UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39310

________________________

UNITED STATES

Appellee

v.

Chase J. EASTERLY

Senior Airman (E-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 12 April 2019

________________________

Military Judge: Charles E. Wiedie, Jr.

Approved sentence: Dishonorable discharge, confinement for 7 years, 

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

adjudged 25 April 2017 by GCM convened at Joint Base Pearl HarborHickam, Hawaii. 

For Appellant: Major Todd M. Swensen, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Michael T. Bunnell, USAF; Captain Sean J. Sullivan, USAF; Mary Ellen 

Payne, Esquire.

Before HUYGEN, MINK, and POSCH, Appellate Military Judges.

Senior Judge HUYGEN delivered the opinion of the court, in which 

Judge MINK joined. Judge POSCH filed a separate opinion concurring 

in the result in part and dissenting in part. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4. 

________________________
United States v. Easterly, No. ACM 39310 

2

HUYGEN, Senior Judge:

A general court-martial composed of officer members convicted Appellant, 

contrary to his pleas, of attempted premeditated murder in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880.1,2 The 

members adjudged a sentence of a dishonorable discharge, confinement for 

seven years, forfeiture of all pay and allowances, and reduction to the grade 

of E-1. The convening authority approved the sentence as adjudged. 

Appellant asserts six assignments of error: (1) whether the military judge 

abused his discretion by admitting Appellant’s confidential communications 

with a psychotherapist;3 (2) whether the military judge abused his discretion 

by admitting statements Appellant made in the presence of his first sergeant 

without being advised of his rights under Article 31, UCMJ, 10 U.S.C. § 831; 

(3)–(5) whether the conviction of attempted premeditated murder was legally 

and factually insufficient because the Government failed to prove specific intent and substantial step and because Appellant abandoned his effort to 

commit murder; and (6) whether, at the time of the offense, Appellant lacked 

the mental responsibility to commit the offense. We also specified the issue of 

whether the military judge committed plain error by failing to instruct sua 

sponte on the impact of a punitive discharge on permanent retirement for 

physical disability, and we considered the issue of timely appellate review. 

We find prejudicial error with regard to the military judge’s failure to instruct the court members on the impact of a punitive discharge on retirement. Thus, we affirm the findings but set aside the sentence.

I. BACKGROUND

In September 2015, Appellant was deployed to southwest Asia. While 

there, he had homicidal thoughts, which worried him. He told his deployed 

 

1 The members found Appellant not guilty of communicating a threat in violation of 

Article 134, UCMJ, 10 U.S.C. § 934. A charge for fraudulent enlistment in violation 

of Article 83, UCMJ, 10 U.S.C. § 883, was withdrawn and dismissed after arraignment. 

2 All references in this opinion to the UCMJ, Rules for Courts-Martial, and Military 

Rules of Evidence are to the UCMJ and rules found in the Manual for CourtsMartial, United States (2016 ed.) (MCM).

3 The trial transcript, exhibits, and briefs addressing the first assignment of error 

were sealed pursuant to Rule for Courts-Martial (R.C.M.) 1103A. These portions of 

the record and briefs remain sealed, and any discussion of sealed material in this 

opinion is limited to that which is necessary for our analysis. See R.C.M. 1103A(b)(4).
United States v. Easterly, No. ACM 39310 

3

first sergeant about these thoughts, and, as a result, he was medically evacuated to Landstuhl Regional Medical Center (Landstuhl), Germany and, after 

a couple of weeks of treatment, to Travis Air Force Base, California. While at 

Landstuhl, Appellant received his first diagnosis of schizophrenia. 

In October 2015, when Appellant reached his home station of Joint Base 

Pearl Harbor-Hickam, Hawaii, he began treatment consisting of prescribed 

medication and regular (usually weekly) sessions with a psychologist, Major 

(Maj) ER. Maj ER confirmed the diagnosis of schizophrenia, which triggered 

the process to evaluate Appellant for a discharge based on disability. 

On 26 April 2016, an Informal Physical Evaluation Board (IPEB) confirmed a specific diagnosis of “Schizophrenia Spectrum, Persistent Auditory 

Hallucinations” and found Appellant unfit for military service. However, the 

IPEB also found that Appellant’s condition existed prior to military service 

and was not permanently aggravated by military service. The IPEB concluded that Appellant should be discharged with no compensable disability, despite his “significant risk of recurrence and/or progression of his disease” and 

need for “frequent follow-up with a medical specialist.” 

In May 2016, the victim of Appellant’s offense, EE, met Appellant through 

a dating website. At the time, EE was approximately 60 years old and Appellant was 22. EE testified at trial and recounted the following: Their first date 

was a dinner on Monday, 23 May 2016. EE described Appellant as “charming” and “a Jimmy Stewart sort of nice.” After dinner, they drove in Appellant’s car to the beach. EE was cold and wanted Appellant to put his arm 

around her. He declined to do so, at which point EE wanted to go home. They 

drove back to the restaurant. Appellant asked for a goodnight kiss, but EE 

spurned him because he smelled like cigar smoke. On Tuesday night, they 

went country dancing, and EE described Appellant as “a complete gentleman.” Appellant asked EE to go out with him on Wednesday, but she said no.

That Friday, 27 May 2016, EE and Appellant went on their third date, 

which was planned as a dinner and a nighttime hike. When Appellant 

showed up in casual clothes, EE was disappointed because “the first night I 

was with Jimmy Stewart, the second night I was with like John Wayne, and 

then there’s this guy that looks like he’s going to fix his car,” an impression 

that turned out to be prophetic. On the way to dinner, Appellant’s car broke 

down, and EE pushed it into the restaurant parking lot while he steered. His 

previously mild stutter became “thick” as he was making phone calls to arrange a tow. After dinner, they took a taxi to EE’s apartment so that she 

could drive Appellant back to base. When they were about to get into her car, 

he asked to use her bathroom and added that he could check what tools he 

would need the next day to hang a mirror she had asked him to hang. Once in 

her apartment, she pointed him toward the guest bathroom but, shortly af-
United States v. Easterly, No. ACM 39310 

4

terwards, found him in her bathroom. She told him to get out of her bathroom, which she did not like guests to use, and he went into her bedroom and 

sat on her bed. After they argued about a news story being reported on television, Appellant was “very apologetic,” asked EE to let him “relax” her, and 

offered to perform oral sex on her. She initially declined but then acquiesced. 

According to EE, the oral sex was not “something that he was wanting to do 

or skilled at.” She stopped Appellant by sitting up “like the Exorcist” and yelling, “I hope someone’s having fun because I’m not.” Her outburst saddened 

Appellant, who struggled to say that he wanted to take a short walk. EE said, 

“why don’t you take a long walk,” and Appellant left the apartment. 

EE expected Appellant to return the next day, Saturday, 28 May 2016, to 

hang a mirror and build an armoire for her. She called him repeatedly and 

left voicemail messages, the last one ending with her calling him a “coward.” 

He did not return her calls or otherwise respond. 

On the afternoon of Sunday, 29 May 2016, EE heard a knock on her 

apartment door. She was not expecting anyone, assumed there was a delivery, and decided not to answer. She then heard Appellant say her name and 

apologize repeatedly; she did not respond. After 10 to 15 minutes had passed, 

Appellant called out to EE’s roommate, who was not at home, and said that 

he was there to retrieve his wallet. EE did not want to talk with Appellant, so 

she stayed out of Appellant’s view but watched through a window as Appellant took “another look around” and left. 

In a videotaped interview by Air Force Office of Special Investigations 

(AFOSI) agents that was presented at trial, Appellant described his actions of 

the weekend as follows: on 27 May 2016, Appellant was at EE’s apartment 

when “my body went like numb . . . . I just stared at a wall for a good like 

five, 10 minutes. And then I told her I wanted to go for a walk.” He left the 

apartment and took a taxi back to base. 

On 28 May 2016, Appellant had “the urge to want to hurt [EE]” and 

thought, “I don’t want to do this but I can’t stop myself.” He went to the Base

Exchange and bought a knife, lighter, and lighter fluid. He gathered a bag of 

“items,” including the knife, lighter, and lighter fluid, trash bags, gloves, extra clothes, bleach, and a dust mask. He planned to make sure he would not 

get “caught” by using the bleach “for DNA,” specifically, to remove his DNA 

from the knife and EE’s apartment, the gloves “for no [finger]prints,” and the 

lighter and lighter fluid to start a fire in EE’s apartment, as he had learned 

to do by watching television shows. 

On 29 May 2016, Appellant borrowed another Airman’s car and drove to 

EE’s apartment complex. He parked a few blocks away and claimed that he 

avoided the security cameras around the complex as he approached EE’s 
United States v. Easterly, No. ACM 39310 

5

building. Once inside, he followed another resident on to the elevator and arrived at EE’s apartment. Standing with his hands at his sides and his bag at 

his feet, he knocked on her door, waited 5 to 10 minutes, and then knocked 

again. While he was nervous, he also felt “a power of like strength almost, 

feels like a thrill ride.” But as he stood at her door for a total of approximately 20 minutes, “my brain clicked, like went back to normal me. And I realized 

what I had done.” He further explained to AFOSI, “thank God she wasn’t 

home. . . . ‘Cause otherwise I may have done it. . . . I might have actually 

harmed her in some way. I don’t think I actually would have . . . killed her, 

but I’m sure I might have tried actually harm[ing her].” He initially remembered leaving the building and throwing his bag into a dumpster but then recalled taking it out of the dumpster and back to his dormitory room. Although 

Appellant told AFOSI that, “the day after,” he spoke with a chaplain and 

then went with the chaplain to see Maj ER, he actually spoke with a chaplain 

three days later and went by himself to see Maj ER. 

Monday, 30 May 2016, was a federal holiday. On Wednesday, 1 June 

2016, Appellant talked with a military chaplain, who referred Appellant to 

Maj ER, the psychologist who had been treating him since October 2015. Appellant—of his own volition and by himself—went to see Maj ER. Events unfolded as described below, and the day ended with Appellant voluntarily admitted for in-patient treatment at the Behavioral Health Unit of Tripler Army Medical Center (TAMC), Hawaii.

On the following Monday, 6 June 2016, Appellant’s first sergeant, Master 

Sergeant (MSgt) JM, became the first person to contact AFOSI about Appellant. On 7 June 2016, AFOSI agents executed a search authorization and 

seized from Appellant’s dormitory room a black bag that contained various 

items, including a bottle of bleach, a multipurpose lighter, a bottle of lighter 

fluid, a face dust mask, an eight-inch knife in a sheath, a trash bag, shorts, 

and a t-shirt. Documents and security camera video footage from the Base 

Exchange indicated that Appellant bought the knife and, in a separate transaction, the lighter and lighter fluid on 28 May 2016. Security camera video 

footage from EE’s apartment complex showed Appellant, wearing a suit and 

carrying a black bag, as he walked to and waited for the elevator in EE’s 

apartment building on 29 May 2016. On 8 June 2016, AFOSI agents interviewed Appellant while he was still an in-patient at TAMC. 

Meanwhile, the PEB process continued. On 21 June 2016, a Formal Physical Evaluation Board (FPEB) determined that Appellant “has a chronic disease [schizophrenia] that has no cure and is characterized by unpredictable 

exacerbations and remissions. Clinical notes state that [Appellant] will require lifelong treatments.” Overriding the earlier finding of the IPEB, the 

FPEB found that Appellant’s condition was permanently aggravated by mili-
United States v. Easterly, No. ACM 39310 

6

tary service. As a result, the FPEB recommended “Permanent Retirement”

with a disability rating of 100 percent. 

Also on 21 June 2016, Appellant was released from in-patient treatment

at TAMC and ordered into pretrial confinement, where he remained until he 

was sentenced on 25 April 2017. 

II. DISCUSSION

A. Psychotherapist–Patient Privilege

Appellant first asserts that the military judge abused his discretion by 

admitting Appellant’s confidential communications with a psychotherapist, 

which were made to facilitate mental health treatment. We disagree. 

1. Additional Background 

During a motions hearing, Maj ER described a meeting with Appellant on 

1 June 2016 when Appellant told her that he was worried he might hurt 

someone. He explained that, a couple days earlier, a woman with whom he 

had a brief sexual relationship “stood him up.” He then obtained items to kill 

her and went to her home, but she was not there. While he was not planning 

to try again, he was scared about the possibility that he might. When Maj ER 

asked Appellant if he was willing to be admitted for in-patient mental health 

treatment, he indicated that he was. 

Maj ER notified Appellant’s chain of command, specifically, his first sergeant, MSgt JM, that Appellant posed a potential danger to other people. 

Maj ER considered her notice to be an exception to the psychotherapist–

patient privilege. Maj ER relayed to MSgt JM that Appellant had planned to 

murder a woman with whom he had a brief sexual relationship; that he 

bought certain items to kill her; and that he went to her apartment and 

knocked on her door but she was not at home. Appellant identified EE only 

by her first name and did not provide her telephone number or address. In 

notifying Appellant’s unit and providing details about what Appellant had 

told Maj ER, Maj ER was trying to convey the gravity of the situation and to 

differentiate it from previous incidents when Appellant had told her about 

homicidal thoughts he was having. Although Appellant had previously described having such thoughts to Maj ER, he had never before described planning or taking any action to commit murder. 

After Maj ER spoke with MSgt JM, she provided the same information 

about what Appellant had told her in two telephone calls to TAMC, first to 

the Emergency Room attending physician and second to the Behavioral 

Health Unit attending psychiatrist. Maj ER did so intending for Appellant to 

be evaluated at the Emergency Room and then admitted for in-patient hospi-
United States v. Easterly, No. ACM 39310 

7

talization at the Behavioral Health Unit. She also expected that, if there was 

a “duty to warn,” TAMC would handle it. 

Maj ER “handed off” Appellant to MSgt JM, and MSgt JM escorted Appellant to TAMC. Maj ER expected MSgt JM to stay with Appellant until he was 

admitted or to contact her if he was not. Although Maj ER was supporting 

Appellant’s decision to seek voluntary admission for in-patient treatment at 

TAMC, she was fully prepared to take the necessary steps to have him admitted involuntarily if he changed his mind.

At Appellant’s court-martial, the Defense moved to suppress Appellant’s

statements to Maj ER and derivative evidence pursuant to Mil. R. Evid. 513. 

The military judge conducted a closed hearing and denied the motion based 

on the exceptions articulated in Mil. R. Evid. 513(d)(4) and Mil. R. Evid.

513(d)(6). The military judge also determined that Maj ER did not disclose 

more information than necessary. 

2. Law 

“We review a military judge’s decision to admit or exclude evidence for an 

abuse of discretion.” United States v. Jenkins, 63 M.J. 426, 428 (C.A.A.F.

2006) (citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). “We 

will reverse for an abuse of discretion if the military judge’s findings of fact 

are clearly erroneous or if his decision is influenced by an erroneous view of 

the law.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (quoting 

United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995)). “[A] judge has a 

range of choices and will not be reversed so long as the decision remains within that range.” Id. (citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 

(D.C. Cir. 1992)).

Mil. R. Evid. 513(a) states the general rule for the psychotherapist–

patient privilege and provides that a patient has a privilege to refuse to disclose and to prevent anyone else from disclosing a confidential communication made to a psychotherapist for the purpose of facilitating diagnosis or 

treatment. “Psychotherapist” includes a clinical psychologist or other mental 

health professional. Mil. R. Evid. 513(b)(2). A “confidential” communication is 

“not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services.” Mil. R. 

Evid. 513(b)(4). 

Mil. R. Evid. 513(d) describes seven exceptions to the psychotherapist–

patient privilege. The two relevant to Appellant’s case are when a psychotherapist “believes that a patient’s mental or emotional condition makes the 

patient a danger to any person,” Mil. R. Evid. 513(d)(4), and when disclosure 

is “necessary to ensure the safety and security of military personnel, military 
United States v. Easterly, No. ACM 39310 

8

dependents, military property, classified information, or the accomplishment 

of a military mission,” Mil. R. Evid. 513(d)(6). 

3. Analysis 

The record in Appellant’s case, which includes the military judge’s written 

ruling denying the Defense’s motion to suppress Appellant’s statements to 

Maj ER, makes clear that those statements qualified under Mil. R. Evid. 513 

as confidential communications subject to the psychotherapist–patient privilege. Appellant made the statements to Maj ER as his treating psychologist 

for the purpose of facilitating mental health treatment, or, as Appellant put it 

when explaining to AFOSI how he came to be admitted at TAMC, “I went 

straight [to Maj ER], said I need the help.” 

Had Appellant not told Maj ER about his attempt to kill EE, the Government, particularly AFOSI or any law enforcement agency, would never have 

known of Appellant’s crime. The Airman whose car Appellant drove to EE’s 

apartment on Sunday and who Appellant asked to sharpen his newly purchased knife on Saturday had no idea of what Appellant intended; EE did 

not—and had no reason to—suspect that Appellant presented a threat when 

she saw him at her door on Sunday; and the chaplain who referred Appellant 

to Maj ER let him make the decision to go and let him go unescorted. But because of what Appellant told Maj ER, she notified MSgt JM and providers at 

TAMC; MSgt JM escorted Appellant to TAMC and was present during Appellant’s medical examination; and MSgt JM connected what he saw in Appellant’s dormitory room—the black bag and its contents—to what Maj ER had 

disclosed to MSgt JM and what Appellant had said when being admitted to 

TAMC about Appellant’s plan to commit murder. As a result, MSgt JM contacted AFOSI; AFOSI seized the bag and interviewed Appellant; and Appellant provided the details of what he had done.

Appellant now contends that the military judge abused his discretion by 

not suppressing the statements Appellant made to Maj ER and all of the fruit 

that sprang from that purportedly poisonous tree. We are not persuaded. The 

military judge issued a written denial of the Defense’s motion to suppress, 

which laid out his bases and reasoning with more than sufficient information 

to leave us with a definite and firm conviction that the military judge did not 

commit any error, much less abuse his discretion. In the denial, the military 

judge addressed the three concerns Appellant raised at trial and raises again 

on appeal, and we find in the military judge’s determinations neither a clearly erroneous finding of fact nor an erroneous view of the law. 

First, Appellant points to Maj ER’s testimony that, at the time Appellant 

made the confidential communications, he “did not have an active plan [to 

kill EE] or intention to go out and do it again.” Appellant argues that the Mil. 
United States v. Easterly, No. ACM 39310 

9

R. Evid. 513(d)(4) exception requires a “present” danger and that, when he 

went to see Maj ER, more than two days had passed since his attempt to kill 

EE and he did not want to hurt anyone at that time. We agree with Appellant’s reading of Mil. R. Evid. 513(d)(4) to require a “present” danger insofar 

as a strictly “past” danger would be insufficient to trigger the exception. For 

example, Appellant’s homicidal thoughts before his September 2015 medical 

evacuation would not have allowed Maj ER to disclose his confidential communications to her in May 2016. 

However, we disagree with Appellant’s reading insofar as he would have 

“present” mean “at that exact moment.” As the military judge explained, Maj 

ER disclosed Appellant’s confidential communications because she believed 

he was a “present” danger. While Maj ER played her part in Appellant’s voluntary admission for in-patient treatment at TAMC, she was fully prepared 

to have him admitted involuntarily. No more than Maj ER and the military 

judge, we cannot ignore the fact that Appellant went to see Maj ER on 1 June 

2016 not only because he had planned and attempted to kill EE the weekend 

before but also because he was scared he might try again. That Maj ER believed Appellant was a danger to anyone and thus the Mil. R. Evid. 513(d)(4) 

exception applied was a fact-specific determination for the military judge that 

we decline to override. See Jenkins, 63 M.J. at 430–31 (holding that 

“[w]hether the exceptions [to Mil. R. Evid. 513] apply is necessarily a factspecific determination for a military judge to consider with an accurate 

awareness of the facts underlying the dispute” and that the military judge 

properly applied Mil. R. Evid. 513(d)(4) and (6) where the appellant made a 

verbal threat while “brandishing” a knife and, two days later, made the confidential communications at issue on appeal). 

Second, Appellant asserts that the Mil. R. Evid. 513(d)(6) exception did 

not apply because EE was a civilian and therefore he did not endanger the 

safety and security of himself or other military personnel, military dependents, military property, or a military mission. However, the military judge 

explained that he applied the exception specifically because of Appellant’s 

military status: 

[Appellant] is a military member assigned to a military unit. 

While he remains a member of that military unit, he has a role 

to play in the accomplishment of the mission. His fitness for 

duty has a direct impact on his ability to perform his Air Force 

function. . . . [T]here was a real and immediate concern about 

his fitness for duty. 

As with the Mil. R. Evid. 513(d)(4) exception, the application of the Mil. R. 

Evid. 513(d)(6) exception was a fact-specific determination for the military 

judge that we leave undisturbed. 
United States v. Easterly, No. ACM 39310 

10

Third, Appellant claims that Maj ER disclosed more privileged information than was necessary to have Appellant admitted at TAMC and therefore more than was necessary to ameliorate the danger Appellant presented 

or to ensure military safety and security. To support this claim, Appellant 

relies on Air Force Instruction 44–172, Mental Health, ¶ 6.6.2 (13 Nov. 2015), 

which directs mental health practitioners to “provide the minimum amount of 

information to satisfy the purpose of the disclosure.” The military judge resolved the issue to our satisfaction by finding that the attempt to kill EE “was 

very different in [Maj ER’s] mind” from the previous incidents when Appellant experienced homicidal thoughts; his “unit needed to understand how this 

situation was different”; and “this was best accomplished by explaining what 

[Appellant] had done that made it different.” Thus, the military judge’s decision to deny the Defense’s motion to suppress Appellant’s statements to Maj

ER was well within the range of choices available to him, rested on neither a 

clearly erroneous finding of fact nor an erroneous view of the law, and did not 

constitute an abuse of discretion. 

B. Article 31, UCMJ, Rights Advisement 

Appellant next avers that the military judge abused his discretion by admitting statements Appellant made while seeking medical treatment and in 

the presence of his first sergeant, MSgt JM, without being advised of his 

rights under Article 31, UCMJ. We are not convinced. 

1. Additional Background

On 1 June 2016, Maj ER “handed off” Appellant to MSgt JM. During a 

motions hearing, MSgt JM described what happened next: Appellant and 

MSgt JM first drove separately to Appellant’s dormitory, where Appellant 

parked his car and changed clothes. Appellant then rode with MSgt JM to the 

TAMC Emergency Room. 

At the Emergency Room, Appellant, accompanied by MSgt JM, checked in 

at the front desk and, after a brief wait, was shown to an examination room 

where his vital signs were checked and a blood sample taken. Still accompanied by MSgt JM, Appellant was shown to another examination room. As described by MSgt JM, a woman—identified later in the record as a nurse—

came into the room and asked Appellant questions such as “was he feeling 

anything on his skin, hearing any voices, seeing any visions, stuff like that.” 

She did not ask and Appellant did not offer why Appellant was at TAMC. After the woman left, a man—identified later as the Emergency Room attending physician, Dr. RD—came in and asked Appellant several questions, including why he was there. MSgt JM remembered Appellant telling Dr. RD 

that Appellant bought everything he needed “to commit the perfect murder”

and that he did not go through with it because “she wasn’t home.” After addi-
United States v. Easterly, No. ACM 39310 

11

tional questions and answers, Dr. RD left. Another man who MSgt JM described as a “doctor” and was the Behavioral Health Unit attending psychiatrist4 entered the room, had MSgt JM step out, and asked MSgt JM what was 

happening with Appellant. After the doctor and MSgt JM spoke, the doctor 

told MSgt JM that he would be with Appellant for an hour to an hour and a 

half and that MSgt JM could leave during that time. After an hour had 

passed, MSgt JM returned and waited outside the examination room. The 

doctor came out and informed MSgt JM that Appellant had voluntarily 

“agreed to be admitted to the Behavioral Health Unit.” 

When Dr. RD, the Emergency Room attending physician, examined Appellant, MSgt JM was present. According to Dr. RD, it is “typical” for “command members” to be present during an examination of a military-member 

patient if the patient is “brought in by command.” Furthermore, Dr. RD does 

not have “command” leave unless the patient so requests.5 The purpose of Dr. 

RD’s examination is to determine if the patient is “medically cleared” for admission to the Behavioral Health Unit. If Dr. RD decides that “nothing else 

needs to be done from a medical standpoint,” a psychiatrist conducts an evaluation and decides whether to admit the patient. 

Dr. RD began Appellant’s examination by asking what had brought Appellant to the Emergency Room. According to Dr. RD’s notes, Appellant said 

that he had “gotten the idea in his head to . . . go and kill a girl. . . . He got his 

materials. . . . Went to her home. She wasn’t home and he said he panicked 

and realized he would have killed her.” 

After Appellant was admitted on Wednesday, 1 June 2016, MSgt JM next 

saw Appellant when he visited Appellant on Friday, 3 June 2016. Appellant 

asked him if he could bring Appellant a uniform and toiletries from Appellant’s dormitory room, which he agreed to do on Monday, 6 June 2016. When 

MSgt JM went to Appellant’s dormitory room that Monday, he first looked for 

a bag to carry everything. He saw an unzipped black bag, opened it, saw 

items that he assumed Appellant referenced as the items Appellant bought 

“to commit the perfect murder,” including trash bags, bleach, black shorts, 

and a dust mask, and closed the bag. After collecting the things he had come 

 

4 There is no definitive by-name identification of the “doctor” in the record. 

5 Dr. RD described his interactions with patients as “privileged” but, when questioned, clarified that he was referring to “physician-patient confidentiality” and protections for health information that he guessed would fall under the Health Insurance Portability and Accountability Act (HIPAA). He was not referring to any privilege for psychiatry or mental health treatment or diagnosis.
United States v. Easterly, No. ACM 39310 

12

for and putting them in another bag, MSgt JM looked in the first bag again 

“to make sure I saw what I thought I saw,” left the first bag in the room, departed the room, and contacted AFOSI that same day. 

On 7 June 2016, AFOSI agents executed a search authorization and 

seized from Appellant’s dormitory room the black bag that MSgt JM had 

looked in the day before. On 8 June 2016, AFOSI agents interviewed Appellant while he was still an in-patient at TAMC. Before asking Appellant about 

the events of 28–29 May 2016, one of the agents advised Appellant of his 

rights under Article 31, UCMJ. After asking a few questions and acknowledging his understanding of his rights, Appellant waived them. 

At Appellant’s court-martial, the Defense moved to suppress his statements to Maj ER and TAMC personnel, including those statements made in 

the presence of MSgt JM, and derivative evidence pursuant to Article 31, 

UCMJ, and the Fifth Amendment to the United States Constitution, U.S. 

CONST. amend. V. The military judge conducted a hearing and denied the 

motion because there was no requirement to advise Appellant of his Article 

31, UCMJ, rights, including the right against self-incrimination, before he 

made the statements at issue.6

2. Law 

The standard of review of a military judge’s decision to admit or exclude 

evidence for an abuse of discretion is as stated above. “When there is a motion to suppress a statement on the ground that rights’ warnings were not 

given, we review the military judge’s findings of fact on a clearly-erroneous 

standard, and we review conclusions of law de novo.” United States v. Swift, 

53 M.J. 439, 446 (C.A.A.F. 2000) (citing United States v. Ayala, 43 M.J. 296, 

298 (C.A.A.F. 1995)) (additional citation omitted). 

Article 31(a), UCMJ, articulates a military member’s right against selfincrimination. 10 U.S.C. § 831(a). Article 31(b), UCMJ, requires that a person 

subject to the UCMJ first inform a military member suspected of an offense 

of “the nature of the accusation” and advise the member of the right against 

self-incrimination before interrogating the member or asking for a statement. 

10 U.S.C. § 831(b); see also Mil. R. Evid. 305(c)(1). 

 

6 Unlike during motions practice at trial, Appellant now limits his claim of an Article 

31, UCMJ, rights violation to the statements Appellant made in the presence of 

MSgt JM while Appellant was seeking admission and treatment at TAMC. As a result, we do not address the applicability of Article 31, UCMJ, to the statements Appellant made to Maj ER and the Behavioral Health Unit attending provider, which 

statements were made outside of MSgt JM’s presence. 
United States v. Easterly, No. ACM 39310 

13

3. Analysis 

The only self-incriminating statements Appellant made in MSgt JM’s 

presence while Appellant was seeking medical treatment were the statements to Dr. RD, the TAMC Emergency Room attending physician. In particular, MSgt JM recalled Appellant telling Dr. RD that Appellant bought items 

“to commit the perfect murder.” MSgt JM thought he saw those items when 

he opened a bag in Appellant’s dormitory room and then contacted AFOSI. 

The Article 31, UCMJ, issue raised by Appellant is a two-part question of 

first whether Dr. RD was required to advise Appellant of his rights and second whether MSgt JM was required to do so. The military judge answered 

both parts in the negative, as do we. 

In the military judge’s written denial of the Defense’s motion to suppress 

the statements made to medical personnel in MSgt JM’s presence, the judge 

cited, inter alia, United States v. Loukas, 29 M.J. 385, 387 (C.M.A. 1990), for

the general proposition that Article 31(b), UCMJ, applies if a military member is questioned by someone acting in a law enforcement or disciplinary capacity. See also United States v. Cohen, 63 M.J. 45, 49–50 (C.A.A.F. 2006). 

We find no error with the military judge’s determination that Dr. RD and 

MSgt JM were not acting in such a capacity and therefore neither was required to advise Appellant of his Article 31, UCMJ, rights. See also United 

States v. Moses, 45 M.J. 132, 134–35 (C.A.A.F. 1996) (“[I]n United States v. 

Fisher, 21 U.S.C.M.A. 223, 44 C.M.R. 277 (1972), this Court held that a military doctor was not required to give Article 31(b) warnings before asking 

questions for the purpose of diagnosing a patient.”). We further note, as did 

the military judge, that MSgt JM did not interrogate Appellant or ask him for 

a statement about his offense, did not use the medical process or medical personnel to circumvent Article 31, UCMJ, and was present during Dr. RD’s 

medical examination to ensure Appellant’s health and safety by ensuring he 

was admitted for in-patient treatment. Accordingly, we find that the military 

judge did not abuse his discretion by admitting the statements Appellant 

made to Dr. RD in the presence of MSgt JM without Appellant being advised 

of Appellant’s Article 31, UCMJ, rights. 

C. Legal and Factual Sufficiency 

Appellant challenges the legal and factual sufficiency of his conviction of 

attempted premeditated murder in three respects: (1) the Government failed 

to prove specific intent; (2) the Government failed to prove substantial step; 

and (3) Appellant abandoned his effort to commit murder. We conclude that 

Appellant’s conviction is legally and factually sufficient.
United States v. Easterly, No. ACM 39310 

14

1. Additional Background

The evidence at trial indicated that the romantic relationship developing 

between Appellant and EE came to an abrupt end with an awkward sexual 

encounter on 27 May 2016. On 28 May 2016, while EE was leaving angry 

voicemail messages, Appellant bought an eight-inch knife, lighter fluid, and a 

lighter. On 29 May 2016, he drove to EE’s apartment and twice knocked on 

her door with a bag at his feet containing the knife, lighter fluid, and lighter 

as well as a bottle of bleach, face dust mask, trash bags, shorts, and a t-shirt. 

After he waited for 20 or so minutes, he left. 

When interviewed by AFOSI on 8 June 2016, Appellant made several, 

seemingly inconsistent statements. He described his state of mind during the 

events of 28–29 May 2016 as “I still knew what I was doing somewhat, but 

my brain, like I could not stop myself from doing things.” He also claimed 

that he “actually didn’t want to do anything. So as far as I know I didn’t actually like actually do anything wrong. But you know I did have the thoughts 

that I did want to do something but [I] wasn’t in my right mind at the time.”

Appellant admitted, “[The] only other time I’ve actually felt like I had actual 

thoughts of wanting to harm someone was when I was deployed.” Comparing 

the deployed incident to the charged incident, Appellant described the former 

as “I only had thoughts. I never took any sort of action at all. . . . I wasn’t 

even close to . . . wanting to harm someone or anything like that ‘cause I 

stopped myself so soon. This time I had [no] chance to stop myself.”

While Appellant conceded that “[i]f she were home I’m pretty sure I 

would’ve harmed her in some way,” he found it significant that he wore “a 

thousand dollar suit” to EE’s apartment:

I wouldn’t want to mess that up . . . with blood or anything. I 

think that’s like another small part of me that was like . . . 

you’re not [going] to do this . . . ‘cause why would I wear a 

thousand dollar suit to do that. That doesn’t even make sense. 

Furthermore, when Appellant “realized what [he] was doing,” he “went home” 

and “never went back again,” a fact he thought important because “I’m sure if 

I really wanted to do it I would’ve gone back again to her house, which I never did.” Yet, he also told AFOSI, “thank God she wasn’t home. . . . [O]therwise 

I may have done it. . . . I might have actually harmed her in some way. I don’t 

think I actually would have . . . killed her, but I’m sure I might have tried actually harm[ing her].” 

2. Law 

We review issues of legal and factual sufficiency de novo. Article 66(c), 

UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399 

(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
United States v. Easterly, No. ACM 39310 

15

ciency is limited to the evidence produced at trial. United States v. Dykes, 38

M.J. 270, 272 (C.M.A. 1993) (citations omitted). The test for legal sufficiency 

of the evidence is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 

324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

“[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” 

United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). 

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325. “In conducting this unique appellate role, 

we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our] own independent 

determination as to whether the evidence constitutes proof of each required 

element beyond a reasonable doubt.’” United States v. Wheeler, 76 M.J. 564, 

568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting Washington, 

57 M.J. at 399), aff’d, 77 M.J. 289 (C.A.A.F. 2018). The term “beyond a reasonable doubt” does “not mean that the evidence must be free from conflict.”

Id. (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).

In order for Appellant to be found guilty of attempted premeditated murder under Article 80, UCMJ, the Government was required to prove beyond a 

reasonable doubt that (1) Appellant did a certain overt act, that is, went to 

the residence of EE with a knife and other items, purposely avoided security 

cameras, snuck on to the elevator, and knocked on her door; (2) the act was 

done with the specific intent to commit premeditated murder; (3) the act 

amounted to more than mere preparation; and (4) the act apparently tended 

to effect the commission of the intended premeditated murder. See Manual 

for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 4.b. 

An attempt requires more than preparation; it requires an overt act. 

The overt act required . . . is a direct movement toward the 

commission of the offense. . . . The overt act need not be the 

last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An 

attempt would nevertheless have been committed, for the combination of a specific intent to commit an offense, plus the 

commission of an overt act directly tending to accomplish it, 

constitutes the offense of attempt. 
United States v. Easterly, No. ACM 39310 

16

Id. ¶ 4.c.(2).

Although failure to complete the offense is not a defense, voluntary abandonment is. Id. ¶ 4.c.(2), (4). 

It is a defense to an attempt offense that the person voluntarily 

and completely abandoned the intended crime, solely because 

of the person’s own sense that it was wrong, prior to the completion of the crime. The voluntary abandonment defense is not 

allowed if the abandonment results, in whole or in part, from 

other reasons, for example, the person . . . decided to await a 

better opportunity for success, was unable to complete the 

crime, or encountered unanticipated difficulties . . . . 

Id. ¶ 4.c.(4).

The elements of premeditated murder under Article 118, UCMJ, 10 

U.S.C. § 918, are (1) that a certain person is dead; (2) that the death resulted 

from an act or omission of the accused; (3) that the killing was unlawful; and 

(4) that, at the time of the killing, the accused had a premeditated design to 

kill. Id. ¶ 43.b.(1). Premeditated murder is explained as “murder committed 

after the formation of a specific intent to kill someone and consideration of 

the act intended.” Id. ¶ 43.c.(2)(a). “The existence of premeditation may be 

inferred from the circumstances.” Id. 

3. Specific Intent

Appellant’s contention that the Government failed to prove his specific intent to kill EE relies on his ambivalent statements to AFOSI, such as “I 

might have actually harmed her in some way. I don’t think I actually would 

have actually gone through [with it] and killed her,” and the fact that, while 

standing at her apartment door, he never took the knife out of the bag. Conversely, the Government points to Appellant’s statement that he “bought everything he needed to commit the perfect murder” and his plan to use those 

items to kill EE and evade detection by law enforcement: stab EE with a 

knife but wear gloves to avoid leaving his fingerprints at the scene of the 

crime, pour bleach on the knife and in the apartment to remove his DNA, 

change from bloody clothes to clean ones, and light the apartment on fire to 

destroy the evidence. The Government’s argument rests on the legal premise 

that the intent to commit premeditated murder can be shown by direct or circumstantial evidence, United States v. Davis, 49 M.J. 79, 83 (C.A.A.F. 1998)

(citation omitted), and the logical conclusion that, had Appellant intended 

only to harm EE, he would have needed only a means to do so and not everything “to commit the perfect murder.”

We are persuaded by the Government’s argument. While Appellant never 

explicitly stated that he intended to kill EE, such a statement was not neces-
United States v. Easterly, No. ACM 39310 

17

sary for the Government to prove specific intent. See id. Furthermore, we find 

the evidence sufficient to determine Appellant’s specific intent to kill EE despite his attempts to minimize the deadly nature of his actions during his 

AFOSI interview. He had developed a plan to “harm” EE and gathered particular items to cover up his crime of “harming” EE. But Appellant made no 

attempt to hide his identity from EE, the “harm” was to be done with a knife, 

and the cover-up involved setting the apartment on fire. The circumstantial 

evidence supports the logical conclusion that Appellant intended to kill EE by 

stabbing her to death, lest she survive any lesser harm and identify him as 

the perpetrator. 

Considering the totality of the evidence, both direct and circumstantial, 

and drawing every reasonable inference from that evidence in favor of the 

prosecution, we are convinced that a reasonable factfinder could have found 

beyond a reasonable doubt all the essential elements of attempted premeditated murder, including that Appellant had the specific intent to commit the 

offense. Furthermore, we have weighed the evidence in the record of trial and 

made our own independent determination that the Government proved beyond a reasonable doubt each required element of the convicted offense, including Appellant’s specific intent to kill EE as a premeditated act. 

4. Substantial Step 

Appellant asserts on appeal, as he did at trial, that the Government failed 

to prove that Appellant took a substantial step to committing premeditated 

murder and thus failed to prove that Appellant attempted the offense.7 Appellant argues that his actions did not include taking out the knife, trying to 

break into EE’s apartment, waiting for EE, or returning to the apartment 

and therefore amounted only to “mere preparation.” We are instead persuaded by the Government’s position and the actions Appellant did take: he 

bought a knife, borrowed a car, drove to EE’s apartment, got on to the elevator without notifying her, and twice knocked on the door in a 20-minute time 

period during which he waited for her to answer with a bag at his feet that 

contained the knife to kill her and items to cover up the crime. These actions 

constitute a substantial step, or overt act. 

Understanding that the overt act need not be the last act essential to 

committing the offense, see MCM, pt. IV, ¶ 4.c.(2), we determine that Appel-

 

7 The Defense moved for a finding of not guilty pursuant to R.C.M. 917 “as there was 

insufficient evidence to establish a substantial step that tended to effectuate the 

commission of the murder of [EE] by knife.” The military judge denied the motion, 

and Appellant does not now challenge that denial. 
United States v. Easterly, No. ACM 39310 

18

lant’s overt act, particularly the last step of knocking, waiting, and knocking 

again, completed the attempt offense. See United States v. Brooks, 60 M.J. 

495, 498–99 (C.A.A.F. 2005) (conviction for attempted carnal knowledge of a 

child under the age of 12 was found legally sufficient where the appellant 

brought a stuffed animal and other gifts suitable for a young child to a 

planned meeting with the purported eight-year-old girl and was apprehended 

at the door of the hotel room where the meeting was supposed to occur); United States v. Schweitzer, No. ACM 39212, 2018 CCA LEXIS 453, at *2–13 

(A.F. Ct. Crim. App. 8 May 2018) (unpub. op.), rev. denied, 78 M.J. 110 

(C.A.A.F. 2018) (conviction for attempted sexual assault of a child under the 

age of 16 was found legally and factually sufficient where the appellant 

bought condoms, put them in the glove box of his car, drove to the home of 

the purported 14-year-old girl, and knocked on the back door). As Appellant

himself admitted, “thank God she wasn’t home. . . . [O]therwise I may have 

done it.” See United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012) (holding 

that the appellant’s request for the victim to lift her shirt was an “overt act” 

sufficient to constitute attempt and that, but for her refusal to do so, the appellant would have committed the offense of indecent conduct). A reasonable 

factfinder could have found beyond a reasonable doubt that Appellant took a 

substantial step and therefore attempted to commit premeditated murder, 

and we are convinced beyond a reasonable doubt of the same. 

5. Abandonment 

The military judge instructed the court-martial panel members that the 

“defense of voluntary abandonment has been raised by the evidence.” The 

military judge continued:

If you’re satisfied, beyond a reasonable doubt, of each of the elements of attempted premeditated murder . . . you may not 

find [Appellant] guilty . . . if, prior to the completion of [the offense], [Appellant] abandoned his effort to commit the offense, 

under circumstances manifest in a complete and voluntary renunciation of [Appellant]’s criminal purpose. . . . Renunciation 

of a criminal purpose is not voluntary if it is motivated, in 

whole or in part . . . by the inability to commit the crime. Renunciation is not complete if it is motivated by a decision to 

postpone the criminal conduct until a more advantageous time. 

The burden is on the prosecution to establish [Appellant]’s 

guilt, beyond a reasonable doubt. Consequently, unless you are 

satisfied, beyond a reasonable doubt, that [Appellant] did not 

completely and voluntarily abandon his criminal purpose, you 

may not find [Appellant] guilty . . . . 
United States v. Easterly, No. ACM 39310 

19

Appellant contends that, while standing at the door of EE’s apartment, he 

realized what he was doing and that it was wrong, so he left, thus abandoning his plan to harm EE. Had the evidence supported this theory—Appellant 

abandoned his plan solely because of his own sense that it was wrong—then 

we would agree that the defense of voluntary abandonment would prevent a 

finding of guilt. But the evidence does not support this theory. 

In Appellant’s interview by AFOSI, he explained why he did not execute 

his plan when he said, “[T]hank God she wasn’t home. . . . ‘Cause otherwise I 

may have done it. . . . I might have actually harmed her in some way. I don’t 

think I actually would have . . . killed her, but I’m sure I might have tried actually harm[ing her].” This admission, combined with Appellant’s actions of 

knocking twice and waiting for 20 minutes and his recollection that he first 

threw his bag in a dumpster but then retrieved it and took it back to his dormitory room, convinces us beyond a reasonable doubt that he did not execute 

his plan simply because he was unable to—not because he realized that what 

he was doing was wrong. A reasonable factfinder could have made the same 

determination and found beyond a reasonable doubt that Appellant did not 

completely and voluntarily abandon his plan to kill EE. 

In summary, we find the Government carried its burden to prove that 

Appellant specifically intended to kill EE and that he took a substantial step 

towards accomplishing that objective and thus attempted to commit premeditated murder. We also find Appellant did not completely and voluntarily 

abandon his criminal plan. A reasonable factfinder could have found beyond a 

reasonable doubt all the essential elements of the offense with which Appellant was charged and convicted, and we are convinced beyond a reasonable 

doubt of his guilt. Therefore, his conviction is legally and factually sufficient. 

D. Lack of Mental Responsibility 

In Appellant’s final assignment of error, he claims that, because of his diagnosed schizophrenia, he lacked the mental responsibility at the time of the 

offense to commit the offense and therefore his conviction was legally and factually insufficient. We are not persuaded. 

1. Additional Background

Appellant was first diagnosed with schizophrenia when he was medically 

evacuated to Landstuhl in September 2015. In October 2015, Maj ER confirmed the diagnosis, and the disability evaluation process began. In April 

2016, an IPEB found Appellant unfit for military service and recommended 

his discharge with no compensable disability. In June 2016, an FPEB overrode the IPEB and recommended “Permanent Retirement” with a disability 

rating of 100 percent.
United States v. Easterly, No. ACM 39310 

20

When AFOSI interviewed Appellant on 8 June 2016, he had been an inpatient at the TAMC Behavioral Health Unit since 1 June 2016 and would 

remain there until 21 June 2016. After checking with the unit’s attending 

psychiatrist, the AFOSI agents met Appellant, advised him of his Article 31, 

UCMJ, rights, which he waived, and then conducted the interview, which 

was videotaped and played at trial. 

During the interview, Appellant made several references to his mental 

state during the events of 28–29 May 2016, beginning with the following:

I wasn’t in my right mind. Like my brain like clicked, to like 

where it switched. . . . [I have] schizophrenia, so I hear voices 

and like see things. So with that like I’ve had a series of like 

strange events to where I actually like lose time and things like 

that, to where I don’t know what I did. And this is kind of like 

one of those times to where I still knew what I was doing 

somewhat, but my brain, like I could not stop myself from doing things. So that’s kind of what happened, almost like a psychotic break in a way, to where like I didn’t understand it. 

That’s why I immediately went over here, sought treatment, 

‘cause I was like I don’t know what’s going on. 

Appellant went on to describe his actions of the weekend in significant detail. 

Although his memory was not completely accurate and he misremembered 

the three-day gap between when he went to EE’s apartment and when he 

talked with the chaplain, he did not appear to suffer memory loss for any significant action or period of time during the weekend of 28–29 May 2016. 

After the Government rested its case during the findings portion of Appellant’s trial, the military judge and counsel discussed the possibility of a defense of lack of mental responsibility and expert opinion testimony by 

Maj ER, which the judge decided to allow. When the court-martial resumed 

the next day, the military judge denied the Defense’s motions for findings of 

not guilty and then asked whether the Defense was “going to offer the defense of [lack of] mental responsibility.” The civilian defense counsel responded, “The defense intends to rest when we go back on the record,” and the Defense in fact rested without presenting any evidence on any matter, including 

lack of mental responsibility. 

For findings, the military judge instructed the court-martial panel members that the “evidence in this case raises the issue of whether [Appellant]

lacked criminal responsibility for the [charged offenses and lesser included 

offenses] as a result of a severe mental disease or defect.” The military judge 

continued with a lengthy instruction that informed the members if, when, 

and how to consider the defense. The instruction also covered the presump-
United States v. Easterly, No. ACM 39310 

21

tion of mental responsibility, the defense burden “of proving by clear and 

convincing evidence that [Appellant] was not mentally responsible,” and the 

procedure to decide the issue. The military judge then said: 

To summarize, you must first determine whether [Appellant], 

at the time of these offenses, suffered from a severe mental disease or defect. If you are convinced by clear and convincing evidence that [Appellant] did suffer from a severe mental disease 

or defect, then you must further consider whether he was unable to appreciate the nature and quality or the wrongfulness of 

his conduct. If you are convinced by clear and convincing evidence that [Appellant] suffered from a severe mental disease or 

defect, and you are also convinced by clear and convincing evidence that he was unable to appreciate the nature and quality 

or wrongfulness of his conduct, then you must find [Appellant]

not guilty only by reason of lack of mental responsibility. 

During closing argument for findings, the Government addressed mental 

responsibility by pointing out that the Defense presented “zero evidence” that 

Appellant lacked mental responsibility at the time of the offense. The Defense countered that “the documents that are important, that show a lack of 

mental responsibility are Prosecution Exhibits 23 and 24.” Those exhibits 

were the respective forms documenting the results of the IPEB and FPEB, or, 

as the Defense explained them, “one that shows that [Appellant is] 100% disabled for schizophrenia, and the specific diagnosis is other specified schizophrenia disorder with auditory hallucinations.” The Defense went on to argue 

that Appellant could not appreciate the wrongfulness of his actions because of 

his serious mental disease or defect of schizophrenia. 

2. Law

The standard of review of legal and factual sufficiency is as stated above. 

“It is an affirmative defense in a trial by court-martial that, at the time of the 

commission of the acts constituting the offense, the accused, as a result of a 

severe mental disease or defect, was unable to appreciate the nature and 

quality or the wrongfulness of the acts.” Article 50a(a), UCMJ. 10 U.S.C. § 

850a(a); see also R.C.M. 916(k). “The accused has the burden of proving the 

defense of lack of mental responsibility by clear and convincing evidence.” Article 50a(b), UCMJ, 10 U.S.C. § 850a(b); R.C.M. 916(b)(2). 

The affirmative defense of lack of mental responsibility requires the accused to prove, by clear and convincing evidence, 

that at the time of the offense, (1) the accused suffered from a

“severe mental disease or defect,” and (2) as a result of that 

mental disease or defect, the accused was “unable to appreci-
United States v. Easterly, No. ACM 39310 

22

ate” either (a) the “nature and quality” of his acts, or (b) the 

“wrongfulness” of his acts.

United States v. Mott, 72 M.J. 319, 323 (C.A.A.F. 2013) (quoting Article 50a, 

UCMJ, 10 U.S.C. § 850a (2006)). Wrongfulness is determined using an “objective standard.” Id. at 326. 

In United States v. Martin, the United States Court of Appeals for the 

Armed Forces (CAAF) decided to test for “reasonableness” non-guilt findings 

of fact made by members on the question of mental responsibility but to test 

for “clear error” such findings if made by a military judge. 56 M.J. 97, 107 

(C.A.A.F. 2001). Testing for reasonableness, an appellate court should reject 

non-guilt findings of fact made by members on the question of mental responsibility “only if no reasonable trier of fact could have failed to find that the 

[accused’s lack of mental responsibility] at the time of the offense was established by clear and convincing evidence.” Id. (citations omitted). 

3. Analysis 

As the Defense simultaneously acknowledged and argued at trial, the only evidence to prove Appellant’s lack of mental responsibility was the evidence from the IPEB and FPEB. The document from the IPEB showed that 

Appellant had a diagnosis of “Schizophrenia Spectrum, Persistent Auditory 

Hallucinations,” which many of the trial participants shortened to “schizophrenia.” The document from the FPEB indicated that, because of Appellant’s 

diagnosis, he was recommended for “Permanent Retirement” with a disability 

rating of 100 percent. 

Assuming arguendo that it is appropriate to shorten the diagnosis of 

“Schizophrenia Spectrum, Persistent Auditory Hallucinations” to a diagnosis 

of “schizophrenia” and that schizophrenia is a severe mental disease or defect, we turn to the question of whether, as a result of schizophrenia, Appellant was unable to appreciate the nature and quality or the wrongfulness of 

the acts constituting the offense of attempted premeditated murder. Appellant’s own statements, especially those made to AFOSI, indicate that he 

could. Appellant bought, collected, and put in a bag the items he believed he 

needed to “commit the perfect murder.” He claimed he evaded the security 

cameras as he approached EE’s apartment. He was prepared to destroy not 

only any evidence he left at the scene of the crime but also the crime scene 

itself in order to avoid getting caught. These statements lead us to conclude 

that, even if Appellant was not fully in control of all his mental faculties at 

the time of the offense, he was never unable to appreciate the nature and 

quality or the wrongfulness of his actions. Thus, we determine that a reasonable panel could have found that Appellant failed to carry his burden to prove 

by clear and convincing evidence that he was not mentally responsible at the 
United States v. Easterly, No. ACM 39310 

23

time of the offense. In other words, the defense of lack of mental responsibility fails the test for reasonableness and was not proven. See Martin, 56 M.J. 

at 107. Appellant’s conviction of attempted premeditated murder remains legally and factually sufficient. 

E. Retirement Instruction 

We specified the following issue: whether the military judge committed 

plain error by failing to instruct sua sponte on the impact of a punitive discharge on permanent retirement for physical disability. Despite the thorough 

brief submitted by Appellee, we find plain error and set aside the sentence. 

1. Additional Background

The documentation of the IPEB and FPEB findings and recommendations 

was offered by the Government and admitted during the findings portion of 

Appellant’s court-martial as Prosecution Exhibits 23 and 24 respectively. 

During the presentencing proceeding, the Defense called Colonel 

(Col) DB, a psychiatrist and the Director of the Center for Forensic Behavioral Sciences, Walter Reed National Military Medical Center, Washington, District of Columbia. Col DB testified that “a finding of 100% disability. . . . 

What that would afford [a person severely disabled by an illness], in addition 

to disability payments is, lifelong access to medical care and treatment 

through the [Veterans Affairs (VA)] system . . . .” As Prosecution Exhibits 23 

and 24 indicated and Col DB explained, Appellant’s 100 percent disability 

rating acknowledged that Appellant’s mental health condition would require 

long-term treatment and “likely interfere with [his] ability to lead a productive life in any occupation.” In Appellant’s written and verbal unsworn 

statements, he expressed his hope that he could continue to receive medications through the VA, which he could not if he was punitively discharged. The 

Defense did not present evidence on the impact of a punitive discharge on 

permanent disability retirement, which is what the FPEB recommended. 

When the military judge and counsel discussed sentencing instructions, 

the Defense did not request and the military judge did not ask about an instruction on the impact of a punitive discharge on permanent retirement for 

physical disability. The Government did request an instruction on collateral 

consequences, which the military judge modified. After a defense objection 

and discussion on the record, the military judge further modified the instruction and decided to give it. 

The military judge instructed the members on, inter alia, the effects of a 

punitive discharge, including that “[s]uch a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs

and the Air Force establishment.” The military judge later instructed, “The 

consequences that flow from a federal conviction, other than the punishment, 
United States v. Easterly, No. ACM 39310 

24

if any you impose, are collateral consequences of the conviction. The collateral 

consequences stemming from a federal conviction should not be part of your 

deliberations in arriving at a sentence.”

The Government argued for a sentence that included ten years of confinement and a dishonorable discharge. The Defense argued that ten years of 

confinement and a dishonorable or bad-conduct discharge were not appropriate and noted that a punitive discharge “strips [Appellant] of all his benefits.

It strips him of all his Veteran[s] Affair[s] benefits.” 

Although there had been discussion of the FPEB’s recommendation for 

permanent disability retirement during the findings portion of trial, there 

was no mention of Appellant’s eligibility for retirement during the presentencing proceeding when the members were present. 

2. Law

In United States v. Boyd, the CAAF articulated the general proposition 

that, “[w]hen an accused is eligible for retirement, ‘the potential loss of retirement benefits [is] a proper matter for consideration by factfinders[.]’” 55 

M.J. 217, 220 (C.A.A.F. 2001) (second and third alterations in original) (quoting United States v. Sumrall, 45 M.J. 207, 209 (C.A.A.F. 1996)) (additional

citation omitted). The CAAF then considered retirement for length of service 

and temporary disability retirement. Id. at 220–22. Regarding the former, the 

Defense requested an instruction, which request the military judge denied. 

The CAAF concluded that “any failure to instruct the members about the impact of a dismissal on future retirement benefits did not have a substantial 

influence on the sentence.” Id. at 221. 

Regarding Boyd’s temporary disability retirement, the Defense did not 

request an instruction. The CAAF determined that “[b]ecause the defense did 

not request an instruction on the impact of a punitive discharge on temporary 

disability retirement, we will grant relief only if the military judge’s failure to 

instruct sua sponte was plain error. See United States v. Grier, 53 M.J. 30, 34 

(C.A.A.F. 2000) . . . .” Id. at 222. In Boyd, “there was no factual predicate for 

an instruction on temporary disability retirement,” as no evidence about the 

appellant’s eligibility for disability retirement was presented to the members. 

Id. The CAAF held therefore “that there was no error at all, much less plain 

error.” Id. 

As cited by the CAAF in Boyd (and the Government in its brief on the issue we specified), Grier holds, “To be plain error: (1) there must be an error; 

(2) the error must be plain (clear or obvious); and (3) the error must affect the 

substantial rights of the defendant.” 53 M.J. at 34 (citing United States v. 

Powell, 49 M.J. 460, 463 (C.A.A.F. 1998)).
United States v. Easterly, No. ACM 39310 

25

3. Analysis 

As Appellee repeatedly points out, the Defense did not request an instruction on the impact of a punitive discharge on permanent disability retirement. Therefore, we will grant relief only if the military judge’s failure to instruct sua sponte was plain error. 

First, we find there was error. Contrary to Appellee’s assertion, there was 

an evidentiary predicate that established Appellant’s eligibility for permanent disability retirement: the FPEB findings and recommendation presented 

to the members in the form of Prosecution Exhibit 24. See Boyd, 55 M.J. at 

222 (holding that there was no error where there was no “factual predicate,” 

or any evidence presented to the members reflecting the appellant’s eligibility 

for disability retirement). Despite this evidence before the members, the military judge did not ask the Defense about or sua sponte give a retirement instruction, and the members were not instructed on whether or how to consider the impact of a punitive discharge on permanent disability retirement. 

Second, we find the error was clear or obvious. Prosecution Exhibits 23 

and 24 were both discussed during the findings portion of trial, particularly 

when the Defense first objected to Prosecution Exhibit 23 but then withdrew 

the objection after the Government offered Prosecution Exhibit 24. In addition, the Government argued during findings that Appellant was concerned 

about his retirement pay and 100 percent disability compensation when he 

communicated the threat to kill any doctor who changed his diagnosis.8 As 

the assistant trial counsel put it, “There is a reason he made that threat. He 

needed to make sure that that diagnosis did not change and . . . that his medical retirement would go through.” Furthermore, Prosecution Exhibit 24, Appellant’s documented diagnosis, and the FPEB’s recommendation for retirement and disability compensation were all discussed before and while Col DB 

testified as a defense sentencing witness. Outside of the presence of the panel 

but on the record, the military judge himself described Prosecution Exhibit 24 

as “the official retirement . . . . this is the Air Force, on [Appellant’s] permanent record, saying, you know, you are hereby retired and this is based upon 

this diagnosis.” The military judge then asked the trial counsel “Is that not 

correct?” and “But the Air Force is prepared to retire [Appellant] with a diagnosis of schizophrenia, correct?” The trial counsel responded “yes.” 

Third, we find the error of the military judge’s failure to instruct on retirement affected the substantial rights of Appellant, specifically, his right to 

have the court-martial panel members consider all of the information they 

 

8 As noted previously, Appellant was found not guilty of this charge. 
United States v. Easterly, No. ACM 39310 

26

were allowed to consider before they adjudged his sentence. Underlying our 

assessment of the effect of the error is the premise articulated by CAAF that 

retirement pay “is a critical matter of which the members should be informed 

in certain cases before they decide to impose a punitive discharge.” United 

States v. Luster, 55 M.J. 67, 71 (C.A.A.F. 2001) (citation omitted). Unlike in a 

case where an accused may become eligible for retirement based on years of 

service at a future date, see, e.g., Boyd, 55 M.J. at 220–21, Appellant was going to be permanently retired with a 100 percent disability rating once the 

FPEB issued its findings and recommendation. It was a matter of when, not 

if. In addition, the 100 percent disability rating meant lifetime care and 

treatment for the mental health condition that was not only the sole driver of 

Appellant’s retirement but also a central matter in Appellant’s trial. 

Our consideration of the effect of the error in Appellant’s case is further 

informed by the context in which it occurred. While the military judge gave 

the standard instruction on the effects of a punitive discharge, including the 

deprivation “of substantially all benefits administered by the Department of 

Veterans Affairs and the Air Force,” the CAAF has determined that “[w]here 

a servicemember is perilously close to retirement . . . a general collateralconsequences instruction disregarding the effects of a punitive discharge on 

retirement will not suffice.” United States v. Talkington, 73 M.J. 212, 217

(C.A.A.F. 2014) (quoting United States v. Greaves, 46 M.J. 133, 139 (C.A.A.F. 

1997)). Furthermore, it is significant that the military judge gave—at the 

Government’s request and over the Defense’s objection—a collateral consequences instruction that in effect directed the members not to consider the 

impact on Appellant’s permanent disability retirement when deciding his 

sentence. As the CAAF described in Talkington, “[t]he general rule concerning collateral consequences is that ‘courts-martial [are] to concern themselves 

with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty 

under consideration,’” even if the collateral consequences may be referenced 

in an accused’s unsworn statement. 73 M.J. at 215–16 (second alteration in 

original) (quoting United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988)). 

But retirement is different: 

[I]n reality, the impact of an adjudged punishment on the benefits due an accused who is eligible to retire is often the singlemost important sentencing matter to that accused and the sentencing authority. Thus, it is only in a theoretical sense that 

the effect a punitive discharge has on retirement benefits can 

be labeled collateral. Moreover, the impact on benefits -- whatever it may be -- can only be a direct and proximate consequence of the sentence. 
United States v. Easterly, No. ACM 39310 

27

Griffin, 25 M.J. at 424. 

Lastly, we reject Appellee’s contention that Appellant was not prejudiced 

because “his crime was such that a punitive discharge was a foregone conclusion.” While we appreciate the gravity of Appellant’s convicted offense of attempted premeditated murder, we also weigh Appellant’s particular circumstances as a young man who will be released from confinement before he 

turns 30, who faces a lifetime of uncertain educational and employment opportunities, and who must deal with a mental health condition that was permanently aggravated by military service and that, if left untreated, could 

make him a danger to himself and others. The court-martial process provides 

for sentencing by members or a military judge at the election of the accused, 

includes a presentencing proceeding in which the Government, victim, and 

the accused all have the opportunity to be heard, and does not involve sentencing guidelines. Aside from mandatory-minimum punishments, there is no 

aspect of an adjudged sentence that is a foregone conclusion. 

We therefore conclude that the military judge’s failure to instruct sua 

sponte on the impact of a punitive discharge on Appellant’s permanent retirement for physical disability was plain error. We set aside the sentence 

and authorize a sentence rehearing. See Greaves, 46 M.J. at 140. 

F. Timeliness of Appellate Review 

We review de novo whether an appellant has been denied the due process 

right to a speedy post-trial review and appeal. United States v. Moreno, 63 

M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unreasonable delay arises when appellate review is not completed and a decision is 

not rendered within 18 months of the case being docketed. Id. at 142. When a 

case is not completed within 18 months, such a delay is presumptively unreasonable and triggers an analysis of the four factors laid out in Barker v. 

Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the reasons 

for the delay; (3) the appellant’s assertion of the right to timely review and 

appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (citations omitted). 

Appellant’s case was originally docketed with the court on 22 August 

2017. The delay in rendering this decision by 22 February 2019 is presumptively unreasonable. However, we determine no violation of Appellant’s right 

to due process and a speedy post-trial review and appeal. 

Analyzing the Barker factors, we find the length of the delay—seven 

weeks—is not excessively long. The reasons for the delay include the time required for Appellant to file his brief on 9 July 2018 and the Government to 

file its answer on 28 August 2018. The court then specified an issue for the 

parties to brief by 20 February 2019. Appellant has not asserted his right to 

speedy appellate review. With regard to possible prejudice, we recognize that 
United States v. Easterly, No. ACM 39310 

28

Appellant began his seven years of confinement on 25 April 2017. Because of 

our conclusion on the specified issue, we are setting aside the sentence and 

authorizing a sentence rehearing. Having also considered the potential effect 

of appellate delay on a rehearing, we still find no prejudice to Appellant resulting from the delay for the court to complete appellate review of his case. 

Finding no Barker prejudice, we also find the delay is not so egregious 

that it adversely affects the public’s perception of the fairness and integrity of 

the military justice system. As a result, there is no due process violation. See 

United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In addition, we determine that Appellant is not due relief even in the absence of a due process 

violation. See United States v. Tardif, 57 M.J. 219, 223–24 (C.A.A.F. 2002). 

Applying the factors articulated in United States v. Gay, 74 M.J. 736, 744 

(A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), we find the delay in appellate review justified and relief for Appellant unwarranted.

III. CONCLUSION

The findings are AFFIRMED and the sentence is SET ASIDE. A rehearing on the sentence is authorized. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. 

§§ 859(a), 866(c) (2016). 

POSCH, Judge (concurring in the result in part and dissenting in part): 

I agree with my esteemed colleagues in the majority on the resolution of 

Appellant’s six assignments of error and the issue of timely appellate review 

and affirm the findings of guilty of attempted premeditated murder in violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880. However, I respectfully dissent with regard to the majority’s conclusion that the military judge’s failure to instruct on the effect of a punitive discharge on Appellant’s apparent eligibility for permanent disability retirement materially 

prejudiced Appellant’s substantial rights under Article 59(a), UCMJ, 10 

U.S.C. § 859(a).

Ultimately, the court must determine whether any error of law had a

“substantial influence on the sentence” adjudged by the court-martial. See 

United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (concluding that “any 

failure to instruct the members about the impact of a dismissal on future 

[length of service] retirement benefits did not have a substantial influence on 

the sentence.”) (citing Kotteakos v. United States, 328 U.S. 750, 765 (1946)). 

“If so, then the result is material prejudice to Appellant's substantial rights.”

United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005) (setting out the test 

for the erroneous admission or exclusion of evidence). See also United States 
United States v. Easterly, No. ACM 39310 

29

v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009); United States v. Bridges, 66 

M.J. 246, 249 (C.A.A.F. 2008).

Assuming arguendo that the military judge’s failure to sua sponte instruct 

on the impact of a punitive discharge on permanent disability retirement was 

error that was clear or obvious, I cannot conclude, after considering all the 

sentencing evidence and weighing Appellant’s conviction against his sentence, that, if there was error, it was prejudicial.

Appellant never sought the retirement instruction that the majority today 

concludes the military judge was required to give. Nor did the Defense present evidence or argument1 with regard to the effect that a punitive discharge 

would have on Appellant’s eligibility for disability retirement pay that might 

result from the recommendation by the Formal Physical Evaluation Board 

(FPEB) that Appellant was medically unfit to serve,2 distinct from disability 

pay and benefits administered by the Department of Veterans Affairs (VA).3

It was the recognized loss of these latter benefits that was a significant focus 

of Appellant’s sentencing case. The Defense argued that a dishonorable discharge would “strip[ ] [Appellant] of all his [VA] benefits” and that, considering “how expensive [Appellant’s] medications are,” a punitive discharge was 

not in Appellant’s interest or society’s. Nonetheless, the members considered 

Prosecution Exhibits 23 and 24, along with Col DB’s testimony and Appellant’s verbal and written unsworn statements,4 and adjudged a punitive discharge, knowing full well that doing so would deprive Appellant “of substantially all benefits administered by the Department of Veterans Affairs and 

 

1 As the Defense may have deduced, the possibility that an appellant would receive

retirement benefits can be a reason for adjudging a punitive discharge. See, e.g., 

United States v. Stargell, 49 M.J. 92, 93 (C.A.A.F. 1998) (finding no error where the 

appellant was “knocking at retirement’s door” and trial counsel argued the appellant 

“will get an honorable retirement unless you give him a [bad-conduct discharge].”).

2 The fitness determination is made by the Air Force. See 10 U.S.C. § 1201.

3 Col DB testified that a finding of 100 percent disability would afford Appellant access to disability payments as well as medical treatment through the VA system.

4 Appellant explained to the panel in his verbal unsworn statement inter alia:

I will continue to try to get help no matter what the sentence is. I am 

worried though about my ability to continue to receive medication. I 

hope that I can continue to receive medications through the VA. I 

know that it will not be easy to determine what an appropriate sentence is. I ask for your leniency and mercy. I ask that you give me 

hope that I can continue to receive my medication once I leave jail.
United States v. Easterly, No. ACM 39310 

30

the Air Force,” as the military judge properly instructed the members that it 

would.

This was not a case “where the decision to award a punitive discharge 

was such a close call.” See United States v. Luster, 55 M.J. 67, 72 (C.A.A.F. 

2001) (finding prejudicial error in the exclusion of sentencing evidence of the 

appellant’s expected retirement pay after he was convicted of a single specification of wrongful use of marijuana). This case stands in stark contrast to

Luster, where the crime was relatively minor and the appellant “had no record of prior convictions or non-judicial punishments (although he was not a 

perfect airman).” Id. Here, Appellant was convicted of attempting a cruel and 

savage premeditated murder. If not for EE’s decision to not open the door to 

her home, Appellant might have killed her with his eight-inch knife as Appellant intended and then covered up the crime, using his lighter, lighter fluid, 

trash bags, gloves, extra clothes, dust mask, and bottle of bleach.

Because the members were convinced that the more severe punitive discharge was appropriate and knew that a dishonorable discharge would sever 

Appellant’s eligibility for medical treatment from the VA, I find it to be improbable on these facts that Appellant would have fared better and avoided a 

punitive discharge altogether if the military judge had instructed the members sua sponte on the possible loss of disability retirement pay as a result of 

the FPEB’s recommendation.

The majority also finds error affecting Appellant’s substantial rights, in 

part, because of a collateral consequences instruction given by the military 

judge.5 The instruction that the majority finds concerning read, “the consequences that flow from a federal conviction, other than the punishment, if 

any you impose, are collateral consequences of the conviction. The collateral 

consequences stemming from a federal conviction should not be part of your 

deliberations in arriving at a sentence.” The majority concludes that this instruction “in effect directed the members not to consider the impact on Appellant’s permanent disability retirement when deciding his sentence.” (Emphasis added.) I disagree. Had the instruction, in fact, charged that the collateral 

consequences of Appellant’s sentence should not be part of the member’s deliberations, I might be more aligned with the majority’s conclusion. But it did 

not. I would be persuaded to agree with the majority’s conclusion if the in-

 

5 The Government asked for this instruction after Appellant’s mother testified that 

Appellant might have difficulty “finding a job, because of a felony [conviction].” The 

military judge provided the instruction after concluding that her testimony alluded to 

a collateral consequence of Appellant’s court-martial conviction. 
United States v. Easterly, No. ACM 39310 

31

struction directed the members to disregard the consequences of a sentence 

that included a punitive discharge (in conflict with the VA benefits instruction), but it did no such thing. Rather, the military judge properly informed 

the panel that the consequences that flowed from Appellant’s federal conviction—other than, obviously, the punishment itself—were collateral and 

should not be a part of their deliberations. See United States v. Talkington, 

73 M.J. 212, 216–17 (C.A.A.F. 2014) (“Collateral consequences” of a courtmartial conviction are ordinarily not germane to determining an appropriate 

sentence because the collateral consequence “operates independently of the 

sentence adjudged.”). This is in contrast to an “impact on benefits” as a “direct and proximate consequence of the sentence.” Id. at 217 (emphasis added) 

(citing United States v. Griffin, 25 M.J. 423, 425 (C.M.A. 1988)).6 I conclude 

the collateral consequences instruction in Appellant’s case was both proper 

and benign.

I am not persuaded that the military judge’s failure to instruct sua sponte

on the impact of a punitive discharge on Appellant’s permanent retirement 

for physical disability had a substantial influence on the sentence and thus 

materially prejudiced Appellant’s substantial rights. The adjudged dishonorable discharge may not have been a foregone conclusion as Appellee argues, 

but it was not a close call either. See Luster, 55 M.J. at 72. I would not, therefore, set aside the sentence but would instead affirm the sentence as adjudged and approved by the convening authority.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

6 A collateral consequence may be the result of a conviction of a crime or the result of 

a particular sentence. A collateral consequences instruction may address either or 

both (i.e., a “general” collateral consequences instruction in the case of the latter). 

Compare, e.g., United States v. Talkington, 73 M.J. 212, 216–17 (C.A.A.F. 2014) (addressing both conviction and sentence), with, e.g., United States v. Greaves, 46 M.J. 

133, 136–37 (C.A.A.F 1997) (addressing sentence only).