UNITED STATES, Appellee/Cross-Appellant

v.

Alan D. ESLINGER, Sergeant First Class 

U.S. Army, Appellant/Cross-Appellee 

Nos. 10-0537 and 11-5002 

Crim. App. No. 20070335

United States Court of Appeals for the Armed Forces

Argued January 24, 2011

Decided July 8, 2011

BAKER, J., delivered the opinion of the Court, in which STUCKY 

and RYAN, JJ., joined. ERDMANN, J., filed a separate dissenting 

opinion, in which EFFRON, C.J., joined.

Counsel

For Appellant/Cross-Appellee: Captain Matthew T. Grady

(argued); Colonel Mark Tellitocci, Lieutenant Colonel Jonathan 

F. Potter, Major Laura R. Kesler, and Captain Jess B. Roberts

(on brief); Captain Jennifer A. Parker. 

For Appellee/Cross-Appellant: Captain Joshua W. Johnson

(argued); Colonel Michael E. Mulligan, Major Christopher B. 

Burgess, and Major Adam S. Kazin (on brief). 

Military Judge: Michael J. Hargis

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

2 

Judge BAKER delivered the opinion of the Court. 

A general court-martial composed of officer and enlisted 

members convicted Appellant/Cross-Appellee (Appellant), contrary 

to his pleas, of three specifications of possession of child 

pornography, in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934 (2006). The adjudged 

and approved sentence included confinement for three years, 

reduction to pay grade E-1, forfeiture of all pay and 

allowances, and a bad-conduct discharge.

On review, the United States Army Court of Criminal Appeals 

affirmed.1

We granted review of the following issue: 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY 

PERMITTING THE GOVERNMENT TO OFFER EVIDENCE IN THE 

FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO 

WITNESSES WITH NO PERSONAL KNOWLEDGE OF APPELLANT’S 

DUTY PERFORMANCE TO OPINE THAT HE SHOULD BE SEPARATED 

FROM THE ARMY AND SPECIAL FORCES. 

In addition, the Government certified the following 

issue: 

 WHETHER THE RESTRICTIONS UNDER R.C.M. 1001(b)(5) APPLY 

TO REBUTTAL EVIDENCE SUBMITTED UNDER R.C.M. 1001(d) 

AND WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS 

ERRED IN FINDING THAT THE MILITARY JUDGE COMMIT[T]ED 

PLAIN AND OBVIOUS ERROR WHEN HE PERMITTED INTRODUCTION 

OF GOVERNMENT REBUTTAL TESTIMONY TO DEFENSE “RETENTION 

EVIDENCE” WHEN THERE WAS NO DEFENSE OBJECTION. 

 

1

 United States v. Eslinger, No. ARMY 20070335, 2010 CCA LEXIS 

64, at *48 (A. Ct. Crim. App. May 21, 2010). 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

3 

 In our view the legal questions at the root of these issues 

were addressed in United States v. Griggs, 61 M.J. 402 (C.A.A.F. 

2005). Thus the question presented here is how the Griggs

analysis applies to these facts. For the reasons stated below 

we conclude that if any errors with regard to a lack of 

foundation for lay opinions were clear and obvious, they did not 

substantially influence the adjudged sentence. 

BACKGROUND 

 Appellant was a Special Forces medic who had served in the 

Army for eighteen years. In March 2006, Appellant had been 

living with his girlfriend Loren R. Masden for two years. She 

and Appellant exchanged various computer passwords as a sign of 

trust. On March 4, 2006, while Appellant was at “Pinon Canyon 

training site in Trinidad,” Masden logged onto Appellant’s 

laptop and discovered images of child pornography on the 

computer. She immediately called her sister, who came to Masden 

and Appellant’s home and also saw the images. Masden testified 

that her sister saw a digital fingerprint indicating that the 

pictures were downloaded on February 14, 2006, a time at which 

Appellant had been in North Carolina for training. Masden was 

upset and went to stay at her sister’s, returning a few days 

later to pack her things. On March 8, 2006, she reported the 

images to law enforcement. 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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 Appellant testified that at the time the images were 

downloaded, he was in training and occasionally did not have 

possession of his laptop or remote storage drives, and that some 

of the images may have been downloaded unintentionally while 

intending to download adult pornography and other materials from 

a file-sharing website. There were over 1,700 pornographic 

images found on Appellant’s computer that depicted children. 

These images included various forms of child pornography 

including anal, oral, and vaginal penetration of children under 

the age of two. 

The members found Appellant guilty of the charged offenses. 

At sentencing Appellant introduced testimony from three 

mitigation witnesses, each of whom basically testified that in 

his opinion, Appellant should be retained in the armed forces. 

Master Sergeant (MSG) Willie D. Gibbons, a member of 3d 

Battalion, 10th Special Forces Group, stated among other things, 

“I’ve already packed his bags . . . I would take him on my team 

in a minute,” and “Just like an alcoholic . . . I think, you 

know, something needs to be done . . . . Past that, I think he 

needs to stay in the service.” Captain Timothy J. Coffman, the 

battalion physician assistant, stated, “He is my best medic” and 

“I think we should rehabilitate him . . . . I mean, he’s a great 

soldier. He has a great service record as far as military 

activities.” Sergeant First Class Shawn Dishman, a member of 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

5 

Appellant’s company, whose testimony was admitted through a 

stipulation of expected testimony stated: 

I definitely think that there is a place for 

[Appellant] in the Army and within the 10th Special 

Forces. I truly believe that Special Forces is the 

only place for SFC Eslinger. 

I would be proud to serve with him in the future 

despite this conviction. . . . [I] would welcome him 

to my team any day. 

In rebuttal to Appellant’s mitigation evidence, the 

Government introduced testimony from five witnesses. Major 

(MAJ) Isaac J. Peltier, the acting battalion commander of 3rd 

Battalion, 10th Special Forces Group, Appellant’s battalion, 

stated: 

It is my opinion that, clearly [Appellant] should not 

deploy to combat with this organization. . . . And for 

that matter, he should not return to this -- the 3rd 

Battalion. And I’ll go a step further in my opinion, 

based on his pattern of misconduct, he shouldn’t even 

be in the Army. 

Sergeant Major (SGM) Jason M. Krider, Appellant’s battalion 

command sergeant major (CSM), testified, “There is no place in 

our ranks for Sergeant Eslinger.” MSG Timothy D. Stensgaard, 

one of the two team sergeants of the tactical support detachment 

in the 10th Special Forces Group testified, “As a leader in the 

United States Army, I don’t feel that based on his prior 

incidences and this conviction how he [sic] could remain in the 

U.S. Army and effectively serve.” Colonel (COL) Kenneth E. 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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Tovo, group commander of the 10th Special Forces Group, 

testified: 

Sergeant Eslinger’s got a good reputation as a 

soldier, particularly a combat soldier, in the Group. 

However . . . . [Y]ou just listed four fairly 

significant instances of ill-discipline, and frankly, 

that’s more chances than we allow a guy. . . . I just 

find that . . . his ill-discipline is incompatible 

with continued service, certainly within the 10th 

Group. 

CSM Charles M. Sekelsky, the group command sergeant major, 

testified, “I think he’s embarrassed the regiment and the United 

States Army for his actions.”2 In addition, on cross-examination 

defense counsel elicited agreement from the sergeant major that 

Appellant was an exceptional medic and an exceptional team 

member when deployed in a combat zone. Defense counsel 

specifically asked CSM Sekelsky, “If you could put him in a can 

and take him to Iraq and only open him up in Iraq, you’d prefer 

to do it that way, wouldn’t you?” To which he responded, “Yes.” 

With two exceptions, defense counsel did not object to the 

testimony of these witnesses. Following SGM Krider’s testimony 

the military judge asked, “Any issues with the sergeant major’s 

testimony?” Defense counsel, citing Rule for Courts-Martial 

(R.C.M.) 1001(b)(5), responded with a request that the military 

judge instruct the members to disregard the testimony because 

the offenses of which Appellant was found guilty formed the 

 

2

 CSM Sekelsky had also been Appellant’s previous battalion 

command sergeant major. 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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principal basis for SGM Krider’s opinion. Following an Article 

39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session to discuss the 

matter, the military judge instructed the members to disregard 

SGM Krider’s testimony. In addition, prior to CSM Sekelsky’s 

testimony the military judge asked trial counsel for an offer of 

proof as to what the witness would testify. Defense counsel 

objected to CSM Sekelsky’s expected testimony as cumulative 

since the members had just heard from the Group commander, COL 

Tovo. In counsel’s view, the colonel had already testified as 

to the consensus of the command. The military judge overruled 

this specific defense objection noting that CSM Sekelsky 

“appears to have some closer connection with the accused.” 

Immediately after ruling on this objection to the witness’s 

testimony, the military judge asked defense counsel 

specifically, “Any other objections, defense?” Defense counsel 

responded, “No, sir.” 

At the close of the sentencing case, although the defense 

requested a number of specific instructions they did not request 

a specific instruction regarding the Government’s rebuttal 

evidence. With respect to the sentencing evidence, the military 

judge provided the standard instruction to “consider all matters 

in extenuation and mitigation as well as those in aggravation.” 

He also instructed the members to consider, among other things, 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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evidence of Appellant’s good military character, his combat 

record, and his record in the service for bravery. 

Before the Court of Criminal Appeals Appellant challenged 

the admission of the Government’s rebuttal evidence on the 

ground that the witnesses did not have adequate foundations to 

provide their opinions as to whether Appellant should be 

retained in the armed forces. Eslinger, 2010 CCA LEXIS 64, at 

*2. The lower court, sitting en banc and without distinguishing 

between the various rebuttal witnesses, found “clear and obvious 

error in the admission of evidence which both lacked foundation 

and raised command influence concerns, without proper limiting 

instruction[s].” Id. at *42. However, after a detailed review 

for prejudice, that court concluded that any errors were 

harmless. Id. at *46-*47. 

Before this Court Appellant renews his argument that the 

military judge committed plain error in allowing the testimony 

of the rebuttal witnesses. First, Appellant argues the 

witnesses lacked an adequate foundation to form and offer an 

opinion on retention. Second, he argues that the restrictions 

on evidence of rehabilitative potential contained in R.C.M. 

1001(b)(5) apply to Government rebuttal as well as to the 

Government’s sentencing case-in-chief. Finally, Appellant 

challenges the lower court’s conclusion that any errors were 

harmless. For its part, the Government challenges the lower 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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court’s conclusion that the limitations in R.C.M. 1001(b)(5) 

apply to otherwise properly admitted rebuttal evidence. 

DISCUSSION

A military judge’s decisions to admit or exclude evidence 

are reviewed for an abuse of discretion. United States v. 

Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). Failure to object to 

the admission of evidence at trial forfeits appellate review of 

the issue absent plain error. United States v. Kasper, 58 M.J. 

314, 318 (C.A.A.F. 2003) (citation omitted); United States v. 

Halford, 50 M.J. 402, 404 (C.A.A.F. 1999); United States v. 

Raya, 45 M.J. 251, 253 (C.A.A.F. 1996). 

R.C.M. 1001(b)(5) and Rebuttal Evidence

We begin our analysis with the threshold question as to 

whether R.C.M. 1001(b)(5) bars the Government from introducing 

testimony of the type and quality in this case in rebuttal to 

defense retention evidence. If so, there is no need to consider 

whether there was a proper foundation for doing so. 

Evidence that goes toward the accused’s rehabilitative 

potential is permissible at sentencing. “The trial counsel may 

present, by testimony or oral deposition in accordance with 

R.C.M. 702(g)(1), evidence in the form of opinions concerning 

the accused’s previous performance as a servicemember and 

potential for rehabilitation.” R.C.M. 1001(b)(5)(A). However, 

“A witness may not offer an opinion regarding the 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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appropriateness of a punitive discharge or whether the accused 

should be returned to the accused’s unit.” R.C.M. 

1001(b)(5)(D). In United States v. Ohrt, 28 M.J. 301 (C.M.A. 

1989), the Court concluded that this restriction applies to both 

government and defense sentencing evidence. “[A] witness -- be 

he for the prosecution or the defense -- should not be allowed 

to express an opinion whether an accused should be punitively 

discharged.” Id. at 304-05. “[A]ppropriateness of punishment” 

is an issue to be decided by the members and “cannot be usurped 

by a witness.” Id. at 305. 

However, in Griggs, we held that “R.C.M. 1001(b)(5)(D) 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. This conclusion was based 

in part on the fact that “so-called ‘retention evidence’ is 

classic matter in mitigation, which is expressly permitted to be 

presented by the defense.” Id. However, we reached this 

conclusion with three important cautionary caveats. 

First, “there can be a thin line between an opinion that an 

accused should be returned to duty and the expression of an 

opinion regarding the appropriateness of a punitive discharge.” 

Id. Second, concerns raised with respect to this distinction 

“can be addressed with a tailored instruction focusing on the 

distinction between a punitive discharge, which is for the 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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members to decide, and the willingness of a servicemember to 

serve with an accused again.” Id. Third, and most importantly 

for the purpose of this case, we directly responded to the 

Government’s argument in Griggs that if the defense were allowed 

to admit such evidence the Government would be without recourse. 

We stated: 

Consistent with the historical concerns regarding command 

influence, the Government is free to rebut such assertions. 

As stated in [United States v.] Aurich,[3

] “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 (footnote added). We continue to adhere to this 

view. As in other contexts, where a party opens the door, 

principles of fairness warrant the opportunity for the opposing 

party to respond, provided the response is fair and is 

predicated on a proper testimonial foundation. See United 

States v. Blau, 5 C.M.A. 232, 244, 17 C.M.R. 232, 244 (1954) 

(otherwise “an accused would occupy the unique position of being 

able to ‘parade a series of partisan witnesses before the court’ 

. . . without the slightest apprehension of contradiction or 

refutation”). 

In this case, the defense counsel opened the door to 

rebuttal through testimony from its witnesses indicating that 

they would gladly serve with Appellant again. Therefore the 

 

3

 31 M.J. 95, 96-97 (C.M.A. 1990). 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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Government was free to rebut with proper evidence that this was 

not the consensus of the command. 

Three concerns warrant emphasis. First, when the 

government’s evidence in rebuttal to defense retention evidence 

is testimony of the accused’s commander, it may well “raise the 

specter of command influence.” Griggs, 61 M.J. at 408 (citation 

omitted). 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. See id. at 410 (citation and 

quotation marks omitted). 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. 

Second, to be clear, a commander may testify, but it is 

essential for the military judge to be on guard for the 

possibility, intended or not, that a commander’s testimony could 

convey undue command influence to the members. While not an 

absolute requirement, a tailored instruction from the military 

judge can ameliorate these risks and clarify the scope of 

permissible opinions. Where the government calls a number of 

senior command representatives, trial counsel should assess 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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which and how many are necessary to rebut the defense contention 

that the accused should be retained in the service. 

Third, “‘The Military Rules of Evidence [M.R.E.] are 

applicable to sentencing . . . thus providing procedural 

safeguards to ensure the reliability of evidence admitted during 

sentencing.’” United States v. Saferite, 59 M.J. 270, 273 

(C.A.A.F. 2004) (alteration in original) (quoting United States 

v. McDonald, 55 M.J. 173, 176 (C.A.A.F.2001); Manual for Courts–

Martial, United States, Analysis of the Rules for Courts-Martial 

app. 21 at A21-69 (2002 ed.)). Thus, a lay witness must always 

have a proper foundation to offer an opinion. See M.R.E. 701. 

In sum, although rebuttal testimony of the type in this 

case may raise some of the same concerns addressed by R.C.M. 

1001(b)(5), that is different than concluding that this rule 

specifically applies to rebuttal evidence. We conclude that it 

does not. Rebuttal is governed by R.C.M. 1001(d), which does 

not contain the same restrictions as R.C.M. 1001(b)(5). 

Foundation for Opinions

M.R.E. 701(a) requires that lay witness opinions or 

inferences be limited to those that are “rationally based on the 

perception of the witness.” In similar fashion, M.R.E. 602 

provides that “[a] witness may not testify to a matter unless 

evidence is introduced sufficient to support a finding that the 

witness has personal knowledge of the matter.” See also Ohrt, 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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28 M.J. at 306 (discussing a parallel requirement found in 

R.C.M. 1001(b)(5)(B) that “the opinion envisioned by R.C.M. 

1001(b)(5) can only be expressed by a witness who has a rational 

basis for his conclusions, founded upon the accused’s service 

performance and character”). As the Court of Criminal Appeals 

stated, “in the absence of such a foundation outlining these 

witnesses’ personal knowledge of appellant’s background or 

character, their subsequent testimony both lacks probity and 

increases the potential for prejudicial misuse of their 

opinions.” Eslinger, 2010 CCA LEXIS 64, at *34 (footnote 

omitted). Appellant argues that the Government’s witnesses did 

not have sufficient personal knowledge of the accused to proffer 

the opinions offered. We consider the testimony of each of the 

witnesses in issue. 

When asked the basis of his knowledge, MAJ Peltier agreed 

with the premise of the question that his opinion stemmed from 

what he “learned from Colonel Stoltz and the prosecutors in this 

case,” as well as “knowledge of the unit . . . [w]e’re very 

small.” MSG Stensgaard testified that he knew Appellant because 

“We did quite a bit of pre-mission training together prior to 

the OIF III deployment” and was aware of his two previous 

citations for drunk driving and criminal trespass conviction. 

COL Tovo testified that he knew who Appellant was and that 

he had a “good reputation as a soldier, particularly a combat 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

15 

soldier.” When asked the basis of his opinions, he stated 

“[Y]ou just listed four fairly significant instances of illdiscipline, and frankly, that’s more chances than we allow a 

guy.” 

SGM Krider stated that his opinion was based on the 

convictions for child pornography in this case, his “record of 

DUIs” and his criminal trespass conviction. The military judge 

sustained defense counsel’s objection to SGM Krider’s testimony 

and instructed the members to disregard it. Any infirmity with 

this testimony was cured by the military judge’s instruction and 

there is no indication in the record that the members did not 

follow the instruction. United States v. Taylor, 53 M.J. 195, 

198 (C.A.A.F. 2000) (court members are presumed to follow the 

military judge’s instructions); United States v. Holt, 33 M.J. 

400, 408 (C.M.A. 1991). 

CSM Sekelsky testified that he deployed with Appellant to 

Baghdad and “would see him occasionally at FOB 103.” He stated 

that he had occasional conversations with Appellant “[I would] 

just say, ‘Hi. How’re you doing,’ when I would see him. . . .” 

Although defense counsel objected to the testimony as 

cumulative, when asked if there was any other objection to the 

testimony, counsel replied “No, sir.” Thus any additional 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

16 

claimed infirmity regarding this testimony was affirmatively 

waived and is not subject to plain error review.4

In the case of MSG Stensgaard the foundational basis for 

the testimony was evident based on the structure of Special 

Forces units and the role of senior enlisted personnel within 

these commands. MSG Stensgaard was Appellant’s team sergeant 

for two years, trained with Appellant and deployed with him to 

Iraq. In short, this senior enlisted Special Forces soldier had 

a substantial personal foundation on which to render his 

opinions. 

The testimony of COL Tovo and MAJ Peltier present closer 

questions. 

According to MAJ Peltier’s testimony, his opinion of 

Appellant was based on what he learned from others as well as 

knowledge of the unit. Although not presenting the most 

compelling case, absent objection, it was not unreasonable for 

the military judge to infer that the executive officer of a 

Special Forces battalion would have direct and personal 

knowledge of a senior enlisted member in the command. 

 

4

 See United States v. Campos, 67 M.J. 330, 333 (C.A.A.F. 2008). 

However, we note that CSM Sekelsky’s opinion was based on his 

testimony that he was the command sergeant major of the 3d 

Battalion at the time of Appellant’s Operation Iraqi Freedom III 

deployment to Iraq. In this capacity, he would “see him 

occasionally” and of course was privy to the sort of information 

about senior noncommissioned officers that a command sergeant 

major is responsible for knowing.
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

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COL Tovo’s testimony was based on his standing as 10th 

Special Forces Group commander. According to COL Tovo the 

authorized medic strength for the Group was eighteen. His Group 

was below strength. In response to leading questions, COL Tovo 

indicated that his knowledge of Appellant was based on 

Appellant’s reputation in the command. He did not state that he 

had direct personal knowledge of Appellant. In our view, COL 

Tovo’s foundation in the record for expressing a personal 

opinion about Appellant was not as strong as it could have been. 

However, in the context of plain error review and in the context 

of the tightly knit and relatively small units that comprise the 

Army Special Forces community, in this case, the 10th Special 

Forces Group, we are not prepared to conclude, absent a record 

indicating otherwise, that the military judge abused his 

discretion in admitting the Group commander’s testimony. 

We agree with Appellant and the Court of Criminal Appeals 

that lay opinions must be derived from direct observation and 

judgment, but the military judge did not commit plain error by 

admitting the testimony of COL Tovo, MAJ Peltier, or MSG 

Stensgaard. Restated, it is not evident that there was a clear 

and obvious basis to exclude their testimony for lack of 

foundation. 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

18 

In any event, we need not ultimately determine if any of 

the admitted rebuttal testimony was obvious error, for even if 

so, any error was harmless. 

Prejudice Analysis

Under the plain error test, after finding plain or obvious 

error we test for prejudice. That is, “We test the erroneous 

admission or exclusion of evidence during the sentencing portion 

of a court-martial to determine if the error substantially 

influenced the adjudged sentence.” Griggs, 61 M.J. at 410. 

While we do not find plain or obvious error in this case, 

for the sake of appellate thoroughness we consider the third 

prong of the plain error test, recognizing that opinions may 

reasonably vary as to whether an error was clear or obvious in 

the first instance. Where command influence concerns are 

raised, the application of prejudice analysis will also enhance 

confidence in the fairness of the system. 

Prejudice analysis is also useful because, as we recognized 

in Griggs, the line between an opinion on whether an accused 

should be returned to service or punitively discharged is a thin 

one. 61 M.J. at 409. Indeed the line can appear obscure if 

testimony that the accused is unworthy of continued service is 

viewed as a euphemism for a punitive discharge, as it no doubt 

often is. Intuitively, there is a certain fiction to the 

premise that the members will readily distinguish between an 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

19 

opinion on continued service and an opinion that the accused 

should be punitively discharged. But it is a distinction that 

we are confident that properly instructed members are capable of 

making. Here, the Government came closest to the line by asking 

each witness, “Do you want him in the Army?” But in the context 

of the defense witnesses stating their desire to have Appellant 

stay in the Army, this was not obvious error on rebuttal. 

As we weigh the factors in determining whether, if there 

was error, it was prejudicial, we weigh factors on both sides. 

On the one hand, Appellant’s combat service offered significant 

mitigation for members to consider on sentencing. He was a 

senior enlisted soldier with combat service as a medic. He had 

three combat tours and was awarded the Bronze Star with combat 

V. Finally, if the testimony in question was error, it came 

from senior officers in Appellant’s chain of command, which in 

theory makes their testimony more likely to influence the 

members. 

On the other hand, we find six factors that cut against a 

conclusion that Appellant was prejudiced. First, Appellant’s 

possession of child pornography was extensive. As noted by the 

lower court, Appellant collected it over time and in multiple 

locations. Eslinger, 2010 CCA LEXIS 64, at *3. It included 

over 1,700 images, including infants being sodomized and 

vaginally penetrated. Second, Appellant did not make the case 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

20 

that his conduct was in some manner the result of his combat 

experience. Third, Appellant faced a maximum punishment of 

thirty years of confinement, forfeiture of all pay and 

allowances, reduction to the lowest enlisted grade E-1, and a 

dishonorable discharge; he received three years of confinement, 

forfeiture of all pay and allowances, reduction to the lowest 

enlisted grade E-1, and a bad-conduct discharge. Fourth, 

Appellant had an extensive record of prior misconduct. This 

record included two General Officer Memoranda of Reprimand 

(GOMOR) for driving under the influence in 1999 and driving 

while intoxicated in 2004, and a stipulation of fact reflecting 

a civilian conviction in 2004 for third-degree criminal trespass. 

In addition, the military judge gave a standard instruction to 

the members to guide them in their decision on whether to award 

a punitive discharge and, if so, what kind. Finally, and 

relevant to all the other factors, Appellant was sentenced by a 

panel of six experienced members, including a colonel, two 

lieutenant colonels, a major, and two sergeants major. 

Considering these factors in the context of the test set 

out in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999), 

while we do not assume error, we agree with the lower court’s 

assessment: the possibility Appellant would have received less 

confinement or would have avoided a punitive discharge, absent 

the rebuttal testimony, was remote. We are confident that the 
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR

21 

testimony of COL Tovo, MAJ Peltier, or MSG Stensgaard did not 

substantially influence the members’ judgment on the sentence. 

CONCLUSION

In view of the above, the decision of the United States 

Army Court of Criminal Appeals on the findings and the sentence 

is affirmed.
United States v. Eslinger, No. 10-0537/AR 

ERDMANN, Judge, with whom EFFRON, Chief Judge, joins 

(dissenting): 

This case involves four issues: (1) whether the 

Government established sufficient foundation for the 

testimony of the rebuttal witnesses it called during the 

sentencing portion of the court-martial; (2) whether that 

testimony was proper under United States v. Ohrt, 28 M.J. 

301 (C.M.A. 1989); (3) whether the rebuttal testimony from 

five senior officers and senior noncommissioned officers 

from the command structure raised the specter of unlawful 

command influence; and (4) whether the admission of this 

testimony was prejudicial. As this court noted in United 

States v. Griggs, 61 M.J. 402, 409 (C.A.A.F. 2005): 

The chief concerns underlying these cases are the 

need to have “a rational basis for” an opinion 

concerning rehabilitation and the importance of 

avoiding command influence in the sentencing 

process. These concerns coincide with the UCMJ’s 

overarching concern regarding undue command 

influence. 

(Citations and quotation marks omitted.) 

I respectfully dissent from the majority’s conclusion 

that even if the admission of the rebuttal testimony 

constituted plain or obvious error, there was no prejudice. 

I agree with the United States Army Court of Criminal 

Appeals’ determination that the Government’s rebuttal 

testimony lacked proper foundation and its admission 
United States v. Eslinger, No. 10-0537/AR 

2 

constituted plain and obvious error. However, I do not 

believe that the defense retention testimony, whether 

proper or not, opened the door to allow the Government to 

introduce otherwise inadmissible “euphemism” testimony on 

rebuttal. In addition, the military judge failed to give 

cautionary instructions addressing the proper purposes for 

which the rebuttal testimony was admitted and the potential 

for unlawful command influence. Under these circumstances, 

I cannot be confident that this improper testimony did not 

substantially influence the sentence. I would set aside 

the sentence and remand the case for a sentence rehearing. 

Relationship of R.C.M. 1001(b)(5) to R.C.M. 1001(d)

I agree that there is no reference in Rule for CourtsMartial (R.C.M.) 1001 which would specifically make R.C.M. 

1001(b)(5) applicable to R.C.M. 1001(d). However, the 

requirement for a witness to possess a rational basis for 

an opinion concerning the rehabilitative potential of an 

accused found in R.C.M. 1001(b)(5), is also embodied in 

both Military Rule of Evidence (M.R.E.) 602 and M.R.E. 701, 

and testimony admitted pursuant to R.C.M. 1001(d) must also 

satisfy those provisions.1

 

 

1

 Rather than holding that R.C.M. 1001(b)(5) literally 

applied to R.C.M. 1001(d), the Court of Criminal Appeals 

appears to have looked to R.C.M. 1001(b) to inform its 

analysis as to whether the Government rebuttal witnesses 
United States v. Eslinger, No. 10-0537/AR 

3 

This requirement has been long recognized by this 

court: 

Mil.R.Evid. 701 governs admissibility of layopinion testimony, and it applies to evaluative 

statements offered under RCM 1001(b)(5). United

States v. Susee, 25 MJ at 540. Only “opinions . 

. . which are . . . rationally based on the 

perception of the witness and . . . helpful to a 

clear understanding of the testimony of the 

witness o[r] the determination of a fact in 

issue” are admissible. Mil.R.Evid. 701. Thus, a 

foundation must be laid to demonstrate that the 

witness does possess sufficient information and 

knowledge about the accused -- his character, his 

performance of duty as a servicemember, his moral 

fiber, and his determination to be rehabilitated 

-- to give a “rationally based” opinion. . . . 

In United States v. Horner, . . . we tried to 

make it clear that “rehabilitative potential” 

refers to the accused. It is based upon an 

“assessment of . . . [the accused’s] character 

and potential.” 22 MJ at 296. Thus, a witness 

whose opinion is based upon factors other than an 

assessment of the accused’s service performance, 

character, and potential does not possess a 

rational basis for expressing an opinion. 

Ohrt, 28 M.J. at 303-04. 

Foundational Basis for Rebuttal Testimony 

The Government called five members of the 10th Special 

Forces Group command structure to rebut the defense 

sentencing witnesses: 

 

possessed the required rational basis for their expressed 

opinions, and then determined that they did not. United 

States v. Eslinger, No. ACM 20070335, slip op. at 17 (A. 

Ct. Crim. App. May 21, 2010). As the same foundational 

basis is required in M.R.E. 602 and M.R.E. 701, it was not 

error for the lower court to make that analogy. 
United States v. Eslinger, No. 10-0537/AR 

4 

Major Peltier

Major (Maj.) Peltier was the Acting Battalion 

Commander of the 3rd Battalion, 10th Special Forces Group. 

He testified that it was his opinion, based on Eslinger’s 

pattern of misconduct, that he should not deploy with the 

unit or even be in the Army. On cross examination Maj. 

Peltier agreed that his opinion was based on what the 

Battalion Commander and prosecutors had told him. He did 

not testify as to any personal knowledge of Eslinger and 

acknowledged that he had never been on the same team with 

him and had never deployed with him. He testified that he 

had not been aware of Eslinger’s two General Officer 

Memorandums of Reprimand (GOMORs) for driving under the 

influence of alcohol or his civilian criminal conviction 

until the day before trial. 

Addressing the foundation established by the 

Government for Maj. Peltier’s testimony, the majority held 

that “it was not unreasonable for the military judge to 

infer that the executive officer of a Special Forces 

Battalion would have direct and personal knowledge of a 

senior enlisted member in the command.” I do not believe 

that such an inference meets the foundational standard of a 

“rationally based” opinion that is required for the 

admission of this evidence. See United States v. Kirk, 31 
United States v. Eslinger, No. 10-0537/AR 

5 

M.J. 84 (C.M.A. 1990).2 Maj. Peltier’s testimony was not 

rationally based and therefore lacked proper foundation. 

Sergeant Major Krider

Sergeant Major (SGM) Krider was the Acting Command 

Sergeant Major for the 3rd Battalion, 10th Special Forces 

Group. He testified that he vaguely knew Eslinger, “in a 

distant manner.” He testified that Eslinger should not 

continue to serve in the Special Forces or the Army and 

primarily based that opinion on Eslinger’s conviction for 

possession of child pornography. The defense objected to 

the testimony of SGM Krider because his opinion was 

primarily based on Eslinger’s conviction for possession of 

child pornography and asked that the military judge 

instruct the members to disregard the testimony. In 

 

2 In Kirk, 31 M.J. at 88, the court noted: 

In United States v. Horner, 22 MJ 294 (CMA 1986) 

this Court held that RCM 1001(b)(5), Manual for 

Courts-Martial, United States, 1984, requires that 

an admissible opinion on rehabilitative potential 

be based on an individual assessment of a 

servicemember’s character and potential. In 

United States v. Ohrt, 28 MJ 301, 304 (CMA 1989), 

this Court said that it must be shown that a 

commander expressing such an opinion “does possess 

sufficient information and knowledge about the 

accused -- his character, his performance of duty 

as a servicemember, his moral fiber, and his 

determination to be rehabilitated -- to give a 

“rationally based” opinion. 
United States v. Eslinger, No. 10-0537/AR 

6 

response, the military judge properly instructed the 

members to disregard the testimony of SGM Krider. 

Master Sergeant Stensgaard

Master Sergeant (MSG) Stensgaard was a team sergeant 

in the tactical support detachment in the Group Support 

Battalion of the 10th Special Forces Group. MSG Stensgaard 

testified that he had been Eslinger’s team sergeant for two 

years and had trained and deployed with him. The majority 

held that sufficient foundation was established for MSG 

Stensgaard’s testimony and I agree. 

Colonel Tovo

Colonel (Col.) Tovo was the Group Commander of the 

10th Special Forces Group. He testified that he was aware 

that Eslinger had been convicted of possession of child 

pornography, had received two GOMORs for alcohol-related 

driving incidents, and had been convicted in civilian court 

of criminal trespass. As noted by the majority, Col. Tovo 

based his opinions on Eslinger’s reputation in the command 

and there is nothing in the record which indicates that he 

had any personal knowledge of Eslinger. He testified that 

he did not want Eslinger back in his unit, did not want to 

deploy with him, and did not want him in the Army. The 

majority recognized that the foundation for Col. Tovo’s 

testimony was “not as strong as it could have been” but in 
United States v. Eslinger, No. 10-0537/AR 

7 

the context of plain error held that the military judge did 

not abuse his discretion in admitting the testimony. 

As noted in United States v. Horner, this type of 

testimony is not helpful as “[t]he witnesses’ function in 

this area is to impart his/her special insight into the 

accused’s personal circumstances.” 22 M.J. 294, 296 

(C.M.A. 1986). There is nothing in the record that 

establishes a rational basis for Col. Tovo’s insight into 

Eslinger’s personal circumstances or his potential for 

rehabilitation and therefore his testimony lacked a proper 

foundation. 

Command Sergeant Major Sekelsky

Command Sergeant Major (CSM) Sekelsky was the 10th 

Special Forces Group Command Sergeant Major. The defense 

objected to CSM Sekelsky’s testimony as being cumulative 

with Col. Tovo’s testimony, but the military judge 

overruled the objection when he determined that CSM 

Sekelsky had more personal knowledge than Col. Tovo. The 

military judge then asked if the defense had any further 

objections to CSM Sekelsky’s testimony and defense counsel 

responded “No Sir.” I agree with the majority that this 

response affirmatively waived the issue of proper 

foundation for CSM Sekelsky’s testimony. 
United States v. Eslinger, No. 10-0537/AR 

8 

 The rebuttal testimony of both Col. Tovo and Maj. 

Peltier lacked proper foundation. Given the numerous 

decisions of military courts on this issue, the military 

judge’s admission of that testimony constituted plain and 

obvious error. 

Inadmissible “Euphemism” Testimony on Rebuttal

 The majority recognized the “thin line between an 

opinion that an accused should be returned to duty” which 

is permissible testimony, and the “expression of an opinion 

regarding the appropriateness of a punitive discharge” 

which is impermissible testimony. In Griggs, 61 M.J. at 

409, we explained: 

Obviously, an accused cannot return to serve in 

his unit if he receives a punitive discharge. But 

an explicit declaration that an accused should not 

receive a punitive discharge or that any such 

discharge should be of a certain severity is 

disallowed for the defense not because of R.C.M. 

1001(b)(5)(D), but because such evidence invades 

the province of the members to decide alone on 

punishment. Ohrt, 28 M.J. at 305 (“The question 

of appropriateness of punishment is one which must 

be decided by the court-martial; it cannot be 

usurped by a witness.”). 

(Citation omitted.) 

 This prohibition is not limited to express 

recommendations of a particular sentence, but also includes 

euphemisms: 

a commander as a sentencing witness cannot 

recommend a particular sentence to a court-martial 
United States v. Eslinger, No. 10-0537/AR 

9 

or employ euphemisms in his testimony which 

ineluctably lead to the same result. Here, the 

commander testified, “I think it would be, you 

know, a waste of Air Force resources to retain 

her.” This language rationally conveys the 

commander’s opinion that appellant should be 

separated, which is an impermissible comment under 

United States v. Ohrt. 

Kirk, 31 M.J. at 89 (citations omitted). 

This conclusion is based on the obvious fact that 

courts-martial have no authority to sentence an accused to 

any discharge other than a punitive discharge. When a 

senior officer or senior noncommissioned officer opines 

that an accused should not be in the Army (or other 

service), the message to the members is that the accused 

should receive a punitive discharge. Every Government 

rebuttal witness in this case testified that Eslinger 

should either not remain in the service or in the Army. 

This testimony infringed upon the province of the members 

and was improper.3

 

 

3

 I do not agree with the Court of Criminal Appeals that 

because the defense presented retention evidence in the 

defense sentencing case that may have infringed upon the 

province of the members, that opened the door to allow the 

Government to introduce its own inadmissible testimony on 

rebuttal. Certainly the Government was entitled to present 

testimony as to whether others in the command wanted to 

continue to serve with Eslinger. However, even if we were 

to assume that the defense sentencing evidence infringed 

upon the province of the members, the Government should not 

be permitted to subsequently introduce inadmissible 

evidence to rebut the evidence presented by the defense, no 

matter how far the door has been opened. See also
United States v. Eslinger, No. 10-0537/AR 

10 

As we recognized in Griggs, even when permissible 

testimony in this area is admitted, the military judge 

should provide “a tailored instruction focusing on the 

distinction between a punitive discharge, which is for the 

members to decide, and the willingness of a servicemember 

to serve with an accused again.” 61 M.J. at 409. No 

tailored instruction was provided in this case and the 

members were left with no guidance as to how to properly 

consider the rebuttal testimony. 

The Specter of Command Influence 

As recognized by the majority, when the Government 

presents rebuttal testimony to defense retention testimony, 

the military judge must be vigilant for the “specter of 

command influence.” This is particularly true when the 

rebuttal witnesses include the Group Commander, the Acting 

Battalion Commander, the Group Command Sergeant Major, and 

the Acting Battalion Command Sergeant Major. When senior 

officers and noncommissioned officers testify that an 

 

Eslinger, No. ACM 20070335, slip op. at 17. This 

particular theory of admissibility is sometimes called the 

“doctrine of curative admissibility” and notwithstanding 

this court’s passing references in United States v. Pompey, 

33 M.J. 266, 270 n.2 (C.M.A. 1991), United States v. Banks, 

36 M.J. 150, 164 n.15 (C.M.A. 1992), and United States v. 

Haimson, 17 C.M.A. 208, 224 n.2, 17 C.M.R. 208, 224 n.2 

(1954), this court has not adopted the doctrine, nor 

should it. 
United States v. Eslinger, No. 10-0537/AR 

11 

accused should not be in the Army, not only does that 

testimony improperly invade the province of the panel, the 

specter of command influence is certainly present. 

 We have often noted that: 

Congress and this court are concerned not only 

with eliminating actual unlawful command 

influence, but also with “eliminating even the 

appearance of unlawful command influence at 

courts-martial.” United States v. Rosser, 6 M.J. 

267, 271 (C.M.A. 1979). 

United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006). 

The majority correctly recognizes the import of a 

properly tailored instruction under these circumstances, 

but appears unconcerned that no tailored instruction was 

given in this case. The majority finds that the “standard 

instruction to the members to guide them in their decision 

on whether to award a punitive discharge” was sufficient. 

Eslinger, __ M.J. at __ (20). That instruction, however, 

did not address the issue of command influence. Where, as 

here, the Government rebuttal witnesses included the senior 

leadership of the 10th Special Forces Group and the 

battalion to which Eslinger was assigned, properly tailored 

instructions advising the members of the limited use for 

which the testimony was admitted and which also addressed 

the concerns of command influence, were essential. See

Griggs, 61 M.J. at 409. 
United States v. Eslinger, No. 10-0537/AR 

12 

Under these circumstances, the lack of foundation for 

the testimony of the two senior rebuttal witnesses, the 

admission of impermissible euphemism testimony, and the 

lack of any tailored instructions constituted plain and 

obvious error. 

Prejudice

 “We test the erroneous admission or exclusion of 

evidence during the sentencing portion of a court-martial 

to determine if the error substantially influenced the 

adjudged sentence.” Id. at 410. The majority opinion 

relies on six factors in concluding that any error in 

regard to the admission of the rebuttal evidence was 

harmless. The majority opinion initially notes that 

“Appellant’s possession of child pornography was extensive. 

. . . Appellant collected it over time and in multiple 

locations [and i]t included 1,700 images, including infants 

being sodomized and vaginally penetrated.” Eslinger, __ 

M.J. at __ (19) (citation omitted). Notwithstanding the 

significance of these facts, the court-martial panel 

sentenced Eslinger to only a fraction of the maximum 

authorized confinement -- three out of a potential thirty 

years. Although I do not know the degree to which this 

sentence reflected the panel’s consideration of Eslinger’s 

years of service and the nature of that service, the 
United States v. Eslinger, No. 10-0537/AR 

13 

relative brief period of confinement demonstrates that the 

panel did not view the offenses as significantly 

diminishing the value of the evidence offered in 

extenuation and mitigation. 

 As to the second factor, the majority observes that 

“Appellant did not make the case that his conduct was in 

some manner the result of his combat experience.” Id. at 

19-20. It is not apparent why the members would have 

expected Eslinger to have made this argument, nor is it 

apparent why the absence of this argument has any bearing 

on the question of prejudice. 

 Neither is it apparent how the absence of prejudice is 

demonstrated by the third factor relied on by the majority 

-- that “Appellant faced a maximum punishment of thirty 

years of confinement [and] a dishonorable discharge [and] 

he received three years of confinement [and] a bad-conduct 

discharge.” Id. at 20. As noted in response to the first 

factor, the vast disparity between the maximum punishment 

and the actual punishment reflects the willingness of the 

members to give substantial consideration to the specific 

facts and circumstances of the offenses and the offender. 

At the same time, the punishment of three years of 

confinement and a bad-conduct discharge is sufficiently 

consequential to demonstrate the potential prejudice from 
United States v. Eslinger, No. 10-0537/AR 

14 

the improper admission of sentencing evidence and lack of 

proper instructions as to how the panel should consider the 

rebuttal testimony and the potential for unlawful command 

influence. 

 As to the fourth factor, the majority states that 

Eslinger “had an extensive record of prior misconduct.” 

Id. at 20. In fact, the record reflects three incidents in 

the course of Eslinger’s eighteen-year military career: 

two GOMORs for driving under the influence of alcohol; and 

a state court conviction for third degree criminal 

trespass, to which Eslinger pleaded no contest in 2004. 

None of these incidents, either individually or 

cumulatively, resulted in any action for an administrative 

separation. Eslinger continued to serve in the Army, 

including completion of his third combat tour in Iraq. 

While it was certainly appropriate for the court-martial 

panel to consider these incidents during sentencing, they 

did not constitute “an extensive record of prior 

misconduct” and did not make it inevitable that he would 

receive a punitive discharge at trial. 

The fifth factor relied upon by the majority is that 

“the military judge gave a standard instruction to the 

members to guide them in their decision on whether to award 

a punitive discharge and, if so, what kind.” Id. As noted 
United States v. Eslinger, No. 10-0537/AR 

15 

earlier, this instruction did not inform the members as to 

how they should consider the rebuttal testimony when 

evaluating the appropriateness of a punitive discharge, nor 

did it address the issue of potential command influence. 

Finally, the sixth factor relied upon by the majority 

notes that “Appellant was sentenced by a panel of six 

experienced members, including a colonel, two lieutenant 

colonels, a major, and two sergeants major.” Id. The 

record, however, does not indicate anything unusual with 

respect to this panel in terms of the application of the 

panel selection criteria under Article 25, UCMJ, 10 U.S.C. 

§ 825 (requiring appointment of members “best qualified for 

the duty by reason of age, education, training, experience, 

length of service, and judicial temperament”), amount of 

prior court-martial experience, or likelihood to have more 

or less concern for the opinions of the command leadership. 

Summary

The rebuttal testimony of Col. Tovo and Maj. Peltier 

lacked a proper foundation. The testimony of all the 

Government’s rebuttal witnesses included impermissible 

“euphemism” testimony that invaded the province of the 

members. These errors were compounded by the failure of 

the military judge to give essential cautionary 

instructions addressing the proper purposes of the 
United States v. Eslinger, No. 10-0537/AR 

16 

testimony and the potential for unlawful command influence. 

Under the circumstances, I cannot be confident that the 

improper testimony did not substantially influence the 

sentence. The sentence should be set aside and the case 

remanded for a new sentence hearing.