UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant ROCKY L. LISTER

United States Air Force

ACM 38543 (recon)

18 August 2015

Sentence adjudged 23 August 2013 by GCM convened at Beale 

Air Force Base, California. Military Judge: Christopher M. Schumann.

Approved Sentence: Bad-conduct discharge, confinement for 2 years, and 

reduction to E-1.

Appellate Counsel for the Appellant: Major Anthony D. Ortiz and 

Major Christopher D. James.

Appellate Counsel for the United States: Major Daniel J. Breen; 

Captain Thomas J. Alford; and Gerald R. Bruce, Esquire.

Before

ALLRED, SANTORO, and TELLER

Appellate Military Judges

OPINION OF THE COURT

UPON RECONSIDERATION

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under AFCCA Rule of Practice and Procedure 18.4.

SANTORO, Judge:

A general court-martial composed of officer members convicted the appellant, 

contrary to his pleas, of indecent conduct for secretly recording a woman who was 

unclothed, assault consummated by a battery upon his then-girlfriend, and sending a 

partially-clothed picture of himself to a subordinate, in violation of Articles 120, 128, and 
2 ACM 38543

134, UCMJ, 10 U.S.C. §§ 920, 928, 934.1The adjudged and approved sentence consisted 

of a bad-conduct discharge, confinement for 2 years, and reduction to E-1. 

The appellant argues: (1) the military judge erred in finding that the government 

had disproven the existence of unlawful command influence (UCI) beyond a reasonable 

doubt, (2) the conviction for sending the photograph to his subordinate is legally and 

factually insufficient, (3) post-trial processing delay warrants sentence relief, (4) his trial 

defense counsel were ineffective, and (5) the military judge erred by prohibiting 

cross-examination of a government witness concerning prior nonjudicial punishment. 

On 17 June 2015, this court issued its decision in this case, affirming the findings 

and sentence. The panel that originally decided this case subsequently granted the 

appellant’s request for reconsideration. Having reconsidered our opinion, we again 

affirm the findings and sentence.

Background

The appellant met and developed a romantic relationship with then-Staff Sergeant 

(SSgt) WM while on deployment to Ecuador. Upon returning from deployment, the two

began living together and did so until the appellant deployed to Iraq approximately 

18 months later. Their relationship was tumultuous at times, including physical assaults 

and arguments. SSgt WM’s testimony about several occasions of abuse led to the 

appellant’s conviction for striking and grabbing her on divers occasions during an 

eight-month period.

After the appellant and SSgt WM ended their relationship, he met and married 

another woman. The appellant and his wife regularly visited a tanning salon. On one 

occasion in November 2011, the appellant positioned his cellular telephone so that it 

could record the person tanning in the room next to his. The female occupant of the room 

discovered his telephone, reviewed the video, saw that it depicted her nude body, and 

deleted it. The victim encountered the appellant as they were leaving the tanning salon 

and gave him his phone back. He apologized and said he thought he had been recording 

his wife.

Senior Airman (SrA) AM was a security forces member and the appellant’s 

subordinate. Although their relationship began professionally, the appellant asked 

SrA AM to dinner shortly after meeting her even though he knew she was married. She 

laughed it off. Some time later, the appellant sent SrA AM a text message with an 

embedded photograph of himself shirtless. SrA AM testified that after she rebuffed the 

 

1 The appellant was found not guilty of touching the breast of one of his subordinates, making a threat to kill his 

then-girlfriend, and sending a picture of his genitalia to a subordinate, in violation of Articles 120 and 134, UCMJ, 

10 U.S.C. §§ 920, 934.
3 ACM 38543

appellant’s dinner request and did not respond to his photograph, he began to “brief” 

(correct) her more often about what he claimed were dress and appearance violations.

Additional facts necessary to resolve the assignments of error are included below.

Unlawful Command Influence

The appellant alleges that apparent unlawful command influence (UCI) so 

permeated the Air Force at the time of his trial that it was impossible for him to receive a 

fair trial. The appellant asked the military judge to dismiss all charges on this same basis. 

The military judge denied the motion. According to the appellant, it was impossible for 

him to receive a fair trial due to the cumulative effect of comments made by the President 

of the United States, the Chief of Staff of the Air Force, the former and current 

Secretaries of Defense, and other senior military leaders.

Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in relevant part: “No person 

subject to this chapter may attempt to coerce or . . . influence the action of a court-martial 

or any other military tribunal or any member thereof, in reaching the findings or sentence 

in any case . . . .” The mere appearance of unlawful command influence may be “as 

devastating to the military justice system as the actual manipulation of any given trial.” 

United States v. Ayers, 54 M.J. 85, 94–95 (C.A.A.F. 2000) (quoting United States v. 

Allen, 33 M.J. 209, 212 (C.M.A. 1991)) (internal quotation marks omitted).

The burden of raising the issue of unlawful command influence rests with trial 

defense counsel. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). The 

defense must: (1) “show facts which, if true, constitute unlawful command influence,” 

and (2) show “the alleged unlawful command influence has a logical connection to the 

court-martial, in terms of its potential to cause unfairness in the proceedings.” Id. 

(citation omitted). To meet the threshold for raising this issue, trial defense counsel is 

required to present “some evidence” of unlawful command influence. Id. If the defense 

meets that burden to raise the issue, the burden shifts to the government, who must: 

“(1) disprove the predicate facts on which the allegation of unlawful command influence 

is based; (2) persuade the military judge that the facts do not constitute unlawful 

command influence; or (3) prove at trial that the unlawful command influence will not 

affect the proceedings.” United States v. Simpson, 58 M.J. 368, 373 (C.A.A.F. 2003) 

(quoting Biagase, 50 M.J. at 151) (internal quotation marks omitted). “‘Whichever tactic 

the Government chooses, the quantum of proof is beyond a reasonable doubt.’” Id. 

(quoting United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002))

Where, as here, the issue is litigated on the record at trial, the military judge’s 

findings of fact are reviewed under a clearly-erroneous standard, but the question of 

command influence flowing from those facts is a question of law that this court reviews 

de novo. See United States v. Villareal, 52 M.J. 27, 30 (C.A.A.F. 1999).
4 ACM 38543

The appellant’s arguments at trial were two-fold: first, that various comments by 

officials including the President of the United States, the Secretary of Defense, and other 

Air Force senior leaders caused the general and special court-martial convening 

authorities to feel compelled to refer this case to trial; and second, that the members 

would feel compelled to convict. Trial defense counsel sought an interview with the 

general court-martial convening authority (GCMCA) prior to trial. They were initially 

told their request would be granted but later were denied an interview. No explanation 

was provided for the changed decision. 

The military judge initially ruled that the defense met its burden to establish facts 

which, if true, amounted to unlawful command influence, thus shifting the burden to the 

prosecution. The GCMCA then granted a telephonic interview with defense counsel. 

Following that interview, and before the military judge finally ruled on the UCI motion, 

the defense was given the opportunity to call the GCMCA as a witness or offer other 

evidence. They declined, noting that the burden was upon the government.

The prosecution submitted affidavits from both the special and general 

court-martial convening authorities. Both convening authorities’ affidavits said, in effect, 

that their decisions were their own and were not influenced by the senior leaders’

statements about sexual assault. The military judge noted that although conclusory, the 

affidavits were unrebutted. He then accepted the convening authorities’ statements and 

found that UCI had been disproven beyond a reasonable doubt.

On appeal, the appellant renews his argument that the government failed to 

disprove the existence of UCI beyond a reasonable doubt.2 The appellant offers no legal 

argument or theory not offered at trial. Rather, he simply argues that the military judge 

got it wrong. We disagree.

We have ourselves reviewed the entire record, including the affidavits and the 

members’ responses during the voir dire process. The military judge’s findings of fact 

are amply supported by the record and are not clearly erroneous. We have considered the 

contents of the convening authorities’ affidavits as well as the GCMCA’s changing 

decisions with respect to being interviewed by defense counsel. While we recognize that 

UCI has been called the “mortal enemy” of military justice, United States v. Lewis, 

63 M.J. 405, 407 (C.A.A.F. 2006), we agree with the military judge that on these facts, 

the prosecution met its burden to disprove UCI beyond a reasonable doubt. An objective, 

disinterested, reasonable member of the public, fully informed of all the facts and 

circumstances, would not harbor a significant doubt about the fairness of the appellant’s 

court-martial proceedings. See United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006).

 

2 The appellant does not now challenge the composition of the panel or argue that actual or apparent unlawful 

command influence (UCI) existed with respect to anything other than the decision to refer the case to trial.
5 ACM 38543

Legal and Factual Sufficiency

The appellant next argues that the charge and specification alleging that he sent a 

picture of himself shirtless to a subordinate is legally and factually insufficient because 

there is no evidence establishing when the picture was sent. We review issues of legal 

and factual sufficiency de novo. See United States v. Washington, 57 M.J. 394, 399 

(C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering 

the evidence in the light most favorable to the prosecution, a reasonable factfinder could 

have found all the essential elements beyond a reasonable doubt.’” United States v. 

Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J. 

324 (C.M.A. 1987)). “Proof beyond a reasonable doubt . . . does not mean that the 

evidence must be free of conflict.” United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 

1986). 

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

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

[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Turner, 

25 M.J. at 325. In conducting this unique appellate role, we take “a fresh, impartial look 

at the evidence,” applying “neither a presumption of innocence nor a presumption of 

guilt” to “make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.” Washington, 

57 M.J. at 399.

The specification alleged that the appellant sent the image in question between on 

or about 1 June 2011 and on or about 30 September 2011. SrA AM, the recipient of the 

photograph, testified that she received the image from the appellant while he was her 

rater, which she testified was between March 2011 and October 2011. When she was 

asked to clarify the date range, she said “the spring” and “about the springtime,” although 

she said she could not remember exact dates because she had tried to forget what 

happened. When trial counsel pressed further and asked, “June, July, or August, 

somewhere around there?” she replied, “Yes, sir it was summer, it was summertime.” 

“A variance between pleadings and proof exists when evidence at trial establishes 

the commission of a criminal offense . . ., but the proof does not conform strictly with the 

offense alleged in the charge.” United States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999). 

To prove a fatal variance, the appellant must show both that the variance was material 

and that he was substantially prejudiced by the variance. Id. A material variance is one 

that substantially changes the nature of the offense, increases the seriousness of the 

offense, or increases the punishment for the offense. United States v. Marshall, 

67 M.J. 418, 420 (C.A.A.F. 2009). A variance is prejudicial when it puts the appellant at 

risk of another prosecution for the same conduct, misleads him to the extent he is unable 

to prepare for trial, or denies him the opportunity to defend against the charge. Id. 
6 ACM 38543

Minor variances, such as the location or the date an offense was allegedly 

committed, do not necessarily change the nature of the offense. United States v. Teffeau, 

58 M.J. 62, 66 (C.A.A.F. 2003). Further, the words “on or about” in relation to the dates 

alleged in the offense generally connote any time within a few weeks of the “on or about”

date. United States v. Brown, 34 M.J. 105, 110 (C.M.A. 1992). However, where the 

major focus of the litigation centers on the time, place, and nature of the interactions 

between the appellant and others, a variance as to date can result in a material and 

prejudicial fatal variance. See United States v. Parker, 59 M.J. 195 (C.A.A.F. 2003).

We find no variance between the allegations and the evidence. Whether we credit 

SrA AM’s statement that it was “the spring,” “summertime,” or her apparent adoption of 

trial counsel’s suggestion that it was “June, July, or August,” we find that each of these 

answers is “between on or about 1 June 2011 and on or about 30 September 2011.” Even 

assuming variance existed, it was not material. The specific date of the image’s 

transmission was not the major focus of the litigation with respect to that offense, and we 

discern no material prejudice to the appellant’s ability to defend against the charge.

We have considered the evidence in the light most favorable to the prosecution. 

We have also made allowances for not having personally observed the witnesses. Having 

paid particular attention to the matters raised by the appellant, we find the evidence 

legally sufficient to support the conviction. Moreover, we are ourselves convinced of his 

guilt beyond a reasonable doubt.

Post-Trial Delay

The convening authority took action 173 days after trial concluded. We review 

de novo an appellant’s claim that “he has been denied the due process right to a speedy 

post-trial review and appeal.” United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 

2006). 

There is a presumption of unreasonable delay when more than 120 days elapse 

between completion of trial and convening authority action. Id. at 142. Because the 

173-day delay in this case is facially unreasonable, we examine the claim under the four 

factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the 

delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely 

review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135. If we are able to 

conclude directly that any error was harmless beyond a reasonable doubt, we do not need 

to engage in a separate analysis of each factor. See United States v. Allison, 63 M.J. 365, 

370 (C.A.A.F. 2006).

Additionally, we may grant sentence relief under Article 66(c), UCMJ, 10 U.S.C. 

§ 866(c), even when we find no prejudice in unreasonable post-trial delays. United States 

v. Tardif, 57 M.J. 219 (C.A.A.F. 2002); see also United States v. Toohey, 63 M.J. 353, 
7 ACM 38543

362 (C.A.A.F. 2006) (finding delays were “such that tolerating them would adversely 

affect the public’s perception of the fairness and integrity of the military justice system”). 

However, “[a]ppellate relief under Article 66(c) should be viewed as the last recourse to 

vindicate, where appropriate, an appellant’s right to timely . . . review.” Tardif, 57 M.J. 

at 225.

The appellant asserts no prejudice resulting from the delay. Having reviewed the 

record, we conclude that Moreno relief is not warranted.3Instead, he urges us to provide

Tardif relief “to send a clear message to the Air Force that this Court will not tolerate 

unreasonable post-trial delay.”

Trial concluded on 23 August 2013. The 810-page record of trial was 

authenticated on 20 November 2013. The staff judge advocate’s recommendation was 

served on trial defense counsel and the appellant on 21 and 28 January 2014, 

respectively. The appellant submitted his clemency request without any mention of 

concern about post-trial processing delays. The staff judge advocate completed his 

addendum on 12 February 2014, and the convening authority took action on that same 

day.

We do not believe Tardif relief is warranted in this case. While it is true that 

post-trial processing took longer than is facially reasonable, we do not find the 

chronology of this case would adversely affect the public’s perception of the fairness and 

integrity of the military justice system.

Effectiveness of Counsel

The appellant next alleges that his counsel were ineffective because they (1) failed 

to call four witnesses who would contradict government witnesses and (2) failed to 

review the mental health records of SSgt WM. We review claims of ineffective 

assistance of counsel de novo. United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 

2009). When reviewing such claims, we follow the two-part test outlined by the 

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). 

See United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). Our superior court has 

applied this standard to military courts-martial, noting that “[i]n order to prevail on a 

claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his 

counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.”

United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 

687; Mazza, 67 M.J. at 474).

 

3 United States v. Moreno identified three types of prejudice arising from post-trial processing delay: (1) oppressive 

incarceration, (2) anxiety and concern, and (3) impairment of ability to present a defense at a rehearing. 

63 M.J. 129, 138–39 (C.A.A.F. 2006). None are present or alleged in this case. While we agree that Moreno

violations are unacceptable, we find beyond a reasonable doubt that the appellant was not harmed by the delay and 

is thus not entitled to relief under Moreno.
8 ACM 38543

The deficiency prong requires the appellant to show his counsel’s performance fell 

below an objective standard of reasonableness according to the prevailing standards of 

the profession. Strickland, 466 U.S. at 688. The prejudice prong requires the appellant to 

show a “reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Id. at 694. In doing so, the appellant “must 

surmount a very high hurdle.” United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 

1997) (citing Strickland, 466 U.S. at 689). This is because counsel is presumed 

competent in the performance of his or her representational duties. United States v. 

Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001). Thus, judicial scrutiny of a defense 

counsel’s performance must be “highly deferential and should not be colored by the 

distorting effects of hindsight.” United States v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000) 

(citing Moulton, 47 M.J. at 229). The “defendant must overcome the presumption that, 

under the circumstances, the challenged action ‘might be considered sound trial 

strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)). Moreover, “we need not determine whether any of the alleged errors [in 

counsel’s performance] establish[ ] constitutional deficiencies under the first prong of 

Strickland . . . [if] any such errors would not have been prejudicial under the high hurdle 

established by the second prong of Strickland.” See United States v. Saintaude, 61 M.J. 

175, 183 (C.A.A.F. 2005).

The appellant submitted for our consideration statements from several potential 

witnesses as well as his own declaration. We ordered trial defense counsel to submit 

affidavits responsive to the appellant’s allegations. 

The appellant’s declaration states that had his wife been called, she would have 

testified that the appellant had intended to record her, not the victim, at the tanning salon. 

His wife’s recently-signed declaration supports that assertion.4 However, both trial 

defense counsel interviewed the appellant’s wife prior to trial. At that time, she told them 

that she did not know whether the appellant’s recording was intentional or accidental and 

that she was not sure what happened at the salon. Additionally, defense counsel had 

legitimate tactical concerns not to expose the appellant’s wife to government interviews 

and cross-examination, as they believed she might enable them to identify additional 

misconduct.5

 

4 When we initially considered this case, the appellant's granted motion to submit his wife's affidavit (including the 

affidavit itself) was inadvertently not included in the record of trial. This opinion on reconsideration follows our 

review of those documents.

5 The appellant was initially facing charges relating to only one victim. As his trial defense counsel prepared for 

trial and sent requests to potential character witnesses identified by the appellant, several of those potential character 

witnesses came forward to report the appellant’s inappropriate behavior toward them. Several of those women were 

later named as alleged victims.
9 ACM 38543

The remaining witnesses identified by the appellant would have testified about the 

relationship between him and SSgt WM. Two witnesses, the appellant’s brother and his 

brother’s friend, would have testified that one of the assaults described by SSgt WM did 

not occur. According to affidavits submitted by trial defense counsel, during pretrial 

interviews, both of these witnesses offered to fabricate testimony about the incident to 

support the appellant.

A third witness would have testified that he never saw the appellant be abusive 

toward SSgt WM and that the appellant told him the recording in the tanning salon was 

an accident. Even if true, the latter statement would have constituted inadmissible 

hearsay.

Finally, the appellant asserts that because SSgt WM’s sentencing testimony was 

“replete with testimony about the psychological effects the alleged incidents had on her,” 

his trial defense counsel were ineffective for not seeking discovery of her mental health 

records. SSgt WM’s sentencing testimony spanned only two pages in the 810-page 

record. While she did testify about the effects of the assaults and mentioned seeking 

mental health counseling, trial defense counsel were prepared to cross-examine her on 

that topic but made the tactical decision not to do so after they assessed the manner in 

which she testified.

Therefore, in assessing the appellant’s allegation of ineffective assistance of 

counsel, we find the appellant failed to meet his burden to establish his counsel were 

deficient such that their performance fell below an objective standard of reasonableness

according to the prevailing standards of the profession. Because we find trial defense 

counsel were not deficient, we need not address the prejudice prong of Strickland. 

However, even were their performance deficient, the appellant has failed to establish 

prejudice or a “reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” See Strickland, 466 U.S. at 694.

Restriction on Cross-Examination

The appellant avers that the military judge erred in precluding cross-examination 

of SrA AM about punishment she received for misusing her government travel card 

(GTC). We review a military judge’s evidentiary rulings for an abuse of discretion. 

United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999). Under that analysis, findings 

of fact are reviewed for clear error and conclusions of law are reviewed de novo. 

United States v. Gallagher, 66 M.J. 250, 253 (C.A.A.F. 2008). The abuse of discretion 

standard is strict, calling for the challenged action to be “arbitrary, fanciful, clearly 

unreasonable, or clearly erroneous.” United States v. McElhaney, 54 M.J. 120, 130 

(C.A.A.F. 2000) (quoting United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)) 

(internal quotation marks omitted). A military judge is given broad discretion to impose 

reasonable limitations on cross-examination. Id. at 129. The abuse of discretion standard 
10 ACM 38543

recognizes that a judge has a range of choices and will not be reversed so long as the 

decision remains within that range. United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 

2004) (citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).

SrA AM had testified that the appellant had “briefed” (i.e., corrected) her at 

various times about her dress and appearance. A court member asked a question on that 

topic: 

Q: With regard to the briefings that you referenced from 

Sergeant Lister on your dress and appearance, did you ever 

receive any briefings on your dress and appearance from any 

other officers, or [noncommissioned officers], or was it just 

Sergeant Lister?

A: It was just Sergeant Lister and I never received any 

paperwork, other than [memoranda for record] that were

saved on the computer.

Based solely on that question and answer, trial defense counsel sought to introduce 

evidence that SrA AM had received nonjudicial punishment under Article 15, UCMJ, 

10 U.S.C. § 815, in 2008 for misusing her GTC. The question trial defense counsel 

wanted to ask was: “Isn’t it true that you received an Article 15 back in 2008 for GTC 

misuse?” The military judge disallowed the question, finding that it was not proper 

impeachment because the witness’ answer was limited to “paperwork” concerning 

violations of dress and appearance standards. The appellant now challenges that ruling.

Both at trial and on appeal, the parties have confused impeachment by 

contradiction with impeachment based on prior acts of dishonesty. The distinction is 

critical to the analysis. 

“Impeachment by contradiction is a line of attack that ‘involves showing the 

tribunal the contrary of a witness’ asserted fact, so as to raise an inference of a general 

defective trustworthiness’ or that the [witness] is capable of error.” United States v. 

Piren, 74 M.J. 24, 27 (C.A.A.F. 2015) (quoting United States v. Banker, 15 M.J. 207, 

210–11 (C.M.A. 1983)).

Conversely, Mil. R. Evid. 608(b) allows for impeachment by specific instances of 

conduct “for the purpose of attacking or supporting the witness’ character for 

truthfulness.” (Emphasis added). When using this method of impeachment, the 

questioner must inquire about the underlying conduct, not the existence of administrative 

sanction resulting therefrom. See United States v. Robertson, 39 M.J. 211, 214 (C.M.A. 

1994).
11 ACM 38543

Trial defense counsel’s desire to introduce evidence of the nonjudicial punishment

could thus serve only to impeach by contradiction SrA AM’s statement that she had 

“never received any paperwork.” Had trial defense counsel wanted to impeach SrA AM 

with evidence of specific instances of prior dishonesty, the proper question would have 

asked about the underlying conduct, not the nonjudicial punishment itself.

The military judge concluded that SrA AM’s answer that she had “never received 

any other paperwork” was in response to a question concerning paperwork relating to 

having been “briefed” or corrected about her dress and appearance. This factual finding 

is amply supported by the record and not clearly erroneous. Therefore, as the existence 

of the prior nonjudicial punishment would not contradict the witness’ statement, the 

military judge did not abuse his discretion in excluding it.6

Conclusion

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

materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) 

and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the 

sentence are 

AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Deputy Clerk of the Court

 

6 Both parties urge us to decide whether the military judge properly concluded that Senior Airman AM’s misuse of 

her government travel card did not “fit[] within the parameters of a false statement thereby subjecting it to be a valid 

grounds for cross-examination.” We decline to do so, as that was not the theory under which the evidence was 

offered and, even if it were, the proposed question by trial defense counsel would not have been proper under that 

theory of admissibility.