UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

WOLFE, SALUSSOLIA, and ALDYKIEWICZ 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Major JASON A. SCOTT 

United States Army, Appellant 

ARMY 20170242 

Headquarters, I Corps 

Sean F. Mangan, Military Judge 

Colonel Steven C. Henricks, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; James D. Culp, 

Esquire (on brief). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Wayne H. Williams, 

JA; Captain Sandra L. Ahinga, JA (on brief). 

30 October 2018 

---------------------------------- 

MEMORANDUM OPINION 

----------------------------------

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Senior Judge: 

In early 2015, Sergeant First Class (SFC) AM deployed to Afghanistan where 

he served as part of an isolated special warfare unit. Back at Joint Base LewisMcChord (JBLM), Washington, Major (MAJ) Jason A. Scott, appellant, began a 

romantic and sexual relationship with SFC AM’s wife. Given a direct order to stop 

the relationship, MAJ Scott disobeyed the order. He was then charged with adultery 

and disobedience in violation of Articles 92 and 134, Uniform Code of Military 

Justice, 10 U.S.C. §§ 892 and 934 (2016) [UCMJ]. He pleaded guilty to both 

charges, and the military judge sentenced appellant to a dismissal, restriction for 

thirty days, and forfeiture of $3,000 pay per month for three months.1 

 

1

 Pursuant to the pre-trial agreement, the convening authority approved the sentence 

as adjudged. 
SCOTT—ARMY 20170242 

2

Now on appeal, MAJ Scott assigns two errors. Major Scott claims his 

sentence is too severe given his over twenty years of good service. Based on the 

record introduced at trial, it is not too severe, and we find appellant’s dismissal to be 

an appropriate sentence. Major Scott also claims his defense counsel, Captain (CPT) 

JH and CPT MD, provided grossly ineffective assistance in preparing and conducting 

his sentencing case. Major Scott’s second claim has some merit. Perhaps unusually, 

the best evidence of counsels’ deficient performance is contained in the affidavits 

submitted by the government. 

In the end, we are unable to fully resolve the claim of ineffective assistance 

on appeal without more information, and therefore remand the case for a fact-finding 

hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 

(1967). 

BACKGROUND 

 Major Scott is an Apache helicopter pilot. Including enlisted time, he has 

well over twenty years of active service, to include combat deployments. Major 

Scott met Mrs. HM in May of 2015 when she was teaching a spin class on JBLM. 

Soon after, they began a dating relationship. Major Scott began introducing Mrs. 

HM as his girlfriend to co-workers in his office and to his supervisor, Colonel 

(COL) Harvey. 

Mrs. HM is married to SFC AM. Sergeant First Class AM was assigned to the 

19th Special Forces Group. As MAJ Scott was dating Mrs. HM, SFC AM was 

deployed to a remote part of Afghanistan.2

In October 2015, MAJ Scott’s leadership discovered he was dating a married 

woman. Major Scott’s supervisor, COL Harvey, counseled him and gave him an 

order to cease all contact with the sergeant’s wife. Major Scott acknowledged and 

signed the order. 

Major Scott willfully violated the order and continued to have sexual 

intercourse with Mrs. AM in his on-post quarters. The couple also vacationed 

together on a trip to New York. 

Their relationship was not exactly blissful and began to fray as SFC AM’s 

deployment was nearing an end. As the relationship wound down, MAJ Scott began 

sending Mrs. HM a series of harassing text messages. In these messages, MAJ Scott 

 

2

 The parties stipulated MAJ Scott did not know Mrs. HM was married until after 

they had been dating for several months. 
SCOTT—ARMY 20170242 

3

referred to SFC AM by his first name and in disparaging tones. He would send 

numerous messages to Mrs. HM, in turn threatening her, and then professing love for 

her. After being told by her in cold terms to move on, MAJ Scott told Mrs. HM that 

she will become a “whore”, that “no man wants a whore for a wife”, and she will 

regret not being with him. 

On 5 January 2015, MAJ Scott sent Mrs. HM a text-message link to a news 

story about a Special Forces soldier who had been killed in Afghanistan and other 

soldiers who were “trapped.” Using SFC AM’s first name, the message contained a 

single question, “Is [SFC AM] dead?” Mrs. HM responded that she did not know. 

Later, she told appellant that her husband was trapped and surrounded, that members 

of the unit had been killed, and that she would not receive any additional news for 

the next seventy-two hours. 

Major Scott then suggested that she might get lucky if SFC AM were to be 

killed in action. She responded with a two-word explicative. Major Scott then told 

her that if SFC AM survived, he would have appellant’s “leftovers” followed by, 

“But I doubt he will touch you after he knows what you have been doing.” The 

parties stipulated that the relationship ended on 25 January 2016. On 15 February 

2016, in the last text message included as part of the record, MAJ Scott told Mrs. 

HM the following: 

Now that [SFC AM] is home I see you are playing the 

innocent wife. Don’t make me out to be the bad guy. You 

are the one that lied. And I’m not going to let you get 

away with it. 

In a lengthy written unsworn statement submitted to the court-martial, SFC 

AM explained the effect that appellant’s misconduct had on him. He discussed the 

firefight in which two soldiers were killed, and in which MAJ Scott had joked about 

him being killed. He talked about how when he deployed, he left his wife “in the 

care of my brothers” who “wear the same U.S. Army over the left breast pocket of 

their uniforms.” He described a fundamental reshaping of how he viewed and 

trusted Army officers. 

 
SCOTT—ARMY 20170242 

4

LAW AND DISCUSSION 

A. Sentence Appropriateness 

Appellant contends that a sentence of dismissal is inappropriately severe. It 

is not.3 Appellant was convicted of two offenses. Neither crime is minor. Each 

offense individually, on these aggravating facts, could warrant a dismissal. 

As a corollary to extraordinary authority vested in commissioned officers by the 

UCMJ,4 a dismissal is an authorized punishment for every violation of the UCMJ. 

See Rule for Courts-Martial [R.C.M.] 1003(b)(8)(A). An officer may be dismissed 

for offenses that, in the case of an enlisted soldier, could not result in a punitive 

discharge as a matter of law. 

Not every case of adultery is a criminal offense under the UCMJ. Manual for 

Courts-Martial, United States (2016 ed.) [MCM], pt. IV, ¶ 62.c.(2). But, this case 

is. The loss of trust in an institution where trust is critical, the risk and 

consequences of distraction in combat, all underline why certain instances of 

adultery are proscribed. As such cases go, appellant’s conduct is among the worst 

and therefore more likely to be closer to the maximum authorized punishment for the 

offense. 

Moreover, the gravity of appellant’s conduct was compounded when he then 

intentionally disobeyed his colonel’s orders to stop the relationship. “It is the 

commander, not the subordinate, who must assess these competing concerns and 

develop command priorities.” United States v. Rockwood, 52 M.J. 98, 108 (C.A.A.F. 

1999). “Given the destructive weaponry that our nation entrusts to our military 

 

3

 In assessing the appropriateness of appellant’s sentence, we limit ourselves to the 

record of trial as clarified by our superior court. See, e.g., United States v. Healy, 

26 M.J. 394, 396-97 (C.M.A. 1988). On appeal, in order to show his counsel were 

ineffective, appellant submitted awards, commendations, and statements that were 

not introduced by his trial defense team. And, as it turns out, we agree that this 

additional information may be persuasive. But, our review of the appropriateness of 

the sentence is limited to the case as it was tried, not as it could have been tried. 

That is, the record on appeal is different when we consider the question of the 

appropriateness of the sentence than when we consider whether counsel were 

ineffective. 

4

 As one example, Article 90, UCMJ, mandates obedience to a commissioned 

officer’s lawful orders. The oath taken at enlistment requires obedience to “orders 

of the officers appointed over me.” 10 U.S.C. § 502. 
SCOTT—ARMY 20170242 

5

leaders, there is no other way to control and direct the awesome power that is vested 

in the armed forces.” Id. 

Not only did appellant disobey the order, but he did it in a manner that 

aggravated the offense. The text messages sent by MAJ Scott reveal an officer who 

bullies and demands sex, an officer who is profane and sometimes obscene, who 

harasses and threatens, and who mocks the possible death of Mrs. AM’s husband in 

combat. While appellant was not charged with threatening or stalking Mrs. AM, it is 

certainly aggravating that appellant violated COL Harvey’s order in a manner that 

was neither a minor technical violation nor a well-intentioned misstep. 

One must think hard to conjure a worse case of adultery than when a field 

grade officer knowingly has a long-term sexual relationship with the spouse of an 

enlisted soldier who is deployed in combat, and then egregiously disobeys direct 

orders to end the relationship. Appellant’s sentence to dismissal is appropriate. 

B. Ineffective Assistance of Counsel 

 In affidavits submitted on appeal, CPT JH and CPT MD express shock that the 

court-martial adjudged a dismissal. Captain JH describes the sentence as 

“ludicrous” and “unconscionable.” Captain MD similarly describes MAJ Scott’s 

sentence of a dismissal as “unconscionable” and an “absurdity.” 

Reading their affidavits, one cannot help but conclude that counsel prepared 

for the court-martial under the grossly mistaken belief that a dismissal was not a 

plausible outcome. 

Our conclusion that the defense team prepared for a trial based on the 

assumption that a dismissal was not a plausible sentence is not merely based on our 

informed inferences. In his affidavit CPT MD states, “I believed the odds of a 

punitive discharge at this court-martial were so unlikely that the main concern for us 

going into pre-sentencing was hoping to prevent MAJ Scott from serving time in 

confinement.” The pretrial agreement in the case capped confinement at 119 days. 

According to CPT MD, the focus of the defense sentencing case was whether MAJ 

Scott would serve less than 119 days confinement, not on whether he would be 

dismissed and lose a pension and all the associated benefits that flow from being a 

military retiree. 

That a dismissal was a plausible sentence should have been obvious. First, 

this case was not a typical adultery offense. While one might argue a dismissal is 

not a typical sentence for a typical case of adultery, this case was atypical. Second, 

a dismissal is an authorized punishment under R.C.M. 1003, and counsel should 

have prepared accordingly. The court-martial is given the broad discretion to 

adjudge any lawful sentence. See R.C.M. 1002. Third, even if counsel were under a 
SCOTT—ARMY 20170242 

6

mistaken belief that the offenses were minor, there were several pretrial events that 

should have shaken that belief. The preliminary hearing officer rejected 

recommending an alternative disposition of the case and specifically recommended 

trial by general court-marital. The Staff Judge Advocate reviewed the file and 

recommended trial by general court-martial. The pretrial agreement severely limited 

confinement, but contained no restrictions on the convening authority’s ability to 

approve a sentence to a dismissal. 

1. What was MAJ Scott’s sentencing case? 

The defense sentencing case played out as one might expect when counsel 

think the accused’s sentence exposure is limited to 119 days of confinement. 

The defense did not mark or admit a single exhibit. 

Three local witnesses were called. 

Colonel Harvey (whose order MAJ Scott violated) was called to testify about 

his observation of the accused’s duty performance during a seven-month period. 

The colonel testified that the accused submitted work to standard, and sometimes 

above standard. On cross-examination, COL Harvey agreed that MAJ Scott’s 

conduct was so detrimental to good order and discipline that it needed to be snuffed 

out immediately. When asked about whether it was wrong for a field grade officer 

to commit the offenses MAJ Scott had pled guilty to, COL Harvey corrected the trial 

counsel and stated it was wrong for a person of any rank. Finally, COL Harvey 

agreed that MAJ Scott had told him the affair had ended, which was not true. 

The next witness was COL Halverson. Colonel Halverson had replaced COL 

Harvey, and had taken over supervising MAJ Scott. Colonel Halverson supervised 

appellant for six months. During that time, MAJ Scott “perform[ed] tasks as 

assigned.” When asked about his duty performance, COL Halverson testified, “He’s 

completed all of his tasks either on time or ahead of time. He comes into work and 

does what we ask him to do.” While COL Halverson testified that MAJ Scott had 

high rehabilitative potential in or outside of the military, it does not leap off the 

page as a strong endorsement. 

The third and last witness was Chief Warrant Officer Five (CW5) Israel. Mr. 

Israel had also worked with MAJ Scott in the same office as COL Harvey and COL 

Halverson. Mr. Israel testified that he would rank MAJ Scott as “above the middle” 

of the officers with whom he had previously served. 

In summary, all three witnesses were called from appellant’s immediate 

office. All gave a middling assessment of appellant’s performance, and none could 

testify about MAJ Scott’s service that predated his misconduct. None had served 
SCOTT—ARMY 20170242 

7

with him in combat. While a pretrial agreement removed the government’s 

obligation to produce defense witnesses, the defense was free to present evidence 

regarding appellant’s prior service through other means. No witness was called 

telephonically. No witness statement was presented. No fitness report was 

introduced. The only evidence of appellant’s awards and decorations was the list of 

award acronyms contained on his Officer Record Brief (ORB) – which was 

authenticated and introduced by the government. 

The government, in stark contrast, came to trial loaded for bear. The 

government maintained no disillusions as to whether the sentence should include a 

dismissal. The government’s sentencing argument asked for de minimus 

confinement (a fraction of the 119 days authorized by the pretrial agreement) and 

focused entirely on why MAJ Scott should be dismissed from the Army. 

After the sentence was announced, what was not done at trial was later done 

as part of appellant’s R.C.M. 1105 submission. Captain MD submitted hundreds of 

pages of documents for post-trial consideration. Several letters of support were 

submitted. Medical documents were prepared and provided to the convening 

authority for consideration. Major Scott’s post-trial submission lands on our desks 

with twice the thickness of the trial transcript and all exhibits combined.5 

It was not too little, but it was too late. Even were he so inclined, the convening 

authority was not empowered to set aside appellant’s dismissal under Article 60, 

UCMJ.6 

To obtain relief for ineffective assistance of counsel, appellant bears the 

burden of establishing both deficient performance and prejudice. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The difficulty of appellant's burden to 

establish ineffective assistance of counsel — and it is his burden — was summarized 

by the Supreme Court as follows: 

It is all too tempting to second-guess counsel’s 

assistance after conviction or adverse sentence. The 

 

5

 However, the R.C.M. 1105 matters still did not include awards, fitness reports, or 

statements from witnesses who could provide the convening authority with an 

assessment of appellant’s duty performance beyond his current duty location. 

6

 On behalf of appellant, CPT MD requested that as a matter of clemency the 

convening authority make a “recommendation” for a “resentencing.” We are not 

sure what was meant by this. This Court does not order rehearings as a matter of 

clemency. United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010). In any event, 

the convening authority approved the sentence as adjudged. 
SCOTT—ARMY 20170242 

8

question is whether an attorney's representation amounted 

to incompetence under prevailing professional norms, not 

whether it deviated from best practices or most common 

custom. 

Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotations and 

citations omitted). 

In his initial brief to this court, MAJ Scott raises several arguments as to why 

his counsel were deficient. Not all are persuasive.7 We address in detail two 

concerns: the failure to introduce any documentary evidence regarding MAJ Scott’s 

career, and the failure to call witnesses who would testify to MAJ Scott’s service 

before the misconduct and while serving in combat. 

2. Additional information submitted on appeal 

Claims of ineffective assistance of counsel often involve facts not contained 

in the record of trial. It is often the case that trial decisions that appear questionable 

based on the cold appellate record are easily explained when we are informed of 

other facts. For example, counsel may withhold evidence because they fear they will 

open the door to unfavorable character or rebuttal evidence. If the strategy works, 

the record will be silent and counsel’s tactical decision will not be obvious. If a 

client is deceitful or uncooperative with their attorney, the attorney may make 

decisions that in hindsight are questionable or look ill-advised. We order affidavits 

so the counsel have the opportunity to present this court with the full picture. 

Thus, we directed the government to obtain affidavits from CPT MD and CPT JH to 

provide them the opportunity to rebut the allegation they were ineffective. See 

generally United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008). Our order 

directing affidavits was two pages long and required that “at a minimum” the 

affiants address a list of issues raised by appellant’s brief. 

Captain JH’s response was less than a page, terse, and in the end, not at all 

helpful. A third of the response is directed at complaining about the court-martial 

unrelated to our questions or appellant’s claim of ineffective assistance.8 Captain JH 

 

7

 We reject MAJ Scott’s claim that his counsel were deficient in preparing him to 

give his unsworn statement. We also reject MAJ Scott’s claim that his counsel did 

not explain to him that he could call witnesses telephonically as this is directly 

contradicted by the plain language of the pre-trial agreement he signed. 

8

 At trial, the defense objected to the inability to cross-examine a victim’s unsworn 

statement. This objection was repeated in the R.C.M. 1105 submission. Unusually, 

(continued . . .) 
SCOTT—ARMY 20170242 

9

ends his statement by telling this court, “Given the ludicrously disproportionate 

sentence, either the defense team was ineffective or the proceedings were fatally 

flawed, there is no third option.” While we reject being presented with a false 

dilemma, it does not necessarily mean that CPT JH was wrong. 

Like CPT JH, CPT MD all but admitted that he was ineffective, writing “I 

would ask the court to find any of my actions or inactions ineffective in order to 

provide some justice for MAJ Scott.” Whether a counsel is ineffective is an 

objective inquiry. See Harrington v. Richter, 562 U.S. 86, 104 (2011). Regardless 

of whether it is favorable or unfavorable, we give little weight to counsels’ 

subjective assessment of their own performance and instead conduct an objective 

assessment of their performance. Id. at 109-10. “Strickland, however calls for an 

inquiry into the objective reasonableness of counsel’s performance, not counsel’s 

subjective state of mind.” Id. at 110 (citations omitted). We have recently rejected 

a counsel’s admission that he was deficient at trial. See United States v. 

Tovarchavez, 2018 CCA LEXIS 371, at *22-24 (Army Ct. Crim. App. 19 Jul. 2018) 

(petition for cert. granted on other grounds). 

 

(. . . continued) 

given that both counsel are addressing claims they were ineffective, counsel also 

directly address this court in their affidavits asking us to grant relief to MAJ Scott 

for this claimed error. Captain JH writes, “To allow such an unconscionable 

sentence to stand . . . after abrogating MAJ Scott’s constitutional rights to the cross 

examination of witnesses, is a blight on the integrity of the military justice system 

and renders moot any appearance of fairness in the proceedings.” For such a 

strongly held conviction, however, counsel cited no case law, statute or other 

authority for their position. As it turns out, all authority goes the other way. Rule 

for Courts-Martial 1001A(e) specifically allows for unsworn victim statements not 

subject to cross-examination. Both the CAAF and the Supreme Court have stated the 

right to confront adverse witnesses is a trial right that does not extend to sentencing 

proceedings. United States v. McDonald, 55 M.J. 173, 177 (C.A.A.F. 2001) (“it is 

only logical to conclude that the Sixth Amendment right of confrontation does not 

apply to the presentencing portion of a non-capital court-martial.”); Williams v. New 

York, 337 U.S. 241, 245-51 (1949). There is no constitutional right to confront a 

victim’s unsworn statement at sentencing. Id. 

We are left with the impression that counsel wrongly assumed, without conducting 

sufficient legal research and contrary to the plain language of the rule, that they 

would be able to either prevent the admission of the unsworn statement or attack the 

weight of the unsworn statement through cross-examination. 
SCOTT—ARMY 20170242 

10 

Captain MD’s affidavit was, at least by contrast, thorough. Captain MD 

adequately explains that before the pretrial agreement was accepted, the focus of the 

defense effort was heading off the possibility of sexual assault charges. Although 

this could have been laid out in more detail, it is a reasonable tactical decision to 

devote resources and attention to try to take more serious offenses off the table. 

Also adequate is CPT MD’s explanation for preparing the accused’s unsworn 

statement. Captain MD’s explanation for failing to obtain an accounting of the net 

present value of MAJ Scott’s retirement benefits is unconvincing,9 but in this judge 

alone trial, we see no prejudice. 

 

However, CPT MD’s response as to why the defense introduced no evidence 

regarding MAJ Scott’s over twenty-year military service requires more analysis. 

3. Failure to introduce fitness reports and awards

As noted above, the defense did not mark or admit a single document 

regarding MAJ Scott’s over twenty years of service. 

CPT MD explained that the reason no documents or evidence were introduced 

was because “we believed that the information MAJ Scott could provide the court [in 

his unsworn statement] and his extensive deployment record documented on his ORB 

would suffice for pointing to his service record knowing the case was before a 

military judge alone.”10

 

9

 Captain MD stated that because the pretrial agreement was signed only two weeks 

before trial, there was not enough time to obtain an accounting of the value of MAJ 

Scott’s retirement from the Army Audit Agency. We find this explanation 

unconvincing for a few reasons. First, CPT MD elsewhere in the affidavit 

specifically stated that he had discounted the possibility of the court-martial 

adjudging a dismissal and was focused on limiting any term of confinement. 

Second, while the flash-to-bang from referral to trial was relatively quick, the 

defense team had been working on the case for months. Third, counsel did not 

request a continuance. Fourth, the pretrial agreement did not contain a term 

requiring the defense to accept the earliest possible trial date. 

10 Captain MD explained that after requesting MAJ Scott to provide documentary 

evidence regarding his career, the only document provided was an unsigned 

recommendation for a Distinguished Flying Cross that was later downgraded to an 

Air Medal. Captain MD does not explain whether he then followed up with MAJ 

Scott, or why he did not ask appellant to produce his entire personnel file for review 

by his attorney. 
SCOTT—ARMY 20170242 

11 

There is no cookie-cutter template for how to present a presentencing case. 

While presenting a “good soldier book” of an accused’s military accomplishments is 

common, it does not amount to a per se requirement of competent counsel. Not 

every soldier convicted of a crime has a favorable military personnel file worthy of 

showing the factfinder. 

We find two faults with CPT MD’s reasoning. 

First, we find no reasonable tactical reason why counsel did not do more to 

investigate and seek out information regarding appellant’s military career. Major 

Scott devoted over two decades of his life to service for his country. While his ORB 

noted his deployments, it did not tell the court-martial about what MAJ Scott did 

while deployed. A factfinder may give substantially different weight to a 

deployment spent as a staff officer in the relative safety of a major base vice one 

spent as a front line attack pilot who repeatedly flew towards and into direct fire 

engagements with the enemy. 

Counsel will not be able to make an informed decision whether to admit such 

documents without looking at them first. 

Second, there is danger in relying on an unsworn statement to put facts before 

the court-martial. The statement is not under oath and it is not subject to adversarial 

testing. While the court-martial must consider an unsworn statement, the court may 

give it less weight simply because it is unsworn. True, MAJ Scott discussed some of 

his deployments during his unsworn statement. However, when an accused is asked 

to give an unsworn statement as to his own heroics, the unsworn statement may be 

viewed less credibly. This is especially true when the claim of heroics is not 

supported by awards, witnesses, or other confirmatory evidence.

Accordingly, we agree with the spirit behind CPT JH and CPT MD’s selfevaluation of their performance contained in their respective affidavits. But, before 

we can grant relief for ineffective assistance of counsel we must consider 

Strickland’s second prong; whether there is a reasonable probability that the 

sentence would have been different had MAJ Scott’s awards and fitness reports been 

admitted during his sentencing case. 466 U.S. at 687. 

The officer evaluation reports submitted to us on appeal begin when MAJ 

Scott was a lieutenant and extend through the time of the charged offenses. The 

reports sometimes use lofty terms. When compared to the hyperbole that often 
SCOTT—ARMY 20170242 

12 

accompanies such reports, our overall assessment is they are lackluster.11 As a 

court-martial would likely see them in a similar light, we do not find a substantial 

likelihood that if the fitness reports had been submitted the court-martial would not 

have adjudged a dismissal as a sentence. 

Similarly, we find no prejudice from the failure to submit copies of MAJ 

Scott’s awards for the court-martial’s consideration. We were provided a copy of 

the award citations, but not provided the detail that is often found in an award 

recommendation. See Dep’t of Army, Form 638, Recommendation for Award (1 

Apr. 2006). Thus, the information we have is not substantially different than what 

was contained in MAJ Scott’s ORB that the government entered into evidence. 

Accordingly we do not find MAJ Scott met his burden of establishing prejudice for 

the failure to obtain and introduce copies of his fitness reports and awards. 

4. Failure to call witnesses from Major Scott’s prior service 

Our analysis is different when it comes to MAJ Scott’s claim that his counsel 

failed to interview and call sentencing witnesses. 

Appellant swears to us in an affidavit that he told his counsel that COL Fee, 

CW5 Norris, and three other witnesses should testify during his sentencing case. 

Captain MD and CPT JH do not directly contradict appellant, but swear in their 

affidavits that they interviewed every sentencing witness that MAJ Scott brought to 

their attention. Colonel Fee and CW5 Norris, in turn, both swear they were never 

contacted by the defense. 

Obviously, not all claims can be true. 

Colonel David Fee was MAJ Scott’s battalion commander during a fifteenmonth deployment to Iraq. Colonel Fee describes MAJ Scott as “loyal to a fault and 

a fearless warrior who personally saved the lives of countless Americans in combat.” 

As but one example, COL Fee describes a harrowing nine-hour battle in which MAJ 

Scott flew under a 200-foot cloud deck and repeatedly returned to engage and kill an 

enemy who were within small arms range of his aircraft. 

 

11 In the evaluations that were submitted for our consideration, we could not find one 

that ranked MAJ Scott as “above center of mass” or “most qualified.” The senior 

rater comments in an early evaluation began “1LT Scott continues his development 

as a talented and capable attack helicopter platoon leader.” A later senior rater 

comment began, “CPT Jason Scott is an absolutely outstanding officer and in the top 

half of the Captains I senior rate.” 
SCOTT—ARMY 20170242 

13 

Similarly, CW5 Rusty Norris repeatedly flew with MAJ Scott in Afghanistan. 

As the battalion standardization pilot, Mr. Norris was particularly well-suited to 

observe MAJ Scott. Mr. Norris said of MAJ Scott, in a direct comparison to other 

pilots in the battalion, “when the bullets started flying, Major Scott always wanted 

to be in the front at the tip of the spear.” 

The Rules for Courts-martial have specific provisions for introducing 

sentencing evidence regarding an accused’s bravery. Rule for Courts-Martial 

1001(c)(1)(B) allows for an accused to introduce matter in mitigation, and it 

includes “particular acts of good conduct or bravery.” That is, unlike other 

mitigation evidence, evidence of bravery is not limited to one’s reputation and the 

defense may introduce specific acts. 

Accordingly, we cannot avoid the factual dispute contained in the conflicting 

affidavits. Did MAJ Scott tell his attorneys about COL Fee, CW5 Norris, and three 

other witnesses? 

Therefore, we remand this case for an evidentiary hearing pursuant to United 

States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to answer the following 

questions: 

1. Did MAJ Scott tell either CPT JH or CPT MD the names of COL Fee, CW5 

Norris, and the other three witnesses listed in his affidavit? 

2. Did CPT JH or CPT MD contact COL Fee, CW5 Norris, and the three other 

witnesses listed in the affidavit? 

3. If yes to any or all witnesses listed in question (2), was there a strategic or 

tactical reason not to call the witness(es) to testify during pre-sentencing 

proceedings? 

CONCLUSION 

 Upon consideration of the entire record, the findings of guilty are 

AFFIRMED. 

In light of this court’s inability to resolve conflicting affidavits presented on 

appeal, we are unable to affirm the sentence in this case without additional factfinding. The record of trial is returned to The Judge Advocate General for such 

action as is required to conduct a DuBay hearing to answer the three aforementioned 

questions. 

Upon conclusion of the DuBay hearing, the record will be returned to this 

court for further review. 
SCOTT—ARMY 20170242 

14 

Judge SALUSSOLIA and Judge ALDYKIEWICZ concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: