UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, CAMPANELLA, and HERRING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant TIMOTHY R. SLACK 

United States Army, Appellant 

ARMY 20150352 

Headquarters, III Corps and Fort Hood 

Wade N. Faulkner, Military Judge 

Colonel Ian G. Corey, Staff Judge Advocate 

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Payum Doroodian, JA (on brief); Colonel Mary J. Bradley, JA; Major 

Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief in response to 

specified issue). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A. G. Courie III, 

JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief). 

13 March 2017 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge: 

In this case, we hold that the military judge was not disqualified under Rule 

for Courts-Martial [hereinafter R.C.M.] 902 as a result of his duties during his 

tenure as the Chief of Justice (CoJ), III Corps, prior to presiding over appellant’s 

case as a military judge. 

An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of one specification of conspiracy to commit aggravated sexual 

assault and an indecent act, one specification of sexual assault, and one specification 

of indecent conduct, in violation of Articles 81 and 120, Uniform Code of Military 

Justice, 10 U.S.C. §§ 881, 920 (2006 & Supp. IV) [hereinafter UCMJ]. The panel 

sentenced appellant to a bad-conduct discharge, three months of confinement, and a 

reprimand. 
SLACK—ARMY 20150352 

2

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises one assignment of error, which requires neither discussion nor relief. We 

have also considered those matters personally raised by appellant pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit. 

This court, however, specified one issue requiring discussion, but no relief. 

This court asked whether the military judge was disqualified under R.C.M. 902 from 

presiding as a military judge in appellant’s case as a result of being the CoJ at III 

Corps and Fort Hood while the offenses committed by appellant were under 

investigation by Army criminal investigators. 

BACKGROUND 

The Sexual Assault and Investigation 

On 24 February 2012, HW, a twenty-one year old college student, went out 

with her friend, MS, to patronize local bars in Austin, Texas. After visiting several 

bars and consuming several drinks, HW became extremely drunk. At the last bar the 

pair visited, HW and MS became separated. HW left the bar with three men: 

appellant; Staff Sergeant (SSG) Dumas; and SSG Davis. The men drove HW to a 

local hotel. Once inside the hotel room, the men removed HW’s clothes and 

sexually assaulted her. HW testified that she was too drunk to protest. 

The next morning, HW took a cab home and eventually reported to her mother 

that she had been raped. Her mother and aunt reported the rape to the Austin Police 

Department (APD). When HW reported the rape to authorities, the identities of the 

three man were unknown. 

In March 2012, the APD notified Army Criminal Investigation Command 

(CID) of their investigation into HW’s report when they identified SSG Dumas, a 

Fort Hood soldier, as the person who booked the room where the rape occurred. 

SSG Dumas was a soldier assigned to 1st Army Division West, Fort Hood.1

 

On 20 September 2012, the Travis County District Attorney’s Office issued a 

warrant of arrest and opined that probable cause existed to believe SSG Dumas 

committed the offense of sexual assault. The CID reports do not indicate that 

military trial counsel ever gave opinions as to probable cause in these cases. Rather, 

CID appears to have relied on the Travis County District Attorney’s Office probable 

cause determination. 

 

1

 1st Army Division West has a separate GCMCA from III Corps, Fort Hood. 
SLACK—ARMY 20150352 

3

In October 2012, appellant changed duty stations from 82nd Field Artillery 

Regiment, 1st Cavalry Division, Fort Hood, Texas to 428th Field Artillery Brigade, 

Fort Sill, Oklahoma. 

On 20 December 2012, CID interviewed SSG Dumas about the rape. He 

named appellant and SSG Davis as the two soldiers with him in the hotel room that 

night. At the time the two additional suspects were identified, SSG Davis was 

assigned to the 1st Cavalry Division, Fort Hood, but appellant had since changed 

duty stations to Fort Sill, Oklahoma. 

On 25 January 2013, at the request of the APD, Fort Sill military criminal 

investigators questioned appellant about the rape. The criminal investigators then 

updated appellant’s Fort Sill chain of command on the status of the investigation. 

On 12 March 2013, the Travis County District Attorney’s Office issued a 

warrant of arrest and opined that probable cause existed to believe appellant 

committed the offense of sexual assault. 

CID issued its Final Report of Investigation on 19 March 2013 and distributed 

the report to members of the offices of the staff judge advocates (OSJA) of III 

Corps, 1st Army Division West, 1st Cavalry Division, and Fort Sill. This report 

listed as suspects: SSG Davis of 1st Cavalry Division, Fort Hood, TX; SSG Dumas 

of Division West, Fort Hood, TX, and SSG Slack of 428th Field Artillery Brigade, 

Fort Sill, OK. 

Status of the Military Judge During the Investigation 

Lieutenant Colonel (LTC) Wade Faulkner, the military judge in appellant’s 

case, was CoJ for III Corps and Fort Hood from July 2011 to late June 2013. 

Lieutenant Colonel Dan Everett was his successor as III Corps CoJ. The government 

obtained affidavits from both to address the question specified by this court. 

In his affidavit, LTC Faulkner asserted that when he became the military 

judge, he had no recollection of the facts of this case. To determine if he was ever 

made aware of appellant’s case in the normal course of handling III Corps matters, 

LTC Faulkner checked the III Corps military justice tracking tool he used when he 

was the CoJ to determine if appellant’s case was listed therein, and perhaps to 

refresh his recollection. Lieutenant Colonel Faulkner determined appellant’s name 

was not on his case tracker. 

In his affidavit, LTC Everett indicated that at the time the final CID report was 

issued, none of the three accused soldiers were assigned to a III Corps unit–

accordingly, it would highly unlikely that any of the three cases would have 

appeared on LTC Faulkner’s case tracker. Lieutenant Colonel Everett indicated that 
SLACK—ARMY 20150352 

4

by chance, he became aware of appellant’s case after becoming the CoJ when the 

Fort Hood senior defense counsel (SDC) contacted the III Corps OSJA complaining 

about the pending administrative separations facing SSG Dumas and SSG Davis. 

Appellant was not mentioned because he had already changed duty stations. The III 

Corps SJA forwarded the email to LTC Everett asking about whether he was tracking 

the cases–which he was not. 

As a result of receiving this information, III Corps halted the administrative 

separations of SSG Davis and SSG Dumas and arranged to have all three soldiers 

reassigned to III Corps so that all three cases could be handled together. Appellant’s 

reassignment to Fort Hood was effective 10 January 2014.

Over a year later, the government preferred and referred charges against 

appellant. On 20 February 2015, appellant’s court-martial began. Judge Faulkner 

presided. 

Judge Faulkner did not disclose on the record that he had previously served as 

the III Corps CoJ prior to serving as a military judge. He stated on the record that 

he was not aware of any grounds for challenge against him. Both sides declined to 

question or challenge him. Appellant elected to be tried by an officer panel. 

LAW AND DISCUSSION 

We review a military judge’s decision as to disqualification under R.C.M. 902 

for an abuse of discretion. United States v. Quintanilla, 52 M.J. 839, 849-50 (Army 

Ct. Crim. App. 2000) (citing United States v. Rivers, 49 M.J. 434, 444 (C.A.A.F. 

1998); United States v. Elzy, 25 M.J. 416, 417 (C.M.A. 1988); Liteky v. United 

States, 510 U.S. 540, 557 (1995) (Kennedy, J., concurring in judgment) (“a judge 

should be disqualified only if it appears that he or she harbors an aversion, hostility, 

or disposition of a kind that a fair-minded person could not set aside when judging 

the dispute”). The burden of demonstrating a disqualification is on the party 

requesting such disqualification. Id. A reasonable factual basis must be established; 

surmise or conjecture is not sufficient. Id. 

It is axiomatic that “[a]n accused has a constitutional right to an impartial 

judge.” United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001) (quoting United 

States v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999)). R.C.M. 902 implements this 

rule and “provides two bases for disqualification of a military judge.” United States 

v. Martinez, 70 M.J. 154, 157 (C.A.A.F. 2011). The first basis is a military judge’s 

duty to “disqualify himself or herself in any proceeding in which that military 

judge’s impartiality might reasonably be questioned.” R.C.M. 902(a). The second 

basis involves the specific, enumerated circumstances requiring disqualification, 
SLACK—ARMY 20150352 

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under R.C.M. 902(b).2 Appellant argues it is the second circumstance that applies to 

his case: 

(2) Where the military judge has acted as counsel, 

investigating officer, legal officer, staff judge advocate, or 

convening authority as to any offense charged or in the 

same case generally. 

Appellant argues R.C.M. 902(b) was violated when LTC Faulkner acted as the 

supervising counsel for III Corps during the Army CID investigation into appellant’s 

criminal activity. Appellant further asserts LTC Faulkner failed to disclose this 

potential ground for challenge under R.C.M. 902(a) and (e), thereby creating the 

appearance of bias. We disagree on both counts based on the reasons herein. 

Acted As Counsel under R.C.M 902(b) 

We find no evidence that LTC Faulkner, or the personnel he supervised, took 

official action on appellant’s case. In fact, the only evidence provided to indicate 

LTC Faulkner had any knowledge of this case during his tenure as CoJ would have 

been as a result of receiving the final CID report in March 2013. At this point in 

time, however, all three soldiers were assigned to units outside the III Corps 

GCMCA jurisdiction. Lieutenant Colonel Faulkner indicated that, as a matter of 

course, he did not read the CID reports but rather would dispatch them to the 

corresponding trial counsel in that jurisdiction. Accordingly, none of these three 

cases were added to LTC Faulkner’s III Corps case tracker. He would not have had 

any reason to receive or give briefs on the cases or to impart advice. 

 This case is distinguishable from United States v. Schafer, ARMY 20140245, 

2016 CCA LEXIS 429, at *9 (Army Ct. Crim. App. 28 Jun. 2016) wherein this court 

found that LTC Faulkner had acted “as counsel” under R.C.M. 902(b)(2) and (3) 

because, in the case of a soldier assigned to III Corps, he was actively involved in 

the preferral and referral process of Schafer’s case and appeared to have made 

recommendations on the charging decisions. That was not the case here. In fact, the 

preferral and referral occurred over a year after LTC Faulkner became a military 

judge. 

Based on the evidence before us, we conclude neither LTC Faulkner nor any 

of the personnel he supervised at III Corps had any involvement in the investigation, 

preferral or referral of these three cases during his tenure as the Chief of Justice. 

 

2

 These specific grounds are based on 28 U.S.C. § 455(b). See R.C.M. 902 analysis 

at A21-53. 
SLACK—ARMY 20150352 

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Appearance of Impartiality under R.C.M 902(a) 

We next look to whether LTC Faulkner had a duty to disqualify himself in this 

case because his impartiality might reasonably be questioned. See R.C.M. 902(a). 

The evidence indicates LTC Faulkner was not tracking appellant’s case, nor 

was he giving guidance to those he supervised concerning the prosecution of 

appellant, SSG Davis or SSG Dumas. In fact, the circumstances that brought these 

three cases to III Corp’s attention, (namely an email from the Fort Hood SDC to the 

III Corps SJA), came to light after LTC Faulkner had already become a military 

judge. Given that we have no evidence before us to conclude LTC Faulkner had any 

specific knowledge of this case, we see no reasonable factual basis to reasonably 

question his impartiality. Quintanilla, 52 M.J. at 850. 

This case is distinguishable from United States v. Keen, 2016 CCA LEXIS 

616, at *5 (Army Ct. Crim. App. 20 Oct. 2016) wherein this court set aside the 

conviction on R.C.M. 902(a) grounds. In Keen, the appellant was assigned to a unit 

within the III Corps GCMCA and the military judge, who had previously served as 

the CoJ, previously supervised the trial counsel who gave the probable cause 

opinion. Additionally, the appellant in Keen was listed on the CoJ’s tracker. There, 

the military judge did not disclose his prior position as CoJ, thereby precluding a 

possible waiver by Keen. In this case, LTC Faulkner did not disclose his prior 

position as III Corps CoJ, but appellant was not assigned to a unit within the III 

Corps GCMCA, the attorneys giving the probable cause opinion did not work for the 

III Corps CoJ, and appellant’s case was not on the CoJ’s case tracker. We conclude 

there is no reasonable basis to question the military judge’s impartiality. 

Based on the foregoing, we find the military judge did not abuse his discretion 

because there was no reasonable factual basis for disqualification under R.C.M 

902(a) or R.C.M 902(b). 

CONCLUSION 

The findings of guilty and the sentence are AFFIRMED. 

Senior Judge MULLIGAN and Judge HERRING concur. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: