UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CELTNIEKS. And BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant First Class PAUL E. THOMAS 

United States Army, Appellant 

ARMY 20150269 

Headquarters, Fort Bliss 

Timothy F. Hayes, Military Judge 

Colonel Karen H. Carlisle, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Andres Vazquez, 

Jr., JA; Major Daniel E. Goldman, JA (on brief). 

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

JA; Major Anne C. Hsieh, JA; Captain Steve T. Nam, JA (on brief). 

24 October 2016 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

TOZZI, Senior Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of willful disobedience of a superior 

commissioned officer, four specifications of violating a lawful general regulation, 

one specification of false official statement, and two specifications of assault 

consummated by a battery, in violation of Articles 90, 92, 107, and 128, Uniform 

Code of Military Justice, 10 U.S.C. §§ 890, 892, 907, and 928 (2012) [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for six months, and reduction to the grade of E-1. Pursuant to a pretrial 

agreement, the convening authority approved only so much of the sentence extending 

to a bad-conduct discharge, confinement for 120 days, and reduction to the grade of 

E-4. 

 
THOMAS—ARMY 20150269 

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

counsel raised one assignment of error which merits discussion but no relief. 

Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982) which we find, after due consideration, to be without merit. In 

his sole assignment of error, appellant alleges the military judge erred by 

misinterpreting United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005), and 

erroneously allowed the government to introduce impermissible rebuttal testimony 

on sentencing. We disagree for the reasons set forth below. 

BACKGROUND 

 Appellant was convicted, pursuant to his pleas of, inter alia, one specification 

of violating a lawful general regulation by wrongfully having a relationship with 

Private AP, and one specification of violating a lawful regulation by wrongfully 

having a relationship with Sergeant AC. At the sentencing portion of trial, appellant 

produced nine witnesses, five of whom testified, in pertinent part, that they would 

serve with appellant again. In rebuttal, the government called four witnesses, 

Private (PVT) AP, Sergeant (SGT) AC, Major (MAJ) JT, and Captain (CPT) JA, who 

all testified that they would not want to serve with appellant again. 

 Appellant asserts several reasons why the military judge erred by allowing the 

government to introduce impermissible rebuttal testimony. With regard to the 

testimony of PVT AP and SGT AC, appellant points out they both were victims in 

the case, and both testified under a grant of immunity. Major JT, the brigade S-2 

(intelligence officer), was the original investigating officer in the case. Appellant 

avers that these witnesses cannot reasonably be found to represent “a consensus view 

of the command.” United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005) 

(quoting United States v. Aurich, 31 M.J. 95, 96-97 (C.M.A. 1990)). In addition, 

appellant asserts their testimony did not constitute proper rebuttal because none of 

the defense witnesses called earlier in the proceeding had claimed MAJ JT, SGT AC, 

or PVT AP wanted to serve with the appellant. 

LAW AND DISCUSSION 

 A military judge’s decisions to admit or exclude evidence are reviewed for an 

abuse of discretion. United States v. Eslinger, 70 M.J. 193, 197 (C.A.A.F. 2011) 

(citation omitted). In Griggs, our superior court held that Rule for Courts-Martial 

[hereinafter R.C.M.] 1001(b)(5)(D), despite precluding a witness from offering an 

opinion on whether an accused should receive a punitive discharge, “does not apply 

to defense mitigation evidence, and specifically does not preclude evidence that a 

witness would willingly serve with the accused again.” 61 M.J. at 409. The Griggs

court went on to hold: 
THOMAS—ARMY 20150269 

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Consistent with the historical concerns regarding command 

influence, the Government is free to rebut such assertions. As 

stated in Aurich, [31 M.J. at 95-97], if an accused ‘opens the 

door’ by bringing witnesses before the court who testify that 

they want him or her back in the unit, the Government is 

permitted to prove that that is not a consensus view of the 

command.” 

Id. at 410 (citation omitted). Our superior court continues to adhere to this view. 

Eslinger, 70 M.J. at 198. The court in Eslinger went on to caution that such rebuttal 

testimony must not “raise the specter of command influence.” Id. at 199 (quoting 

Griggs, 61 M.J. at 408). Also, as the Military Rules of Evidence are applicable to 

sentencing, “a lay witness must have a proper foundation to offer an opinion.” 

Eslinger, 70 M.J. at 199. Importantly, the court in Eslinger stated: 

However, we hasten to note that evidence that the defense 

witnesses’ views are not a consensus view of the command 

simply means that retaining the accused is not the view of 

every member of the command. It does not necessarily 

mean that the Government may parade the commanding 

officer and the rest of the accused’s chain of command to 

have them give a command view on retention. That would 

depend on just how wide the defense opened the door.” 

Id. (citations and quotation marks omitted). 

 It is apparent from the record that the testimony of the government witnesses, 

called in response to the “retention evidence” proffered by the defense witnesses was 

proper rebuttal testimony, clearly contemplated by our jurisprudence and that of our 

superior court. The defense assertion that this testimony was somehow improper 

because no defense witness had specifically claimed that Private AP, Sergeant AC, 

or Major JT wanted to serve with appellant is without merit. To lend credence to 

this argument would eviscerate the holdings in Griggs and its progeny. Regarding 

the specific rebuttal witnesses called by the government, it is apparent that the 

testimony of Captain JA, appellant’s company commander, did not raise the specter 

of command influence, particularly in light of the parade of defense witnesses 

willing to testify that they would again serve with appellant. Further, the record 

demonstrates that the rebuttal witnesses were all familiar with the appellant’s 

character and that a proper foundation was laid for their opinions. Finally, the 

testimony of the government rebuttal witnesses clearly demonstrate that retaining 

appellant “is not the view of every member of the command.” Griggs, 61 M.J. at 

410. The military judge did not abuse his discretion by allowing the government 

rebuttal evidence in this case. 
THOMAS—ARMY 20150269 

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CONCLUSION 

Upon consideration of the entire record, the findings and sentence are 

AFFIRMED. 

 

Judge CELTNIEKS and Judge BURTON concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: