay Hearing R. at 237).United States v. Cooper , NMCCA No. 201 5 0003 9 Opinion of the Court

4 that Appellant never requested CPT TN as an IMC , though she did admit to speaking with him when she contact ed him as a char acter witness

. But CPT TN testified tha t in his conversation with LT JB
, he told her he had an attorney

- client relationship with Appellant and wanted to represent him a t the court

- martial as his IMC. L ieutenant JB testified that CPT TN never told her these things. Even though t he 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 prosecut or, would not be available. Appellant agreed to not pursue him, either.
A t 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 oth e r counsel had been detailed to the case or if any IMC had b een requested. L ieutenant 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 repres ent ed by LT JB
, and tha t 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 a sked if any other counsel had been detailed. Appellant did not contradict his TDC or speak up about his IMC requests. In 2018, this Court hear d 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 c onvictions 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 include d whether TDC was ineffective for faili ng to forward the three separate IMC request s

. 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 submitUnited States v. Cooper , NMCCA No. 201 5 0003 9 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 abo ve

- described colloquies demonstrated a “knowing and intelligent w aiver” 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 necess ary 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 Ap pellant], was ineffective in failingto 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) T his Court err ed 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) T his Court should conduct a new factual sufficiency review and find that Appellant’s convictions are not factually sufficient ; (13) Appellant did not r eceive effec tive 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 , 1 2 M.J. 431.United States v. Cooper , NMCCA No. 201 5 0003 9 Opinion of the Court

6 

### II. D ISCUSSION

A. T his Court May Disregard Waiver u nder Article 66

1. Article 66 grants service courts of criminal appeals b road and u nique
p owers Military appellate courts owe their existence to the controvers y 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 ann ounced . N o 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 o w ing 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 F rom their incepti on and in their re

- creation, militar y appella te courts have been tasked with safeguarding the rights of servicemembers who are subject to military discip line

. Article 66 sta tes 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 : Th e 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. 201 5 0003 9 Opinion of the Court

7 been the subjec t of much discussion and is nearly unique 14 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 ac knowledged the “awesome, plenary de novo p ower of review under Article 66” 16 and has commented that a “clearer carte blanche to do justice would be difficu lt to express.” 17

2. United States v. Chin and its u se by s ervice c ourts of criminal a ppeal s
In 2016, a divided CAAF issued its opinion in United States v. Chin

. 18 In Chin , the appel lant pleaded guilty at a general court

- martial consisting of a military judge alone t o si x specifications of orders violations , seven specifications of dereliction of dut y 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 se ntenced 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 A t 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 precedent 21 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 suffici ency 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 plainUnited States v. Cooper , NMCCA No. 201 5 0003 9 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 wheth er 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 m andate to review the case and approve only the findings and sentenc e that “should be approved
, ” unless an accused also waive d 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. Of tentimes, CCAs have invoke d 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 se condary 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 i n 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. 201 5 0003 9 Opinion of the Court

9 Recently in United States v. Tyndall
, 27 this Court invoked Chin to correct what we consider ed to be an obvious, albeit r e l a tively minor
, error. T he 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 lat er place d in military pretrial confinement for that offense ) . The tr i a l counsel missed it. The military judge missed it. And s o 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 app ellant’s waiver or undermine our

“ unique mandate under Article 66.” 28
There has been little structure or consistency among CCA decision s 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 compelling ly discussed its “framework for how [it] approach[es] and analyze [ s ] whether t o 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 uniquepower 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 det ermines needs correction or has resulted in a court

martial where the perception of unfairness in the trial may have the actual effect of undermining good order and discipline. If on a practica l level we are more likely to exercise our

27 No. 201900096, 2019 CCA LEXIS 476 (N

- M. Ct. Crim. App. Nov. 2 7, 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. 201 5 0003 9 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, t o the extent that Chin does have any limitations, CCA s would appear to be on th e most solid ground when overlooking waiver to address issue s 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

. Th e statutory right to IMC i s 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 pre side over his court

martial 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 c harges or to correct an error regarding 72 hours of unlaw ful pretrial confinement . W e believe its authority must also necessarily extend to determinin g whether an appellant ’s TDC was ineffe ctive and caused a deprivation of hi s 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 wi ll 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 convers ations, procedures where defense counsel offices can require clients to complete forms indicating a lack of des ire 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 r es judicata and collateral estoppel
The assertion of error we are addressing in this opinion

— whether Appellant’s TDC was ineffect i ve for failing to properly submit his IMC request

—

32 Id . (emphasis in original).United States v. Cooper , NMCCA No. 201 5 0003 9 Opinion of the Court

11 was not an issue decided by our superior court. Thus, the related doctrine s of res judicata [claim preclusion] and collateral estoppel [issue preclusion] do not prevent our review of this issue. The general r ule of res judicata : applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time andpublic policy favoring the establishment of certainty in legal relations. The rule provides that when a c o urt 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 simpl y that when an issue of ultimate fact has on c e 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 . W e have no authority to conclude o therwise
, and we do not do so here. CAAF did not, how ever, 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 ba r this C ourt from resolving the issue, or bar Appellant from asking this Court to resolve it.

U nder 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 doctrine s 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. 201 5 0003 9 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

. Likewi se, the doctrine s 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 waiv er 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. App ellant’s TDC was Deficient in Failing to Submi t Appellant’s Request for CPT TN as IMC

1. Standard of r eview and the l aw
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 a ppellant 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. 201 5 0003 9 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 DuB ay 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 c e r tain 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
W hen reviewing an appellant’s claim that his TDC’s performance was ineffective, there is a “strong presumption that counsel’s conduct falls within th e 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 3 8, UCMJ

. Rule for Courts

- Martial [R.C.M.] 506 delineates the procedure for making an IMC request and authori zes service Secretaries to prescribe more detailed procedures. In the Navy, pur suant to the Naval Legal Service Command Manual
, TDC “ shall e n sure IMC requests are forwarded per R.C. M. 506(b )

. . . . All IMC requests will be submitted in writing. IMC request s for courts

martial 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 Elect ric, 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. 201 5 0003 9 Opinion of the Court

14 Because CPT TN was not among those designated as “ not reasonably available” [tr i a l 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 availab le” to act as Appellant’s IMC. But none of the time

honored 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 rou ting the IMC request. 45 We find the oversight to not rout e the IMC request for formal action as required was “ unreasonable under prevailing professional norms. ” 46 As such, the TDC’s performance was deficient.

3. C aptain 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, w e review the findings of fact under an abuse of discretion standard and will only overturn them if they are c learly erroneous or unsupported by the record. 47 W e 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” unl ess 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, t he 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 gra nted the I M C
reques t. C aptain TN ’ s legal chain of command at JTF

- GTMO shar p ly disagreed with this assessment, arguing that it, and not the California National Guard commander, w ould have made the determination of CPT TN ’s availability. And the JTF

- GTMO determination would have b een 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. 201 5 0003 9 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 Appell ant’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 s exual assault for which he was being court

- martialed. We concur that , if forwarded properly, the IMC request would have been approved. Having found de ficiency 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 b y Being Deprived of His Statutory Right to IMC

1. This violation is statutory rather than constitutional
The right to IMC is found with in 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 s ervice regulations deem whether a military counsel is per se unavailable
, by what standards a military counse l is available , a nd who makes that determination.

Th e 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 c riminal 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 “effectiv e assistance of counsel.” The first two of these constitutional violations do not

r e quire 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 guar antee 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. C ONST . amend. VI, cl. 7.United States v. Cooper , NMCCA No. 201 5 0003 9 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, des pite 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 i s a constitutional deprivation of Due Process that violates an accused’s Sixth Amendment right to counsel and is a structural

error ; t he other is statutory.

In United Sta tes 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 fund amental 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

B ut 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 reasonabl e 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 decline d 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. 201 5 0003 9 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 19 67 , 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 me mber 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 personall y 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 prejud ice arising from its denial.” 60

In United States v. Beatty 61

— 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 ha d 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 order e d, this time with additional charges. When the appellant asked the military judge for a new IMC for the new trial, hi s 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 w ith him at counsel table. However, d uring 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 Hartfi eld , 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. 201 5 0003 9 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 Hartfiel d
, the CMA , citing a case from the U.S. Court of Appeals for the Sixth C i rcuit, 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 schedule d to transfer out of the area. T he 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), UCM J.” 66But 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. Wh ile the appellant had some i nitial 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 Strickl and 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. 201 5 0003 9 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 de cline to test for prejudice a fter finding Appellant’s statutory right to I M C 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.

T he total ity of the circumstances here include (1) the existence of an attorney

- client relationship by a counsel who was reasonably available and wanted to represent Appel l a nt 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 be tween conviction and acquittal often lies in the margin

. U nder 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. 201 5 0003 9 Opinion of the Court

20 existence of prejudice” 71 are inappropriate for this manner of vio lation 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 co ntinued his pre

- existing attorney

- client relati onship with CPT TN as his IMC. Under these circumstances , we find a “ reasonable probabilit y

. . . sufficient to undermine confidence in the outcome. ” 72 Assuming arguendo that we must not presume prejudice unde r these circumstance s, we would defer to our prior decision in Cooper I . Rather than rehash what we said in detail, it suffices to say that the g overnment 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 [RLS O] and also the Navy’s regional Defense Service O ffice , South e ast. In the end, it was the g overnment’s deficiency in timely detailing TDC for Ap p ellant that spurred his formation of an attorney

- client relationship with CPT TN

. And then his TDC, operating u nder the detailing authority of the g overnment, 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 representati on 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 I M C request was never drafted and forwarded to CPT TN ’s chain

- of

- command for con sideration 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. 201 5 0003 9 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 court

martial. We look first to whether the convictions are legally and f actually sufficient. If they are, t hen 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 fact ually sufficient. If the findings were not legally

a nd factually sufficient, we would be obligated to set them aside and dismiss them . D ouble jeopardy would bar a rehearing as t o 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 th e legal and factual sufficiency of findings in a case where a remand i s ordered. The first r e ason 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 judge s of the strengths and weakness of the Government’s case against him . We ought to remain sil ent. 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 re

examined, 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. 201 5 0003 9 Opinion of the Court

22 

### III. C ONCLUSION

T he 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 appr opriate convening authority with authority to order a rehearing. Judge DE E RWESTER concur s

.United States v. Cooper , NMCCA No. 201 5 0003 9 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 Artic le 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. Chin 1 is unwise. Finally, I believe that the factual predicate relied upon by the majority for its determ ination of prejudice is clearly contradicted by the court

- martial record of trial and DuBay 2 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 interveningappellate 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, C AAF has reviewed thi s 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. 3I 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 appea ls 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. 201 5 0003 9 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 nar rowing criteri on 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 C ourt for a universal criminal justice matter, as opposed to a uniquely military matter ? 4 Giving weight to t his factor c ould lead to strange results

. This C ourt could disregard a waiver w here 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 Ame n dment ri ght to assistance of counsel.
I woul d propose we exercise our Chin authority without regard to whether or not the error results from a matter unique to the military. I would alsopropose that we utilize a strong presumption that a waiver will not be overridden. With that in mind here is my s uggested guideline for when the Navy

Marine Corps Court of Criminal Appeals should invoke Chin to find errornotwithstanding 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 draftingissue that resulted in an unreasonable multiplication of charges. The appellant fe lt 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. Theerror 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 difficu lt 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. 201 5 0003 9 CRISFIELD, CJE. (dissenting)

25 is sue later, even if they would have been victorious had they raised the issuein 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 th e n 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 an alysis 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 requir es 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 waiver s 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 wit h 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 i f 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 no t 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. 201 5 0003 9 CRISFIELD, CJE. (dissenting)

26 that C PT 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 assign ed him to the 40 thInfantry Division Headquarters Support Company, Forward, but the command that he was working for, and who had the authority to give him day

- to

day direction and tasking, was clearly JTF

- GTMO.
CPT TN submitted a declaration in which he st ated: I was deployed to Joint Task Force Guantanamo Bay (JTF

GTMO) 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 i n the headquarters support company. That company existed to provide admini strative support and an administrative chain of command to 40 th 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 function s whatsoever in the h eadquarters s upport c ompany. 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 h eadq uarters s upport c ompany 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 s taff j udge a dvocate 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. X XII

- A at 1

- 2.

7 App. Ex. IV

- A.United States v. Cooper , NMCCA No. 201 5 0003 9 CRISFIELD, CJE. (dissenting)

27 the JTF c ommander. 8 The s taff j udge a dvocate 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 ha rdly 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 n oted 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 consider ations 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,

r esponsibilities, and workload. ” 10
The fact that CPT TN transferred from his assignme nt with JTF

- GTMO and returned to the California National Guard one month prior to the start ofAppellant’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 d efense 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 appl ied 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. 201 5 0003 9 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 ser ve with JTF

GTMO. 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 st a r t

.