UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39374

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UNITED STATES

Appellee

v.

Benjamin L. Hann

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

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Appeal from the United States Air Force Trial Judiciary

Decided 8 April 2019

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Military Judge: John C. Harwood (arraignment), Donald R. Eller, Jr.

(trial).

Approved sentence: Bad-conduct discharge, confinement for 4 years, 

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

adjudged 5 May 2017 by GCM convened at Ramstein Air Base, Germany. 

For Appellant: Major Todd M. Swensen, USAF.

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

Before JOHNSON, DENNIS, and LEWIS, Appellate Military Judges.

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

Judge JOHNSON and Judge LEWIS joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

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DENNIS, Judge:

Appellant was convicted, in accordance with his pleas, of two specifications of dereliction of duty, one specification of false official statement, and 
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one specification of obstruction of justice in violation of Articles 92, 107, and 

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 934. 

Contrary to his pleas, Appellant was also convicted of one specification of 

negligent homicide in violation of Article 134, UCMJ.1 A panel of officer 

members sentenced Appellant to a bad-conduct discharge, confinement for 

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

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

At the core of this case is the tragic death of SSgt SD, who was riding on 

his bicycle when Appellant’s vehicle struck and killed him on a road near 

Ramstein Air Base, Germany. Appellant does not contest that he caused 

SSgt SD’s death but contests the extent of his culpability. Appellant raises 

three issues on appeal: (1) whether the military judge abused his discretion 

by not admitting under Military Rule of Evidence 803 a statement made by 

Appellant; (2) whether Appellant’s conviction for negligent homicide was factually and legally sufficient; and (3) whether an 80-day violation of the 120-

day post-trial processing standard from the completion of trial to action warrants relief pursuant to United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).

We find no prejudicial error and affirm.

I. BACKGROUND

On 26 March 2016, Appellant and several other Airmen left Ramstein Air 

Base and headed to a nearby restaurant for dinner. The Airmen rode in two 

separate vehicles. Appellant was driving the first vehicle with Airman First 

Class (A1C) JB as his only passenger. Senior Airman (SrA) DC was driving

the second vehicle with three other Airmen as his passengers. 

The distance from the base to the restaurant was short. To get there, the 

Airmen took two local highways, including one known as K-25, which contained only two lanes, one per direction of traffic. Appellant’s designated lane 

was on the right side of the road, but he used the opposing lane to pass other 

vehicles, sometimes two or three at a time, that were traveling at slower 

rates of speed. Appellant returned to his designated lane when the pass was 

complete. SrA DC, who was following closely behind Appellant, completed 

each pass just as Appellant did. The K-25 highway contained various speed 

limits ranging from 50 kilometers per hour (or approximately 31 miles per 

hour) to 100 kilometers per hour (or approximately 62 miles per hour). All of 

 

1 Appellant was acquitted of one specification of reckless operation of a vehicle and 

one specification of involuntary manslaughter in violation of Articles 111 and 119, 

UCMJ, 10 U.S.C. §§ 911, 919.
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the Airmen reported traveling “fast” but varied in their estimations of the 

speed the cars were traveling. Their estimations ranged from 40 to 60 miles 

per hour. 

At one point, Appellant, who was driving a Ford Mustang, attempted to 

pass a sport utility vehicle (SUV) just before a blind right-hand curve on K25. The manner in which Appellant completed this pass was the crux of the 

dispute at Appellant’s trial. What was not in dispute was that when Appellant saw SSgt SD riding his bicycle towards Appellant, Appellant’s Mustang 

almost immediately struck the bicycle, causing SSgt SD to hit the driver’s 

side of Appellant’s windshield, fly through the air, and land in a ditch against 

a fence just outside an ammunition depot. The ammunition depot gate guard 

saw Appellant’s car drive past the gate and noticed that it was “definitely 

faster” than the other vehicles on the road. The gate guard did not see the 

collision, but he heard the impact, saw SSgt SD’s body fly through the air,

and rushed out of the gate to assist SSgt SD. Appellant and SrA DC both 

stopped their vehicles and also rushed to SSgt SD’s aid. 

By all accounts, Appellant became frantic after the collision. He began 

crying, yelled for someone to call emergency services, and even pleaded with

two of his fellow Airmen to “take the fall” for the collision because Appellant 

“had a family and a kid.” By the time emergency services arrived, SSgt SD 

had no pulse. SSgt SD was later pronounced dead due to the multiple injuries 

he sustained when he was struck by Appellant’s car.

II. DISCUSSION

A. Exclusion of Evidence

Appellant asserts that the military judge abused his discretion by excluding a statement Appellant purportedly made about whether SSgt SD was in 

Appellant’s lane just before the collision. We find that the military judge did 

not abuse his discretion.

1. Additional Background

A1C JB, Appellant’s passenger, testified during his direct examination 

that, as they were passing the SUV, Appellant made a statement to “make 

the presence of the biker known.” Although A1C JB could not recall Appellant’s exact words, he said that “[i]t was something to the effect, like, ‘Look at 

this guy’ or like, ‘F[**]king biker’ or something.” During the crossexamination of A1C JB, trial defense counsel attempted to elicit a different

statement Appellant purportedly made to A1C JB. Specifically, trial defense 

counsel sought to admit evidence that Appellant told A1C JB the bicyclist 

was in Appellant’s lane just before the collision. When trial counsel objected 

to the evidence as impermissible hearsay, trial defense counsel responded 
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that the evidence was not being offered for its truth and engaged in the following colloquy with the military judge:

DC: Sir, essentially, it’s our theory that: Yes, there was a 

statement made about the location, the presence of the 

biker in the road, but that [A1C JB] is confused about as 

to when that statement was made, whether it was made 

in the car prior to the impact or whether it was made during this discussion afterwards.

MJ: Do you want to call him back in and ask him those questions? I am not going to let you testify. I appreciate your 

theory. I appreciate theme or where you might want to go, 

but right now, there’s a hearsay objection. The hearsay 

objection has to do with your client’s statements or comments to the witness, on the road, outside of the car. So, 

help me understand how you overcome a hearsay objection?

DC: Essentially, sir, we are saying that that statement has already been offered through the government. What were 

[sic] simply trying to elicit through him is the matter of 

the timing; and the fact that there is the possibility that 

he is confused as to when that statement is made.

MJ: Well, how about this: How about if you ask [A1C JB] that 

statement. “[A1C JB], Airman Hann made some other 

comments to you on the road, correct?” No substance. “Is 

it possible you are confused, that he made a statement 

about the biker, either in the car or while you are on the 

street or while you were standing next to the body[?]” 

That’s the cross-examination, isn’t it? 

When the military judge again invited trial defense counsel to offer an exception to the hearsay rule, trial defense counsel asserted that the testimony 

would be admissible under “the rule of completeness.” See Mil. R. Evid. 106. 

The military judge sustained trial counsel’s objection.

2. Law and Analysis

a. Standard of Review

As a threshold matter, we first address the dispute regarding the appropriate standard of review. Appellant asserts that we should review the military judge’s ruling for an abuse of discretion while the Government asserts 

that the appropriate standard of review is plain error. In light of United 
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States v. Palmer, 55 M.J. 205, 207–08 (C.A.A.F. 2001), we review the military 

judge’s ruling for an abuse of discretion.

The appropriate standard by which we review evidentiary rulings tends to 

center on one question: whether an issue was properly preserved at trial.

When a military judge’s ruling excludes evidence, Military Rule of Evidence 

103(a)(2) requires a party to make the substance of the evidence known to the 

military judge “by an offer of proof, unless the substance was apparent from 

the context.” Here, the Defense attempted to offer Appellant’s statement at 

trial, but did so using entirely different theories of admissibility than Appellant now offers on appeal. At trial, Appellant first asserted that the statement was not being offered for its truth and later asserted that the statement

was admissible under the “rule of completeness.” On appeal, Appellant asserts that the statement fell under two exceptions to the hearsay rule: present sense impression under Military Rule of Evidence 803(1) and excited utterance under Military Rule of Evidence 803(2). “[I]f evidence is excluded at 

trial because it is inadmissible for the purpose articulated by its proponent, 

the proponent cannot challenge the ruling on appeal on the ground that the 

evidence could have been admitted for another purpose.” Palmer, 55 M.J. at

207–08 (citing United States v. Hudson, 970 F.2d 948, 957 (1st Cir. 1992)). 

In Palmer, the United States Court of Appeals for the Armed Forces 

(CAAF) addressed a similar issue involving whether the defense counsel had 

adequately preserved for appeal its objection to the military judge’s exclusion 

of evidence. The Army Court of Criminal Appeals reviewed the military 

judge’s ruling for plain error. The CAAF reviewed the military judge’s ruling 

for an abuse of discretion but found that, “[b]ecause of defense counsel’s 

vague and misdirected proffer, we hold that the military judge did not abuse 

his discretion by sustaining the Government’s objection to the evidence.”

Palmer, 55 M.J. at 208 (citing Means, 24 M.J. at 163).2 In light of Palmer, we 

review the military judge’s ruling for an abuse of discretion.

b. Admissibility of Hearsay Statements

As the CAAF did in Palmer, we consider two factors in analyzing whether 

the military judge abused his discretion. The first is whether Appellant 

properly brought the issue to the military judge’s attention. The second is 

whether the evidence falls under one of the exceptions to the hearsay rule.

 

2 In Palmer, the CAAF granted review on “[w]hether the United States Army Court 

of Criminal Appeals erred in ruling that [the] appellant had failed to establish that 

the military judge committed plain error . . . .” 55 M.J. at 206. The CAAF did not address whether it was error to apply the plain error standard. 
United States v. Hann, No. ACM 39374

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There can be no argument that Appellant failed to bring the exceptions he 

now relies on to the military judge’s attention. When the military judge 

repeatedly attempted to determine whether a hearsay exception applied, trial 

defense counsel offered none. Trial defense counsel also failed to establish

specifically when or how Appellant made the statement that the Defense was 

seeking to have admitted. Without this evidence, the military judge was not 

required to apply the present sense impression or excited utterance exception 

to hearsay. “Military judges are not expected to be clairvoyant. When the 

basis for admissibility is not obvious, ‘an offer of proof is required to clearly 

and specifically identify the evidence sought to be admitted and its 

significance.’” Palmer, 55 M.J. at 207 (citing United States v. Means, 24 M.J. 

160, 162–63 (C.M.A. 1987)). 

The Military Rules of Evidence provide several exceptions to the rule 

prohibiting the use of hearsay statements during in-court testimony. As 

previously mentioned, Appellant now asserts that two of these exceptions 

applied in his case: the present sense impression exception and the excited 

utterance exception. Military Rule of Evidence 803(1) defines the present 

sense impression exception as a “statement describing or explaining an event 

or condition, made while or immediately after the declarant perceived it.”

Military Rule of Evidence 803(2) defines the excited utterance exception as a 

“statement relating to a startling event or condition, made while the 

declarant was under the stress of excitement that it caused.” Though the 

exceptions are distinct, both are rooted in the notion that such statements are 

inherently reliable because the declarant lacks the opportunity to fabricate in 

such circumstances. See United States v. Jones, 30 M.J. 127, 129 (C.M.A. 

1990); United States v. Brown, 48 M.J. 578, 582 (A. Ct. Crim. App. 1998) 

(quoting Stephen A. Saltzburg, et al., Military Rules of Evidence Manual 942 

(4th ed. 1997)).

Appellant claims that both exceptions applied to the excluded statement 

about which lane SSgt SD was in just before the collision because Appellant 

made the statement immediately after the collision and while under the 

stress of having killed SSgt SD. Appellant asserts that he “described or 

explained the event of his vehicle and SSgt [SD] colliding immediately after

the event, i.e., after they ran to the ditch and saw SSgt [SD]’s body lying 

there.” Appellant’s assertion is not supported by the record. With respect to 

the timing of the excluded statement, A1C JB testified that Appellant made 

the statement sometime after Appellant and A1C JB were out of the vehicle, 

but “[i]t wasn’t immediately after.” In sustaining the objection, the military 

judge noted that the statement was made “[a]t some unknown time.” With 

respect to the manner in which Appellant made the excluded statement, A1C 

JB testified that Appellant made the statement during a “general like

overview of what went down.” Appellant points to his attempts to get his 
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friends to take responsibility for the collision as evidence that he was under 

the stress of the collision. Though stress may have contributed to his actions, 

Appellant’s plea of guilty to obstruction of justice also demonstrates that 

Appellant was taking advantage of his opportunity to fabricate before law 

enforcement officials arrived. 

In the end, it is Appellant’s burden as the proponent of the evidence to establish the basis for its admissibility. Palmer, 55 M.J. at 208 (citing United 

States v. Shover, 45 M.J. 119, 122 (C.A.A.F. 1996)). Appellant failed to meet 

his burden both at trial and on appeal.

We find that the military judge did not abuse his discretion in excluding 

Appellant’s statement.

B. Legal and Factual Sufficiency of Negligent Homicide Conviction

Appellant next asserts that the evidence was legally and factually insufficient to prove beyond a reasonable doubt: (1) that Appellant was negligent 

and (2) that Appellant’s actions were prejudicial to good order and discipline 

and service discrediting. We disagree.

We review issues of both legal and factual sufficiency de novo, but the test 

for each is distinct. The test for legal sufficiency 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, 325 (C.M.A. 1987) (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). “The test for factual sufficiency ‘is whether, after weighing the evidence and making allowances for not having personally observed the witnesses, [we ourselves are] convinced of the [appellant]’s guilt beyond a reasonable doubt.’” United States v. Reed, 54 M.J. 37, 41 

(C.A.A.F. 2000) (quoting Turner, 25 M.J. at 325). In this unique appellate 

role, we apply neither the presumption of innocence nor guilt, but rather 

make our own “independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.” United 

States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

We apply these tests to the issues raised by Appellant in turn.

1. Negligence

In order to prove that Appellant committed negligent homicide, the Government was required to prove, inter alia, that Appellant’s actions that 

caused SSgt SD’s death amounted to simple negligence. 

Simple negligence is the absence of due care, that is, an act or 

omission of a person who is under a duty to use due care which 

exhibits a lack of that degree of care of the safety of others 
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which a reasonably careful person would have exercised under 

the same or similar circumstances.

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

85c(2).

Appellant argues that the “vastly different” conclusions reached by the 

government and defense experts regarding whether Appellant was in his designated lane at the point of impact rendered the evidence insufficient to prove 

that Appellant’s conduct amounted to simple negligence. But we need not resolve the dispute over whether Appellant was in the wrong lane. The Government introduced several other facts to prove that Appellant failed to exhibit due care. We highlight two such facts in our analysis. 

First, Appellant was traveling too fast. Though there was much debate 

about the speed at which Appellant was traveling, the slowest speed—

proffered by the Defense accident reconstruction expert—was still approximately 40 miles per hour, nearly 9 miles over the posted speed limit. 

Second, Appellant did not exercise due care in passing the SUV just before the blind curve. Appellant argues that “it would have been impossible for 

[him] to know that a bicyclist was riding near the [painted] median of the 

road on a curve with limited direct line of sight.” But Appellant fails to 

acknowledge that the limitations imposed by the curve were precisely the 

reason why, in deciding to pass the SUV just before the curve, he exhibited a 

lack of due care. At trial, Appellant relied heavily on the fact that SrA DC, 

the driver of the other vehicle, was not punished for his similar driving maneuvers on 26 March 2016. Notably, when SrA DC was asked why he chose 

not to pass the SUV as Appellant had done, he responded, “The road was a 

bit narrow and it didn’t seem like a good idea.” Appellant, on the other hand, 

chose to pass a larger vehicle while approaching a blind curve on the K-25.

Under these circumstances, we find that Appellant failed to exhibit the 

“degree of care of the safety of others which a reasonably careful person 

would have exercised under the same or similar circumstances” and thus was 

negligent. 

2. Terminal Element 

In order to prove that Appellant committed negligent homicide, the Government was required to prove, inter alia, that Appellant’s conduct was prej-
United States v. Hann, No. ACM 39374

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udicial to good order and discipline and of a nature to bring discredit upon 

the armed forces.3

‘“Conduct prejudicial to good order and discipline’ is conduct which causes 

a reasonably direct and obvious injury to good order and discipline.” Military 

Judges’ Benchbook, Dept. of the Army Pamphlet 27–9 at 857 (10 Sep. 2014).

Acts that are prejudicial to good order and discipline must be directly prejudicial, not “prejudicial in a remote or indirect sense.” 2016 MCM, pt. IV, ¶

60c(2)(a). Here, a junior ranking Airman had a front row seat to Appellant’s 

misconduct. Appellant was also aware that a separate car full of Airmen was 

following his lead to the restaurant. We are persuaded that Appellant’s conduct in the presence of other servicemembers is a sufficiently direct and obvious injury to good order and discipline.

“‘Service discrediting conduct’ is conduct which tends to harm the reputation of the service or lower it in public esteem.” Benchbook, at 857. “Whether 

conduct is of a ‘nature’ to bring discredit upon the armed forces is a question 

that depends on the facts and circumstances of the conduct, which includes 

facts regarding the setting as well as the extent to which Appellant’s conduct 

is known to others.” United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 

2011). Having previously discussed the Government’s evidence at length, we 

hasten to our conclusion. The Government’s evidence sufficiently established 

that Appellant’s negligent conduct that occurred on a public road while he 

was assigned to an overseas duty location and that resulted in the death of a 

fellow Airman was of a nature to bring discredit upon the armed forces.

Drawing “every reasonable inference from the evidence of record in favor 

of the prosecution,” the evidence is legally sufficient to support Appellant’s 

conviction beyond a reasonable doubt. United States v. Barner, 56 M.J. 131, 

134 (C.A.A.F. 2001) (citations omitted). After taking a fresh, impartial look at 

the evidence, making our own independent determination as to whether the 

evidence constitutes proof of the required elements of negligent homicide, and 

making allowances for not having personally observed the witnesses, we are 

convinced of Appellant’s guilt beyond a reasonable doubt.

 

3 On appeal, the Government asserts that it was only required to prove that Appellant’s conduct was “to the prejudice of good order and discipline in the armed forces 

or was of a nature to bring discredit upon the armed forces.” (Emphasis added.) In 

this case, the Government charged that Appellant’s conduct was “to the prejudice of 

good order and discipline in the armed forces and of a nature to bring discredit upon 

the armed forces.” (Emphasis added.) The Government was therefore required to 

prove both parts of the terminal element.
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C. Post-Trial Processing Delay

It took 200 days from the day Appellant was sentenced for the convening 

authority to take action. Appellant asks this court to reduce his confinement 

to three years based on this presumptively unreasonable 80-day delay. We 

decline to do so.

Where the convening authority’s action is not taken within 120 days of 

the end of trial, we apply the presumption of unreasonable post-trial delay 

established by the CAAF in United States v. Moreno, 63 M.J. 129, 142 

(C.A.A.F. 2006). We review de novo whether Appellant’s due process rights 

were violated because of post-trial delay. Id. at 135 (citations omitted). In 

conducting our analysis, we consider the four factors set forth in Barker v. 

Wingo, 407 U.S. 514, 530–32 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) Appellant’s assertion of the right to timely review and 

appeal; and (4) prejudice. “[These] four factors are balanced, with no single 

factor being required to find that post-trial delay constitutes a due process 

violation.” Moreno, 63 M.J. at 136 (citing Barker, 407 U.S. at 533; Simmons v. 

Reynolds, 898 F.2d 865, 868 (2d Cir. 1990)). We apply these factors in turn.

The first factor, the length of the delay, weighs in Appellant’s favor because the Government exceeded the Moreno standard for a presumptively unreasonable delay by 80 days. 

The second factor, the reasons for the delay, weighs slightly in Appellant’s 

favor. Though the Government points to unanticipated issues in transcribing 

Appellant’s trial, including the court reporter’s workload, the reasons for the 

delay cannot be attributed to Appellant. 

The third factor, whether Appellant exercised his right to speedy posttrial processing, weighs slightly in favor of Appellant. Though the record is 

void of any particular demand for speedy post-trial processing, Appellant 

previously requested relief for the violation of his right to speedy post-trial 

processing, albeit 190 days after the conclusion of his trial.

As to the final factor, prejudice, Moreno sets forth three types of prejudice 

arising from post-trial processing delays. 63 M.J. at 138–39. The first, oppressive incarceration, does not apply to Appellant because he does not prevail in his substantive appeal. Id. at 139. The second, anxiety and concern, is 

likewise inapplicable to Appellant. Appellant’s assertion that the post-trial 

delay “put off timely resolution of the issues raised by Appellant” does not 

rise to the level of “particularized anxiety or concern that is distinguishable 

from the normal anxiety experienced by prisoners awaiting an appellate decision.” Id. at 140. The third and final factor, impairment of the appellant’s 

ability to present a defense at a rehearing, is mooted by Appellant’s failure to 
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prevail in his substantive appeal. Id. Prejudice, then, weighs in the Government’s favor.

Where, as here, there is no discernible prejudice from the delay, there is 

no due process violation unless the delay is so egregious as to “adversely affect the public’s perception of the fairness and integrity of the military justice 

system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Considering the relevant factors together, we conclude that the 200 days that elapsed 

between the conclusion of trial and the convening authority’s action are not 

so egregious as to impugn the fairness and integrity of the military justice 

system.

Appellant also asks us to consider whether Tardif relief for excessive posttrial delay is appropriate in this case even in the absence of a due process violation. 57 M.J. at 225. 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 set forth the following factors to determine whether Tardif relief was warranted:

1. How long did the delay exceed the standards set forth in 

Moreno?

2. What reasons, if any, has the government set forth for the 

delay? Is there any evidence of bad faith or gross indifference to 

the overall post-trial processing of this case?

3. Keeping in mind that our goal under Tardif is not to analyze 

for prejudice, is there nonetheless some evidence of harm (either to the appellant or institutionally) caused by the delay?

4. Has the delay lessened the disciplinary effect of any particular aspect of the sentence, and is relief consistent with the dual 

goals of justice and good order and discipline?

5. Is there any evidence of institutional neglect concerning 

timely post-trial processing, either across the service or at a 

particular installation?

6. Given the passage of time, can this court provide meaningful 

relief in this particular situation?

Gay, 74 M.J. at 744.

Appellant does not point to any factor in particular but cites our sister 

court’s opinion in United States v. Collazo, 53 M.J. 721, 725 (A. Ct. Crim. 

App. 2000), to emphasize that “[a] timely, complete, and accurate record of 

trial is a critical part of the court-martial process.” In Collazo, the Army court 

granted four months of confinement relief to remedy a variety of post-trial 

processing errors, including the Government’s failure to provide the appellant 
United States v. Hann, No. ACM 39374

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with a copy of the record prior to authentication as required by Rule for 

Court-Martial (R.C.M.) 1103, its failure to provide a complete copy of the record of trial for use in preparing R.C.M. 1105 matters, as well as the 10-month 

delay in preparing the 519-page record of trial. Here, Appellant points only to 

the less than 3-month delay in preparing the 1,504-page record of trial and 

asks for a one-year reduction in his sentence.

After considering the factors enumerated in Gay, we conclude that relief 

is not warranted. On the whole, the processing of Appellant’s case has not 

been subjected to excessive post-trial delay, and we perceive no substantial 

harm to Appellant, prejudice to the interests of justice or discipline, or erosion of this court’s ability to conduct our review or grant appropriate relief 

that would move us to modify an otherwise fitting sentence.

III. CONCLUSION

The approved findings and sentence are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. 

Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c) (2016). Accordingly, the findings and the sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court