## UNITED STATES ARMY COUR T 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. Henric ks, Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; James D. Culp, Esquire (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major W ayne H. Williams, JA; Captain Sandra L. A hinga, JA (o n brief).

30 October 2018

---------------------------------- MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

In early 2015, Sergeant First Clas s (SFC) AM deplo yed to Afghan istan where he served as part of a n isolated special war fare unit. Back at Joint Base LewisMcChord (JBLM), Washin gton, Major (M AJ) Jason A. Scott, appella nt, began a
romantic and sexual r elationship with SFC AM’s wife. Given a d irect order to stop the relationship, MAJ Scott disobeyed the or der. He was then c harged with adultery
and disobedience in v iolation of Articles 92 and 134, Uniform C ode of Military Justice, 10 U.S.C. § § 892 and 934 (2016) [UC MJ]. He pleaded gu ilty to both charges, and the military judge s entenced appellant to a dismis sal, restriction for thirty days, and forfe iture of $3,000 pay p er month for three m onths. 1

1 Pursuant to the pre-trial agreement, the convening authority approved the sentence as adjudged.SCOTT—ARMY 20170242

2 Now on appeal, MAJ Sco tt assigns two errors . Major Scott claim s his
sentence is too seve re given his ove r twenty years of good serv ice. Based on the
record introduced at trial, it is not too severe, and we find a ppellant’s dismissal to be an appropriate sentence. Major Scott also claims his defense c ounsel, Captain (CPT) JH and CPT MD, provided grossly ineffective assistance in prepa ring and conducting his sentencing case. Major Scott’s second claim has some merit . Perhaps unusually,
the best evidence of counsels’ de ficient performa nce is contain ed in the affidavits submitted by the government.

In the end, we are unable to fully resolve the claim of ineffec tive assistance on appeal without more informati on, and therefore remand the ca se 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 dep loyments. Major Scott met Mrs. HM in May of 2 015 when she was te aching a spin c lass on JBLM. Soon after, they began a dating r elationship. Major Scott bega n introducing Mrs. HM as his girlfriend t o co-workers in his of fice and to his sup ervisor, Colonel (COL) Harvey.

Mrs. HM is married to SFC AM. Sergeant Firs t Class AM was assi gned to the 19th Special Forces Group. As MA J Scott was dati ng Mrs. HM, SF C AM was deployed to a remote part of Afghanistan. 2

In October 2015, MAJ Sc ott’s leadership dis covered he was datin g a married woman. Major Scott’s s upervisor, COL Harve y, counsele d him and gave him an order to cease all contact with the sergeant’s wife. Major Sco tt acknowledged and signed the order.

Major Scott willfully violated the order and continued to have sexual
intercourse with Mrs . AM in his on-post qu arters. The couple a lso vacationed together on a trip to New York.

Their relationship was not exactly blissful and began to fray a s SFC AM’s deployment was nearing an end. As the relation ship wound down, MAJ Scott began sending Mrs. HM a series of harass ing text message s. In these messages, MAJ Scott

2 The parties stipulate d MAJ Scott did not k now Mrs. HM was marr ied until after they had been dating for several months.SCOTT—ARMY 20170242

3 referred to SFC AM by h is first name and in disparaging tones. He would send numerous messages to M rs. HM, in turn threat ening her, and then professin g love for her. After being told by her i n cold terms to move on, MAJ Sco tt told Mrs. HM that she will become a “whore”, that “ no man wants a whore for a wif e”, and she will regret not bei ng with him.

On 5 January 2015, MAJ Scott sent Mrs. HM a text-message link t o a news story about a Special Forces so ldier who had been killed in Afg hanistan and other
soldiers who were “tra pped.” Using SFC AM’ s first name, the me ssage contained a single question, “ Is [SFC AM] dead?” Mrs . HM responded that sh e did not know. Later, she told appellant that her husband was trapped and surr ounded, that members
of the unit had been k illed, and that she w ould not receive any additional news for the next seventy-two hours.

Major Scott then suggested that she might get lucky if SFC AM w ere to be
killed in action. She responded with a two-word explicative. Major Scott then told
her that if SFC AM su rvived, he would have appellant’s “leftove rs” followed by, “But I doubt he will touch you af ter he knows wha t you have bee n doing.” The parties stipulated t hat the relationship ended on 25 J anuary 20 16. On 15 February 2016, in the last text m essage included as p art 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 li ed. And I’m not goi ng to let you get away with it.

In a lengthy written unsworn statement submitted to the court-m artial, SFC AM explained the effec t that appellant’s m isconduct h ad on him. He discussed the firefight in which two soldiers were killed, and in which MAJ S cott had joked about him being killed. He talked abo ut how when he d eployed, he lef t his wife “in the care of my brothers” who “wear the same U.S. Arm y over the left breast pocket of
their uniforms.” He described a fundamental reshaping of how h e viewed and trusted Army officers.SCOTT—ARMY 20170242

4 LAW AND DISCUSSION

A. Sentence Appropriateness

Appellant contends that a sentence of dismissal is inappropriat ely severe. It
is not. 3 Appellant was convicted of two o ffenses. Neither crime is mi nor. Each offense individually, on these a ggravating facts, could warrant a dismissal. As a corollary to extraordinary authority vested in commissione d officers by the UCMJ, 4 a dismissal is an auth orized punishment for every violation of the UCMJ.

See Rule for Courts-Martial [R.C.M. ] 1003(b)(8)(A). An officer ma y be dismissed for offenses that, in the case of an enlisted sol dier, could no t 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 t rust in an institution w here trust i s critica l, the risk and consequences of distraction in combat, all underline why certai n instances of adultery are proscri bed. As such cases go , appellant’s conduct is among the worst and therefore more likely to be closer to the maximum authorize d punishment for the

offense.

Moreover, the gravity of appellant’s conduc t was compounded whe n he then intentionally disobeyed his colo nel’s orders to stop the relati onship. “It is the commander, not the subordinate, w ho must assess these competing concerns and develop command priorities.” United States v. Rockwood , 52 M.J. 98, 10 8 (C.A.A.F. 1999). “Given the des tructive weaponry tha t our nati on entrust s to our military

3 In assessing the appropriateness of appellant’s sentence, we l imit ourselves to the
record of trial as clarifie d by our superi or 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 sta tements that were not introduced by his t rial defense team. A nd, as it turns out , we agree that this additional information may be persuasive. But, our review of t he appropriateness of the sentence is limited to the case as it was tried, not as it could ha ve been tried. That is, the record on appeal is different when we consider the question of the appropriateness of the sentence than when we con sider whether c ounsel were
ineffective.

4 As one example, Article 90, UCMJ, mandates obedie nce to a comm issioned
officer’s lawful orders. The oat h taken at enlist ment requires obedience to “orders of the officers appointed ov er me.” 10 U.S.C. § 502.SCOTT—ARMY 20170242

5 leaders, there is no o ther way to control and direct the awesom e power that is vested
in the armed forces.” Id.

Not only did appellant disobey th e order, but he did it in a ma nner that aggravated the offense. The text messages sent by MAJ Scott re veal an officer who bullies and demands sex, an officer who is p rofane and sometime s obscene, who
harasses and threaten s, and who mocks the possible d eath of Mrs . AM’s husband in combat. While appellant was not c harged with threatening or st alking Mrs. AM, it is certainly aggravating that appel lant violated COL Harvey’s orde r in a manner that
was neither a minor technical vi olation nor a well-intentioned misstep.

One must think hard t o conjure a wor se case of adultery than wh en a field grade officer knowin gly has a long- term sexual re lationship wit h the spouse of an
enlisted soldier who is deployed in combat, and then egregiousl y disobeys direct
orders to end th e relationship. Appellant’s sentence to dismis sal is appropriate.

B. Ineffective Assistance of Counsel

In affidavits submitt ed on appeal, CPT JH and CPT MD express s hock that the
court-martial ad judged a dismissal. Capta in JH describes the s entence as
“ludicrous” and “unconscionable.” Captain MD sim ilarly describ es MAJ Scott’s
sentence of a dismissal as “unco nscionable” and an “absurdity.”

Reading their affida vits, one cannot help but conclude that cou nsel prepared
for the court-martial under the grossly mis taken belief that a dismissal was not a plausible outcome.

Our conclusion that t he defense team prepar ed for a trial based on the assumption that a dism issal was not a plausi ble sentence is not merely based on our informed inferences. In his affidavit CPT MD states, “I believ ed the odds of a punitive discharge at this court-martial were so unlikely that the main con cern for us going into pre-sentencing was hopi ng to prevent MAJ Scott from serving time in confinement.” The pretrial ag reement in the case capped confin ement at 119 days. According to CPT MD, t he focus of the defense sentencing case w as whether MAJ
Scott would serve less than 119 d ays confinement , not on whethe r he would be dismissed and lose a pension and all the associated benefits th at flow from being a military retiree.

That a dismissal was a plausible sentence should have been obvi ous. First,
this case was no t a typical adultery offense. While one might argue a dismissal is not a typical sentence for a typical case of adultery, this cas e was atypical. Second,
a dismissal is an au thorized punishment u nder R.C.M. 1003, and counsel should have prepared accordi ngly. The court-marti al is given the broa d discretion to adjudge any lawful sentence. See R.C.M. 1002. Third, even i f counsel were under aSCOTT—ARMY 20170242

6 mistaken belief that the offenses were minor, there were severa l pretrial events that
should have shaken that belief . The preliminar y hearing office r rejected recommending an alternative disposition of the case and specifi cally recommended trial by general court-marital. The Staff Judge Advocate revie wed the file and recommended trial by general cour t-martial. The pretrial agree ment severely limited confinement, but contai ned no restrictions on the convening aut hority’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 accuse d’s sentence exposure is limited to 119 days of confinement.

The defense did no t mark or admit a single exhibit.

Three local witness es were called.

Colonel Harvey (whose order MAJ Scott violated) was called to t estify about
his observation of the accused’s duty performance during a seve n-month period.
The colonel testified that the a ccused submitted w ork to standa rd, and sometimes
above standard. On cross-examin ation, COL Harve y agreed that M AJ Scott’s
conduct was so detrimen tal to good ord er and discipline that it needed to be snuffed out immediately. Whe n asked about whether it was wrong for a f ield 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. Fina lly, COL Harvey agreed that MAJ Scott had told him the affair had ended, which was not true.

The next witness was COL Halve rson. Colonel Halv erson had repl aced COL Harvey, and had take n over supervising MAJ Scott. Colonel Halv erson supervised appellant for six months. Durin g that time, MAJ Scott “perform [ed] tasks as assigned.” When asked about his duty performance, COL Halverso n 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.” Wh ile COL Halverso n testified tha t MAJ Scott had high rehabilitative potential in or outside of the military, it does not leap off the
page as a stron g endorsement.

The third and last witness was C hief Warrant Off icer 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 a s “above the middle”
of the officers with whom he had previously served.

In summary, all three witnesses were called from appellant’s im mediate office. All gave a middling as sessment of appellant’s performa nce, and none could testify about MAJ Scott’s servic e that predated his misconduct. None had servedSCOTT—ARMY 20170242

7 with him in combat. While a pretr ial agreement removed the gov ernment’s obligation to produce defense witn esses, the defense was free t o present evidence regarding appellant’s prior service throu gh other means. No wi tness was called telephonically. No wit ness statement was p resented. No fitnes s report was introduced. The only evidence of appellan t’s awards and decora tions was the list of award acronyms contai ned on his Officer Reco rd Brief (ORB) – wh ich was
authenticated and introdu ced by the go vernment.

The government, in sta rk contrast, came to trial loaded for bea r. The government maintaine d no disillusions as to whether the sentenc e should include a dismissal. The government’s sen tencing argument asked for de m inimus confinement (a fraction of the 1 19 days authori zed by the pretr ial agreement) and focused entirely on why MAJ Scot t should be dismissed from the Army.

After the sentence w as announced, what was not done at trial wa s later done as part of appellant’s R.C.M. 11 05 submission. Captain MD subm itted hundreds of pages of documents for post-tria l consideration . Several lette rs of support were submitted. Medical documents were prepared and provided to the convening authority for conside ration. Major Scott’ s post-trial submissi on lands on our desks with twice the thickness of the trial transcript and all exhibi ts combined. 5

It was not too l ittle, but it was too late. Even were he so inclined, the convening authority was not empow ered to set aside ap pellant’s dismissal under Article 60,

UCMJ. 6

To obtain relief for ineffective assistance of counsel, appella nt bears the burden of establishing bo th deficient perform ance and prejudice

. Strickland v. Washington , 466 U.S. 668, 687 (1984 ). The difficult y of appellant's burd en to
establish ineffective assistance of counsel — and it is his bur den — was summarized by the Supreme Court as follows:

It is all too tempting t o second-guess counsel’s
assistance after convictio n or adverse se ntence. The

5 However, the R.C.M. 1105 matters still did no t include awards, fitness reports, or statements from witnesses who could provide the convening autho rity with an assessment of appella nt’s duty performance beyond his current d uty location.

6 On behalf of appellant, CPT MD requested that a s a matter of c lemency the convening authority make a “recommendation” for a “resentencing .” We are not
sure what was meant by this. This Court do es not order reheari ngs 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 approv ed the sentence as adjudged.SCOTT—ARMY 20170242

8 question is whether an attorne y's representation amounted to incompetence under prevaili ng professiona l norms, not
whether it deviate d from best practic es or most common

custom.

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

In his initial brief t o this cour t, MAJ Scott rais es several ar guments as to why
his counsel were deficient . Not all are persuasive. 7 We address in detail two
concerns: the failure to introdu ce any documentar y evidence reg arding MAJ Scott’s career, and the failure to call w itnesses who would testify to MAJ Scott’s service
before the misconduct and wh ile serving in combat.

2. Additional information submitted on appeal

Claims of ineffective assistance o f counsel often involve facts not contained
in the record of trial . It is often the case that trial decisi ons that appear questionable based on the cold appe llate record are eas ily explained when we are informed of other facts. For example, counsel may withhold evidence becaus e they fear they will open the door to unfavorable character or rebuttal evidence. I f the strategy works,
the record will be silent and co unsel’s tactical decision will not be obvio us. If a client is deceitful or uncooperative with their attorney, the a ttorney may make
decisions that in hi ndsight are question able or look ill-advise d. We order affidavits
so the counsel have the opportunity t o 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 pag es long and requi red that “at a minimum” the
affiants address a list of issue s raised by appe llant’s brief.

Captain JH’s response w as less than a page , terse, and in the e nd, not at all helpful. A third of t he response is directed at complaining ab out the court-martial unrelated to our questi ons or appellant’s c laim of ineffective assistance. 8 Captain JH

7 We reject MAJ Scott’s claim th at his counsel we re deficient in preparing him to give his unsworn statement. We also reject MAJ Scott’s claim t hat his counsel did not explain to him that he could call witnesses telephonically as this is directly contradicted by the pla in language of the p re-trial agreement h e signed.

8 At trial, the defense objected t o the inability to cross-exami ne a victim’s unsworn statement. This objection was repeated in the R.C.M. 1105 subm ission. Unusually,

(continued . . .)SCOTT—ARMY 20170242

9 ends his statement by telling this court, “Given the ludicrousl y disproportionate sentence, either the defense team was ineffective or the procee dings were fatally flawed, there is no third opti on.” While we reject being prese nted with a false dilemma, it does not necessarily mean that CPT JH was wrong.

Like CPT JH, CPT MD all but adm itted that he was ineffective, w riting “I would ask the court to find any o f my actions or inactions inef fective in order to provide some justice for MAJ Scot t.” Whether a counsel is inef fective is an objective inquiry. See Harrington v. Richter , 562 U.S. 86, 104 (201 1). Regardless of whether it is favorable or unfavorable, we give little weigh t to counsels’ subjective assessment of their own performance and instead cond uct an objective assessment of their performance. Id . at 109-10. “ Strickland , however calls for an inquiry into the objective reason ableness of couns el’s performa nce, not counsel’s subjective state of mind.” Id . at 110 (citations om itted). We have r ecently 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. C rim. App. 19 Jul. 20 18) (petition for cer t. granted on ot her grounds).

(. . . continued) given that both counsel are addr essing claims the y were ineffec tive, counsel also directly address this court in their affidavits asking us to gr ant relief to MAJ Scott
for this claimed error . Captain JH writes , “To allow such an u nconscionable sentence to stand . . . after abrogating MAJ Scott’s constituti onal rights to the cross
examination of witnesses , is a blight on the integrity of the m ilitary justice system and renders moot any appearance of fairness in the proceedings. ” For such a strongly held co nviction, however, counse l cited no case law, s tatute or other authority for their position. A s it turns out, all authority g oes the other way. Rule for Courts-Martial 1001A(e) specifically allows for unsworn vic tim statements not subject to cross-examination. B oth the CAAF and the Supreme Co urt have stated the right to confront adve rse 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 concl ude that the Sixth A mendment right of conf rontation does not apply to the pre sentencing portion of a n on-capital court-marti al.”); Williams v. New

York , 337 U.S. 241, 245-51 (1949)

. There is no constitutiona l right to confront a victim’s unsworn statement at sentencing. Id

.

We are left with the impressi on that counsel wr ongly assumed, w ithout conducting sufficient legal research and c ontrary to the pl ain language of the rule, that they
would be able to either prevent the admissi on of the unsworn st atement 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. Ca ptain MD adequately explains that before the pretrial agreement was acce pted, the focus of the
defense effort was h eading off the possib ility of sexual assaul t charges. Although this could have been laid out in more detail, it is a reasonabl e tactical decision to
devote resources and attention to try to take more serious offe nses off the table. Also adequate is CPT M D’s explanation for pr eparing the accused ’s unsworn statement. Captain MD’s explanation for failing to obtain an a ccounting of the net present value of MAJ S cott’s retirement benefits is unconvincin g, 9 but in thi s judge alone trial, we see no prejudice.

However, CPT MD’s response as t o why the defense introduced no evidence regarding MAJ Scott’s over twenty-year military service require s more analysis.

3. Failure to introduce f itness reports and awards

As noted above, the defense did not mark or admit a single docu ment regarding MAJ Sco tt’s over twenty years of service.

CPT MD explained that the reas on no documents or evidence were introduced
was because “we believe d that the informati on MAJ Scott could p rovide the court [in his unsworn statement] and his extensive deployment record docu mented on his ORB would suffice for pointing to his service record k nowing the ca se was before a military judge alone.” 10

9 Captain MD stated that because the pretrial agreement was sign ed only two weeks before trial, there w as not enough t ime to obtain an accounting of the value of MAJ
Scott’s retirement from the Arm y Audit Agency. W e find this ex planation unconvincing for a few r easons. First, CPT M D elsewhere in the affidavit specifically stated that he had discounted the possibility of t he court-martial adjudging a dismissal and was foc used on limiting any term of c onfinement. Second, while the flash -to-bang from referr al to trial was rela tively quick, the defense team had been working on the case for mon ths. Third, c ounsel did not request a conti nuance. Fourth, the pret rial agreement did not contain a term requiring the defense to accept the earliest possible trial dat e.

10 Captain MD explained t hat after requesting MAJ Scott to provid e documentary evidence regarding his career, the only document provided was a n unsigned recommendation for a Distinguishe d Flying Cross that was later downgraded to an Air Medal. Captain MD does not explain whe ther he then followe d up with MAJ Scott, or why he did not ask app ellant to produce his entire pe rsonnel file for review by his attorney.SCOTT—ARMY 20170242

11 There is no cookie-cutte r template for how to present a present encing case. While presenting a “g ood soldier book” of an accused’s military accomplishments is common, it does no t amount to a per se requirement of competent counsel. Not every soldier convicted of a crime has a favorable military per sonnel file worthy of showing the factfinder.

We find two faults wit h CPT MD’s reasoning.

First, we find no reasonable tactical rea son why counsel did no t do more to investigate and seek out inform ation regarding appellant’s mili tary career. Major
Scott devoted over two decades of his life to service for his c ountry. While his ORB noted his deploym ents, it did not tell th e court-martial about what MAJ Scott did while deployed. A factfinder ma y give substantia lly different weight to a deployment spent as a staff officer in t he 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 mak e an informed decision whether t o admit such
documents without looki ng at them first.

Second, there is danger in relying on a n unsworn sta tement to p ut facts before
the court-martial. The stateme nt is not under oa th and it is n ot subject to adversarial testing. While the cou rt-martial must consi der an unsworn stat ement, the court may give it less weight simply because it is unsworn. True, MAJ Sc ott discussed some of his deployments during his unswo rn statement. However, when an accused is asked to give an unsworn statement as to his own heroic s, the unsworn statement may be viewed less credibly. This is e specially true when the claim o f heroics is not supported by awards, witnesses, or other confirma tory evidence.

Accordingly, we agree with the s pirit behind CPT JH and CPT MD’ s selfevaluation of their performance contained in the ir respective a ffidavits. But, before we can grant relief for ineffect ive assistance of counsel we mu st consider

Strickland’s second prong; whether there is a reasonable probability that th e sentence would hav e been different had MAJ Scott’s awards and f itness reports been admitted during his sentenc ing case. 466 U .S. at 687.

The officer evaluation reports su bmitted to us on appeal begin when MAJ
Scott was a lieutenant and ext end through the time of the charg ed offenses. The reports sometimes use lofty terms. When com pared to the hyperb ole that oftenSCOTT—ARMY 20170242

12 accompanies such repor ts, our overall asse ssment is they are la ckluster. 11 As a court-martial would likely see them in a similar light, we do n ot find a substantial
likelihood that if the fitness repor ts had been s ubmitted the c ourt-martial would not have adjudged a dismissal as a sentence.

Similarly, we find no prejudice from the failure to submit copi es of MAJ
Scott’s awards for the court-mar tial’s considera tion. 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, Recom mendation 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 in to evidence. Accordingly we do not find MAJ Scott met h is burden of establis hing prejudice for

the failure to obtai n and introduce copies of his fitness repor ts and awards.

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

Our analysis is different when it comes to MAJ S cott’s claim th at his counsel
failed to interview and call sentencing witnesses.

Appellant swears to us in an aff idavit that he t old his counsel that COL Fee, CW5 Norris, and three other witne sses should testify during his sentencing case. Captain MD and CPT JH do not directly contradict appellant, but swear in their affidavits that they i nterviewed every sen tencing witness that MAJ Scott brought to
their attention. Colonel Fee and CW5 Norris, in turn, both swe ar they were never contacted by th e defense.

Obviously, not all cl aims 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 des cribes a harrowing nine-hour bat tle in which MAJ
Scott flew under a 200-foot clou d deck and r epeatedly returned to engage and kill an enemy who were within small ar ms range of his aircraft.

11 In the evaluations that were sub mitted for our co nsideration, we could not find one
that ranked MAJ Scott as “above center of mass” or “most qualif ied.” The senior rater comments in an early evalu ation began “1LT Scott continue s his development as a talented and capable attack helicopter platoon leader.” A later senior rater comment began, “CPT Jason Scott i s an absolutely outstanding of ficer and in the top half of the Captains I senior rate.”SCOTT—ARMY 20170242

13 Similarly, CW5 Rusty Norris repeat edly flew with MAJ Scott in A fghanistan.
As the battalion standardization pilot, Mr. Norris was particul arly well-suited to
observe MAJ Scott. Mr . Norris said of MAJ S cott, in a direct c omparison to other pilots in the battalion, “when t he bullets start ed flying, Majo r Scott always wanted
to be in the front at th e tip of the spear.”

The Rules for Courts-m artial have specific provisions for intro ducing sentencing evidence re garding an accused’s b ravery. Rule for C ourts-Martial 1001(c)(1)(B) allows for an accu sed to introduce matter in miti gation, 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 introdu ce specific acts.

Accordingly, we cannot avoid the factual di spute contained in t he conflicting affidavits. Did MAJ Scott tell his attorneys about COL Fee, CW 5 Norris, and three
other witnesses?

Therefore, we remand this case f or an evidentiar y hearing pursu ant to United States v. DuBay , 17 U.S.C.M.A. 147, 37 C .M.R. 411 (1967), to answer the follow ing questions:

1. Did MAJ Scott tell either CPT JH or CPT MD the names of COL Fee, CW5 Norris, and the other three wit nesses listed in his affidavit?

2. Did CPT JH or CPT M D contact COL Fee, C W5 Norris, and the t hree other
witnesses listed in the affidavit?

3. If yes to any o r all witnesses listed in questi on (2), was t here a strategic or
tactical reason not to call the witness(es) to testify during p re-sentencing proceedings?

CONCLUSION

Upon consideration of the entire record, the find ings of guilt y are AFFIRMED.

In light of this court’s inability to resolve conflicting affid avits presented on appeal, we are unable to affirm the sentence in this case witho ut additional factfinding. The record o f 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 conclusi on of the DuBay hearing, the record will be returned to this
court for further review.SCOTT—ARMY 20170242

14 Judge SALUSSOLIA and Ju dge ALDYKIEWICZ concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: