UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Airman First Class JUAN M. M. SILVA

United States Air Force

ACM S32316

2 August 2016

Sentence adjudged 19 February 2015 by SPCM convened at Travis Air Force 

Base, California. Military Judge: Matthew P. Stoffel (sitting alone).

Approved sentence: Bad-conduct discharge, confinement for 60 days, 

forfeiture of $1,000.00 pay per month for 5 months, and reduction to E-1.

Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli and 

Major Lauren A. Shure.

Appellate Counsel for the United States: Lieutenant Colonel Roberto 

Ramirez; Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.

Before

SANTORO, BROWN, and SPERANZA 

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

A military judge sitting as a special court-martial convicted Appellant, pursuant to 

his pleas, of violating a lawful general regulation and exceeding authorized access to a 

computer system, in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934.

1 The

military judge sentenced Appellant to a bad-conduct discharge, confinement for 5 months, 

forfeitures of $1,000.00 pay per month for 5 months, and reduction to E-1. The convening 

authority reduced the confinement to 60 days, but approved the remainder of the sentence 

 1 The Article 134, UCMJ, 10 U.S.C. § 934, violation assimilated 18 U.S.C. § 1030 as a crime or offense not capital.
2 ACM S32316

in accordance with a pretrial agreement.

2 Pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982), Appellant asserts that his counsel was ineffective and that his sentence 

is inappropriately severe. We disagree and affirm.

Background

Angered at having received non-judicial punishment under Article 15, UCMJ, 10 

U.S.C. § 815, Appellant went into his commander’s office while the commander was not 

present. He located the commander’s access credentials for the Defense Finance and 

Accounting Service myPay website and used them to log onto the website pretending to be 

the commander. Once inside the myPay website, Appellant changed the commander’s 

allotment to the Thrift Savings Program from 6% of base pay to 92% of base pay, which 

resulted in his commander’s receiving only $637.92 in base pay for two months. 

Additionally, Appellant changed the commander’s myPay password, accessed the 

commander’s electronic leave and earnings statements, and had access to his bank account 

information and Social Security number.

Additional facts necessary to resolve the assignments of error are included below.

Effectiveness of Counsel

Appellant argues that his trial defense counsel was ineffective by persuading him to 

enter into a pretrial agreement and not exploring potential mental health defenses. In 

reviewing claims of ineffective assistance of counsel, we look “at the questions of deficient 

performance and prejudice de novo.” United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 

2012) (quoting United States v. Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008)).

To establish ineffective assistance of counsel, “an appellant must demonstrate both 

(1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in 

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

Washington, 466 U.S. 668, 687 (1984)). Under the first prong, the appellant has the burden 

to show that his “counsel’s performance fell below an objective standard of 

reasonableness—that counsel was not functioning as counsel within the meaning of the 

Sixth Amendment.” United States v. Edmond, 63 M.J. 343, 351 (C.A.A.F. 2006) (quoting 

United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)). The question is, therefore, “did 

the level of advocacy ‘fall[] measurably below the performance . . . [ordinarily expected] 

of fallible lawyers?’” United States v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006) (quoting 

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in original). Under the 

second prong, the deficient performance must prejudice the accused through errors “so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” United 

 2 The court-martial order, staff judge advocate review, and action incorrectly state Appellant’s rank as Senior Airman 

when his rank was actually Airman First Class at the time of trial. These clerical errors do not prejudice Appellant’s 

substantial rights. 
3 ACM S32316

States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 687). 

Counsel is presumed competent until proven otherwise. Strickland, 466 U.S. at 689.

Additionally, in the guilty plea context, “[t]o satisfy the ‘prejudice’ requirement, the 

defendant must show that there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.” United States v. 

Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 

“‘A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different 

result.” Id. at 16–17 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Further, 

Appellant must satisfy an objective inquiry: he must show had he been advised properly, 

that it would have been rational for him to reject the benefits of the pretrial agreement and 

to plead not guilty. Id. at 17.

In an affidavit submitted with his assignment of error, Appellant claims that he 

committed the offenses when he was experiencing severe symptoms of an unidentified 

mental condition.3 He asserts that his attorney told him that utilizing that information was 

not “a viable option” but did recommend that he speak to a “mental board” to determine 

whether he could stand trial. Appellant states “using [his] mental condition as a defense 

was not fully explored” and asks that the “medical board . . . be reconsidered.”

We are able to resolve this assignment of error without requiring the submission of 

an affidavit from trial defense counsel. See United States v. Ginn, 47 M.J. 236, 241–43

(C.A.A.F. 1997) (requiring no additional factfinding when Appellant’s affidavit fails to 

support a claim). Contrary to the assignment of error drafted by counsel, Appellant does 

not claim he was persuaded to enter into a pretrial agreement. Absent any evidence 

supporting that portion of his claim, we conclude that he failed to meet his burden to 

establish either Strickland prong on that issue.

Appellant’s mental health was thoroughly considered both before and during trial. 

The “medical board” Appellant refers to in his affidavit was a sanity board convened 

pursuant to Rule for Courts-Martial (R.C.M.) 706. The board was composed of two 

psychologists supervised by a psychiatrist. In the “short report” issued pursuant to R.C.M. 

706(c)(3)(A) and considered by the military judge, the board found that Appellant 

understood the nature and seriousness of the charges against him and was able to 

understand the proceedings and cooperate fully in his defense. The board also found that 

at the time of the offenses, Appellant did not lack substantial capacity to appreciate the 

criminality of his conduct or to conform his behavior to the requirements of the law.

At trial, the military judge discussed the board’s findings both with trial defense 

counsel and Appellant. The military judge twice correctly advised Appellant about the 

 3 The Record of Trial suggests that this was bipolar disorder, although that is not stated in Appellant’s affidavit.
4 ACM S32316

defense of lack of mental responsibility. Appellant told the military judge, under oath, that 

he had discussed that issue and potential defense with his counsel and told the military 

judge that he did not want to assert that defense. Appellant further stated that when he 

submitted his offer for pretrial agreement, he was not suffering from the effects of bipolar 

disorder and understood the meaning and effect of a guilty plea. Significantly, the military 

judge sua sponte recessed the court overnight so Appellant could consider the issue and 

consult with counsel. Appellant does not contest the military judge’s factual findings that 

nothing occurred at trial that would contradict the presumption of Appellant’s competence.

Appellant has failed to meet his burden to establish that his counsel’s performance 

was deficient. To the extent that Appellant belatedly challenges the conclusions of the 

R.C.M. 706 board, that issue was waived by his guilty plea, R.C.M. 910(j), and there is no 

factual assertion before us that Appellant involuntarily pled or was coerced into pleading 

guilty.

Sentence Appropriateness

Appellant alleges that a bad-conduct discharge is inappropriately severe for the 

offenses of which he was convicted. We review sentence appropriateness de novo. United 

States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006); United States v. Baier, 60 M.J. 382, 383–85

(C.A.A.F. 2005). We “may affirm only such findings of guilty and the sentence or such 

part or amount of the sentence, as [we find] correct in law and fact and determine[], on the 

basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). 

We assess sentence appropriateness by taking into account Appellant, the nature and 

seriousness of his offense, his record of service, and all matters inside the record of trial. 

United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v. Bare, 63 M.J. 

707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F. 2007). 

While we have a great deal of discretion in determining whether a particular 

sentence is appropriate, we are not authorized to engage in exercises of clemency. United 

States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy, 26 M.J. 394, 

395–96 (C.M.A. 1988). 

The maximum authorized sentence was the jurisdictional limit of the court-martial: 

reduction in rank to the lowest enlisted grade, forfeiture of two-thirds pay per month for 12 

months, confinement for 12 months, and a bad-conduct discharge. Appellant negotiated a 

pretrial agreement limiting confinement to 60 days and permitting a bad-conduct discharge.

The approved sentence of a confinement for 60 days and a bad-conduct discharge was 

clearly within the discretion of the convening authority.

We have given individualized consideration to this Appellant, his conduct, his 

military career and accomplishments, and the other relevant matters within the record of 

trial. Although the Defense Finance and Accounting Service was able to restore 
5 ACM S32316

Appellant’s commander’s pay distribution, Appellant’s acts caused significant emotional 

stress to the commander and the commander’s wife. Upwards of 40 hours of both the 

commander’s and his wife’s time were required to rectify the error. Credit- and Social 

Security number-monitoring services will now be required to protect against identity theft. 

Finally, the motive behind the crime—retaliation for imposition of military discipline—

demonstrates significant prejudice to good order and discipline within the unit. Appellant 

also has an extensive disciplinary history which includes non-judicial punishment, a 

vacation of a suspended punishment, letters of reprimand, and a letter of counseling.

While we have considered his medical diagnosis and the effects of a bad-conduct 

discharge on his future treatment, we nevertheless conclude that the approved sentence 

(and one which Appellant himself negotiated and accepted) is not inappropriately severe.

Conclusion

The findings and sentence are correct in law and fact, and no error materially 

prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 

10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

LAQUITTA J. SMITH

Appellate Paralegal Specialist