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### UNITED STATES ) No. ACM 40261 (f rev)

Appellee ) )

v. ) ) ORDER Jason D. ORT ) First Lieutenant ( O

- 2 ) ) U.S. Air Force )

Appellant ) Panel 1

On 25 Janu ary 2022 , Appellant was tried by a g eneral court

- martial at
Joint Base Andrews

- Naval Air Facility Washington, Maryland. He was convicted, consistent with his pleas, of five specification s of knowingly making recordings of the private areas of individuals without their consent and under circumstances in which they had a reasonable expectation of privacy

, in violation of Article 120c , Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920c ; and one spe cification of attempting to make a recording of the private area of
an individua l without her consent and under circumstances in which she had a reasonable expectation of privacy , i n violation of Article 80, UCMJ, 10 U.S.C. § 980

. 1

During the preliminary hearing, Preliminary Hearing Officer (PHO) Exhibit 23 was provided to and review ed by the PHO. On page 5 of the preliminary hearing report , t he PHO described the exhibit as : a .mp4 file type, contained on a compact disc , 30 seconds in length, undated , with a file name of
“11

- 05

- 49 _2m

. ” The PHO sealed Exhibit 23.

Upon this court’s review of the record, we noted an issue with PHO Exhibit

23 in the original record of trial filed with the c ourt. Specifically, the disc wa s blank. Thus, it appears that PHO Exhibit 23 , and by extension the pre liminary hearing report as a whole, ha d not been properly attached to the record

. See
Rule for Courts

- Martial (R.C.M.) 1112 (f)(1)(A)

. 2

1 A ll references in this order to the U CMJ and Rules for Courts

- Martial are to the Manual for Courts

- Martial

, United States (2019 ed.)

.

2 Specifically, the preliminary hearing report shall be attached to the record of trial if
not used as a trial exhibit. The court notes that neither the preliminary he aring report

nor PHO Exhibit 23 appear to have been used as an exhibit at trial.United States v. Ort

, No. ACM 40261 (f rev)

2 On 2 August 2022, this court ordered the Government to show good cause

as to “why this court should not remand this record for completion and correction.” On 19 August 2022, the Government responded to the Show Cause Order, recommending that the case “ be returned to the military judge to correct
the record in accordance with R.C.M. 1112(d). ” On 31 August 2022, this court ordered the record of trial returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for the correct version of sealed PHO Exhibit 23, and any other portion of the record that is determined to be missing or defective after consultation with the parties. United
States v. Ort , No. ACM 40261, 2022 CCA LEXIS 521 , at *2 (A.F. Ct. Crim. App. 31 Aug. 2022 ) (order).

On 21 September 2022 , the record of trial was returned to this court purportedly complete post

- remand. However, upon review of PHO Exhibit 23 by defense counsel, it was brought to this court’s attention that it is a duplicate of
PHO Exhibit 24 and that there is no such e xhibit in the record that matches
the PHO’ s descri ption of PHO Exhibit 2 4 . Therefore, this court once again return s this case to the military judge to correct the record in accordance with R.C.M. 1112(d)

. Accordingly, it is by the court on this 11 th day of October , 2022,

ORDERED :

The record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for
the correct version of sealed PHO Exhibit 2 4 , and any other portion of the record that is determine d to be missing or defective hereafter, after consultation with the parties. See Article 66(g), UCMJ

, 10 U.S.C. § 866(g) ; R.C.M. 1112(d)(2)

– (3). Thereafter, the record of trial will be returned to this court for completion of its appellate review under Article 66(d), UCMJ , 10 U.S.C. § 866( d)

. The record of trial will be returned to the court not later than 31 October
2022 . If the recor d cannot be returned to the court by that date , the Government will inform the court in writing no t later than 2 7 October 2022 of the status of the Government’s compliance with this order

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court