IN THE CASE OF 

UNITED STATES, Appellant 

v. 

Joshua M. FAGAN, Private 

U.S. Army, Appellee 

No. 03-5002 

Crim. App. No. 20000891 

United States Court of Appeals for the Armed Forces 

Argued October 7, 2003 

Decided February 4, 2004 

ERDMANN, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined. 

Counsel 

For Appellant: Captain Mark A. Visger (argued); Colonel Lauren 

B. Leeker, Lieutenant Colonel Margaret B. Baines, Major Jennifer 

H. McGee, and Captain Christopher Graveline (on brief). 

For Appellee: Captain Kathleen D. Schmidt (argued); Colonel 

Robert D. Teetsel and Captain Sean S. Park (on brief); 

Lieutenant Colonel E. Allen Chandler, Jr.

Amicus Curiae: Colonel LeEllen Coacher, Lieutenant Colonel 

Lance B. Sigmon and Captain C. Taylor Smith (on brief) – for 

United States Air Force Appellate Government Division. 

Amicus Curiae: Colonel R. M. Favors, USMC, and Lieutenant Lars 

C. Johnson, JAGC, USNR (on brief) – for United States NavyMarine Corps Appellate Review Activity, Government Division. 

Military Judge: Kenneth Clevenger 

This opinion is subject to editorial correction before final publication. 
United States v. Fagan, No. 03-5002/AR 

2

Judge ERDMANN delivered the opinion of the Court. 

Private First Class Joshua Fagan entered guilty pleas and 

was convicted by a military judge of larceny, forgery and the 

wrongful use and distribution of marijuana, in violation of 

Articles 121, 123, and 112a, Uniform Code of Military Justice 

[hereinafter UCMJ], 10 U.S.C. §§ 921, 923 and 912a (2000). He 

was sentenced by the military judge to 30 months confinement, 

total forfeiture of pay and allowances and a dishonorable 

discharge. The convening authority reduced the confinement to 

20 months and approved the balance of the sentence. 

Fagan's conviction and sentence were then submitted to the 

United States Army Court of Criminal Appeals for automatic 

review under Article 66(b)(1), UCMJ, 10 U.S.C. § 866(b)(1) 

(2000). The Court of Criminal Appeals affirmed the guilty 

findings but, for reasons more fully outlined below, reassessed 

the sentence by affirming the dishonorable discharge and the 

total forfeitures, but only 19 of the 20 months confinement. 

United States v. Fagan, 58 M.J. 534, 539 (A. Ct. Crim. App. 

2003). 

The Judge Advocate General of the Army certified the case 

to this Court for review of the following issues1

: 

I. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL 

APPEALS ERRED IN CONCLUDING THAT THE SIX PRINCIPLES LAID 

 

1

 This case was certified under the provisions of Article 

67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2000) and Rules 4 and 18 

of this Court’s Rules of Practice and Procedure. 
United States v. Fagan, No. 03-5002/AR 

3

OUT IN UNITED STATES V. GINN, 47 M.J. 236 (1997), PROVIDE 

THE PROPER DECISIONAL FRAMEWORK FOR ANALYZING ANY ISSUE 

RAISED IN A POST-TRIAL AFFIDAVIT, INCLUDING ISSUES RAISED 

UNDER UNITED STATES V. GROSTEFON, 12 M.J. 431 (C.M.A. 

1982)? 

II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL 

APPEALS ERRED IN CONCLUDING THAT THIS COURT'S DECISION IN 

UNITED STATES V. GINN, 47 M.J. 236 (1997), PRECLUDED THAT 

COURT FROM CONSIDERING THE GOVERNMENT AFFIDAVITS THAT 

FACTUALLY CONFLICTED WITH APPELLANT'S POST-TRIAL AFFIDAVITS 

AND FROM RESOLVING THE ISSUE IN THE GOVERNMENT'S FAVOR 

WITHOUT ORDERING A HEARING PURSUANT TO THIS COURT'S 

DECISION IN UNITED STATES V. DUBAY, 17 U.S.C.M.A. 147, 37 

C.M.R. 411 (1967)? 

III. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL 

APPEALS ERRED IN CONCLUDING THAT IT HAD THE AUTHORITY TO 

GRANT APPROPRIATE RELIEF UNDER THIS COURT'S DECISION IN 

UNITED STATES V. WHEELUS, 49 M.J. 283 (1998), WHEN THE 

COURT ADMITTED GOVERNMENT AFFIDAVITS SPECIFICALLY REBUTTING 

APPELLANT'S POST-TRIAL AFFIDAVITS THAT MADE FACTUAL 

ASSERTIONS OF CRUEL AND UNUSUAL PUNISHMENT? 

We hold that the Court of Criminal Appeals properly 

identified and applied United States v. Ginn, 47 M.J. 236 

(C.A.A.F. 1997) as the decisional framework for addressing 

Fagan's claim of cruel and unusual punishment. We further hold 

that the Court of Criminal Appeals erred in granting sentence 

relief to Fagan in lieu of ordering further proceedings under 

United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). 

BACKGROUND

At the conclusion of his trial in October of 2000, Fagan 

began serving his confinement at the United States Army 

Confinement Facility, Europe (USACFE) in Mannheim, Germany. In 

January of 2001, he was transferred from USACFE to the Regional 
United States v. Fagan, No. 03-5002/AR 

4

Confinement Facility at Fort Knox, Kentucky, to finish serving 

the balance of his sentence. 

As part of his appeal to the Court of Criminal Appeals, 

Fagan asserted that, while confined at USACFE, he had been 

subjected to cruel and unusual punishment in violation of the 

Eighth Amendment to the United States Constitution and Article 

55, UCMJ, 10 U.S.C. § 855 (2000). In support of his claim, he 

submitted an affidavit to the Court of Criminal Appeals 

asserting that he was "repeatedly subjected to physical abuse" 

by a certain guard (SGT D) who conducted "overly aggressive 

frisks" when Fagan was leaving the dining area. He indicated 

that, on approximately five occasions, SGT D "forcefully took 

his hand up the inside of [Fagan's] groin area and, what can 

described as similar to a karate chop, . . . would use the side 

of his hand to slap [Fagan's] testicle area." 

He also indicated that, on approximately five occasions, 

SGT D would, "using two hands, hold the waistband of [Fagan's] 

pants, tugging and yanking [his] pants in an upward motion so 

that [his] underwear and pants seams would forcibly be tucked up 

into [his] testicles and between [his] buttocks." According to 

his affidavit, these instances caused Fagan excruciating pain 

that lasted several minutes. Fagan alleged that he did not 

report these instances of abuse because of fear of retaliation 
United States v. Fagan, No. 03-5002/AR 

5

based on his observation of "repercussions" suffered by other 

inmates who had made reports against guards. 

In addition to his own affidavit, Fagan submitted 

affidavits from eight other inmates who had been confined at 

USACFE well before Fagan's arrival there, primarily between 

March and October 1999. The eight affidavits contained "nearly 

identical" allegations of mistreatment by SGT D and had been 

previously considered by the Court of Criminal Appeals in 

another proceeding. Fagan, 58 M.J. at 535 n.2 (describing 

affidavits submitted in United States v. Kinsch, 54 M.J. 641 (A. 

Ct. Crim. App. 2000)). 

In response to Fagan's claim and submissions, the 

Government submitted affidavits from SGT D and MAJ Suskie, the 

commander at USACFE during the period of time that Fagan's 

mistreatment was alleged to have occurred. In his affidavit, 

SGT D categorically denied any specific recollection of Fagan 

and any abusive activity towards any inmate during frisk 

searches or "pat down" procedures. MAJ Suskie also denied any 

recollection of Fagan and any awareness of SGT D having 

aggressively frisked inmates. 

The Court of Criminal Appeals turned to the framework of 

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) to address 

Fagan's claim of cruel and unusual punishment. Fagan, 58 M.J. 

at 536. While expressing dissatisfaction with that framework, 
United States v. Fagan, No. 03-5002/AR 

6

the court ultimately concluded that "the clear mandate" in Ginn

would require additional factfinding regarding Fagan's claim 

under the procedures set forth in DuBay. Rather than order such 

proceedings, however, the court elected to "moot the issue" by 

granting sentence relief under United States v. Wheelus, 49 M.J. 

283 (C.A.A.F. 1998) and reduced Fagan's confinement from 20 

months to 19 months. Id. at 538. 

The Court of Criminal Appeals then went on to characterize 

the interplay between Ginn and Wheelus as "far from clear" and 

took "the unusual step" of recommending that the Judge Advocate 

General send the case to this Court for review of the issues 

outlined above. Id. All three issues involve questions of law 

and we address them de novo. United States v. Sales, 56 M.J. 

255, 258 (C.A.A.F. 2002)(reviewing de novo the issue of whether 

lower court properly applied Ginn principles) 

DISCUSSION

A. The Ginn Framework 

This case involves the manner in which the military justice 

system deals with "collateral" claims. Fagan's post-trial claim 

of cruel and unusual punishment is "collateral" in the most 

classic sense -- it has nothing to do with his guilt or 

innocence of the crimes of which he stands convicted. See

United States v. Dykes, 38 M.J. 270, 272 (C.A.A.F. 
United States v. Fagan, No. 03-5002/AR 

7

1993)(collateral claim is one which does not go directly to the 

issue of the guilt or innocence of accused). 

In the realm of state and federal criminal law these 

claims are typically raised through a separate post-conviction 

proceeding where evidentiary hearings are held. Judges or 

magistrates make factual findings and conclusions of law that an 

appellate court can later review and consider. United States v. 

Polk, 32 M.J. 150, 152 (C.M.A. 1991). In the military justice 

system, however, there is no separate procedural mechanism 

available for raising and litigating these claims. Rather, they 

typically present themselves in the form of affidavits or 

unsworn allegations submitted as part of the direct appeal 

process. Id.

In light of that reality, this Court "long ago recognized" 

that resolution of these post-trial claims requires a procedure 

by which the Courts of Criminal Appeals, as well as this Court, 

may expand the record of trial where appropriate through an 

evidentiary hearing. Dykes, 38 M.J. at 272. The origin of that 

process is found in DuBay, where we remanded that case for a 

fact-finding hearing on post-trial claims of unlawful command 

influence. The so-called "DuBay hearing" has since become a 

well-accepted procedural tool for addressing a wide range of 

post-trial collateral issues. See e.g., United States v. Mack, 

58 M.J. 413, 415 (C.A.A.F. 2003)(question of whether certain 
United States v. Fagan, No. 03-5002/AR 

8

members were properly detailed to court-martial); United States 

v. Baker, 58 M.J. 380, 387 (C.A.A.F. 2003)(ineffective 

assistance of counsel claim); United States v. Hurn, 55 M.J. 

446, 450 (C.A.A.F. 2001)(claim of racial discrimination in 

exercise of peremptory challenge). 

Our decision in Ginn simply addresses the threshold aspect 

of the DuBay process. Specifically, it focuses on the 

circumstances under which a DuBay hearing is required to resolve 

a post-trial claim that is framed by conflicting affidavits. We 

recognized in Ginn that Article 66(c) does not authorize a Court 

of Criminal Appeals to decide disputed questions of material 

fact pertaining to a post-trial claim, solely or in part on the 

basis of conflicting affidavits submitted by the parties. Ginn, 

47 M.J. at 243. 

We also recognized, however, that a post-trial evidentiary 

hearing is not required in every case simply because an 

affidavit is submitted by an appellant. Id. at 248; see also

United States v. Guthrie, 53 M.J. 103, 105 (C.A.A.F. 2000)(mere 

submission of an affidavit by an appellant does not trigger the 

need for a post-trial evidentiary hearing); Dykes, 38 M.J. at 

273 (cautioning military law practitioners that mere submission 

of post-trial affidavits does not usually require an evidentiary 

hearing in order to resolve a post-trial collateral claim). In 

the context in which Ginn was presented, i.e., an ineffective 
United States v. Fagan, No. 03-5002/AR 

9

assistance of counsel claim, we outlined the following 

principles for determining when a factfinding DuBay hearing is 

required: 

First, if the facts alleged in the affidavit allege an 

error that would not result in relief even if any factual 

dispute were resolved in appellant's favor, the claim may 

be rejected on that basis. 

Second, if the affidavit does not set forth specific 

facts but consists instead of speculative or conclusory 

observations, the claim may be rejected on that basis. 

Third, if the affidavit is factually adequate on its 

face to state a claim of legal error and the Government 

either does not contest the relevant facts or offers an 

affidavit that expressly agrees with those facts, the court 

can proceed to decide the legal issue on the basis of those 

uncontroverted facts. 

Fourth, if the affidavit is factually adequate on its 

face but the appellate filings and the record as a whole 

"compellingly demonstrate" the improbability of those 

facts, the Court may discount those factual assertions and 

decide the legal issue. 

Fifth, when an appellate claim of ineffective 

representation contradicts a matter that is within the 

record of a guilty plea, an appellate court may decide the 

issue on the basis of the appellate file and record 

(including the admissions made in the plea inquiry at trial 

and appellant's expression of satisfaction with counsel at 

trial) unless the appellant sets forth facts that would 

rationally explain why he would have made such statements 

at trial but not upon appeal. 

Sixth, the Court of Criminal Appeals is required to 

order a factfinding hearing only when the above-stated 

circumstances are not met. In such circumstances the court 

must remand the case to the trial level for a DuBay

proceeding. During appellate review of the DuBay

proceeding, the court may exercise its Article 66 

factfinding power and decide the legal issue. 
United States v. Fagan, No. 03-5002/AR 

10

Ginn, 47 M.J. at 248. The first two issues presented to this 

Court by the Judge Advocate General involve the application of 

that framework to Fagan's post-trial claim of cruel and unusual 

punishment. 

 B. Application of the Ginn Framework 

The Court of Criminal Appeals was correct in identifying 

Ginn as the appropriate framework for addressing Fagan's claim. 

While Ginn was decided in the context of an ineffective 

assistance of counsel claim, its principles are applicable to a 

broader range of affidavit-based, post-trial collateral claims. 

See e.g., Hurn, 55 M.J. at 449 (affidavit-based uncertainties 

regarding claim of racial discrimination in exercise of 

peremptory challenge); United States v. Sherman, 51 M.J. 73, 75-

76 (C.A.A.F. 1999)(affidavit-based fact question as to existence 

of sub rosa agreement between counsel). 

Contrary to the assessment of the Court of Criminal 

Appeals, however, there are no "problems" presented by the Ginn

framework that are "compounded" by our decision in United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982).2 Fagan, 58 M.J. at 537-

38. Our decision in Grostefon simply prescribed a "rule of 

practice" which requires, at a minimum, that when an accused 

 

2

 While this case does not involve any Grostefon claims, the 

Court of Criminal Appeals discussed the problems they perceived 

to be aggregated by Grostefon under a Ginn analysis. We 

therefore chose to clarify this issue. 
United States v. Fagan, No. 03-5002/AR 

11

specifies any error in his request for appellate representation 

or in some other form, the appellate defense counsel will invite 

the attention of the Court of Criminal Appeals to those issues. 

That court will review those issues and specifically acknowledge 

that it has considered and disposed of them. United States v. 

Knight, 15 M.J. 202, 204 (C.M.A. 1983)(characterizing 

Grostefon). 

The linchpin of the Ginn framework is the recognition that 

a Court of Criminal Appeals' factfinding authority under Article 

66(c) does not extend to deciding disputed questions of fact 

pertaining to a post-trial claim, solely or in part on the basis 

of conflicting affidavits submitted by the parties. Ginn, 47 

M.J. at 243. There is nothing inherent in the Grostefon

procedure that amplifies, restricts or even impacts upon Article 

66(c) authority in the context of affidavit-based post-trial 

claims, which is the context in which Ginn arises. The fact 

that these claims may be assigned as error by counsel or raised 

by an appellant under Grostefon has no impact on the Ginn

analysis. 

We now turn to the Court of Criminal Appeals' application 

of the Ginn framework to Fagan's claim. The first Ginn factor 

looks at whether the facts alleged in the affidavit, if true, 

would result in relief. Ginn, 47 M.J. at 248. If the facts 
United States v. Fagan, No. 03-5002/AR 

12

sworn to by Fagan in his affidavit are taken as true, they could 

result in relief. 

The second Ginn factor considers whether the affidavit sets 

forth speculative or conclusory observations rather than 

specific facts. Fagan's affidavit and the others he filed in 

support of his claim are fact specific and his claim cannot be 

rejected on that basis. 

The third Ginn factor involves the situation where the 

facts in the affidavit are either not contested by the 

Government or agreed to by the Government. The facts material 

to Fagan's treatment at USACFE have been directly contested by 

the Government's counter-affidavits and Fagan's assertions 

cannot be disposed of as a legal claim based on uncontroverted 

facts. Id.

Under the fourth Ginn factor, if the affidavit is factually 

adequate on its face, but the appellate filings and the record 

as a whole “compellingly demonstrate” the improbability of those 

facts, a hearing is not necessary. Id. This factor requires an 

assessment of that portion of "the appellate filings and the 

record as a whole" apart from any conflicting affidavits and a 

determination as to whether that broader framework "compellingly 

demonstrates" the improbability of the factual assertions 

underlying the claim. As Fagan's claim relates to events that 

occurred after trial, there is nothing in the present record of 
United States v. Fagan, No. 03-5002/AR 

13

trial to "compellingly demonstrate" the improbability of his 

assertions. The only matters in the "appellate filings" are his 

affidavit-based assertions, the affidavits from other inmates at 

USACFE and the opposing Government affidavits. In this case it 

is not possible to conclude that the Government’s affidavits 

“compellingly demonstrate” the improbability of the assertions 

made in the affidavits submitted by Fagan without engaging in 

precisely the sort of appellate fact-finding that we rejected in 

Ginn.3

While the fifth Ginn factor is articulated in the specific 

context of an ineffective assistance of counsel claim, the Ginn

framework applies outside of that specific context. From that 

more general perspective, the fifth factor refers to matters 

within the record of a guilty plea that contradict the 

assertions made in support of the post-trial claim. Id. at 248. 

While Fagan entered guilty pleas to his offenses, his claim 

relates to matters that allegedly occurred well after his trial 

and his entry of those guilty pleas. Accordingly, they shed no 

light on the matter. 

 

3

 We also note that the appellate filings before the Court of 

Criminal Appeals drew that court’s attention to its earlier 

dispositions in a number of cases involving allegations against 

SGT D by other prisoner affiants. Those earlier dispositions 

included factual determinations that SGT D had engaged in the 

same misconduct that Fagan now alleges, which makes it difficult 

to now view the present record as “compellingly demonstrating” 

the improbability of those assertions. 
United States v. Fagan, No. 03-5002/AR 

14

As the Court of Criminal Appeals properly recognized, 

Fagan's claim of cruel and unusual punishment resides in the 

sixth and final Ginn category and his case must be remanded to 

the trial level for a DuBay hearing. 

A DuBay hearing is not required here simply because Fagan 

filed an affidavit -- the mere submission of an affidavit does 

not trigger the need for a post-trial evidentiary hearing. 

Guthrie, 53 M.J. at 105. Nor is it the mere filing of 

responsive affidavits from the Government that triggers the 

requirement for a DuBay hearing. The Ginn framework requires a 

DuBay hearing only if the opposing affidavits raise a fact 

dispute that is "material" to the resolution of the post-trial 

claim and the claim cannot be otherwise resolved through the 

application of the five Ginn factors. Ginn, 47 M.J. at 244-45; 

see also United States v. Murphy, 50 M.J. 4, 11 (C.A.A.F. 

1998)(recognized that Ginn condemned the resolution of disputes 

of material fact based on mere affidavits.) 

In the present case, it is the inapplicability of any of 

the five Ginn factors and the presence of affidavits that raise 

material fact disputes concerning Fagan's claim that require a 

DuBay hearing. We turn now to the issue of whether the court 

erred in not directing those further proceedings. 

C. Application of Wheelus
United States v. Fagan, No. 03-5002/AR 

15

After properly concluding that the "clear mandate" of Ginn

would require a DuBay hearing in this case, the Court of 

Criminal Appeals went on to conclude that this mandate was "in 

conflict" with its "broad power to moot claims of prejudice" 

under United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998). 

Fagan, 58 M.J. at 538. Rather than order a DuBay hearing under 

Ginn, the court elected to simply grant sentence relief to Fagan 

"under Wheelus." Id.

As with its misperception of a "problem" created by Ginn

and Grostefon, the Court of Criminal Appeals similarly perceived 

a "conflict" between Ginn and Wheelus where none exists. The 

central principles of these two cases are completely independent 

of one another. 

The "broad power to moot claims of prejudice" as referred 

to in the context of Wheelus is a remedial tool available to 

address acknowledged post-trial processing errors. In Wheelus, 

the Government conceded that the staff judge advocate did not 

fulfill his obligation to inform the convening authority of 

certain pretrial restraint matters. Wheelus, 49 M.J. at 285. 

While noting that appellate courts do not have clemency powers 

per se, the Court in Wheelus noted that they do have 

broad power to moot claims of prejudice by “affirm[ing] 

only such findings of guilty and the sentence or such part 

or amount of the sentence, as it finds correct in law and 

fact and determines, on the basis of the entire record, 

should be approved.” 
United States v. Fagan, No. 03-5002/AR 

16

Id. at 288 (quoting Article 66(c)). The Court went on to cite 

United States v. Cook, 46 M.J. 37 (C.A.A.F. 1997) as an example 

of this “broad power”, where the Government failed to afford an 

accused the opportunity to respond to "new matter" in the staff 

judge advocate recommendation. There the Court of Criminal 

Appeals ordered a sentence reduction rather than remand the case 

to the convening authority for a new recommendation and action. 

The exercise of the "broad power" referred to in Wheelus

flowed from the existence of an acknowledged legal error or 

deficiency in the post-trial review process. It is not a "broad 

power to moot claims of prejudice" in the absence of an 

acknowledged legal error or deficiency, nor is it a mechanism to 

"moot claims" as an alternative to ascertaining whether a legal 

error or deficiency exists in the first place. 

In terms of Fagan's claim, he may be entitled to relief if 

he did in fact suffer a violation of the rights guaranteed him 

by the Eighth Amendment and Article 55. However "broad" it may 

be, the "power" referred to in Wheelus does not vest the Court 

of Criminal Appeals with authority to eliminate that 

determination and move directly to granting sentence relief to 

Fagan. Rather, a threshold determination of a proper factual 

and legal basis for Fagan's claim must be established before any 

entitlement to relief might arise. 
United States v. Fagan, No. 03-5002/AR 

17

As Fagan's claim is post-trial, collateral and affidavitbased, Ginn is the appropriate threshold framework under which 

the claim needs to be evaluated. No post-trial collateral error 

or deficiency has been acknowledged and Wheelus does not come 

into play until, and unless, that acknowledgement is made. The 

Court of Criminal Appeals erred in relying on Wheelus as a basis 

for granting sentence relief to Fagan in lieu of ordering a 

DuBay hearing. 

CONCLUSION

We answer the first and second issues directed to us for 

review by the Judge Advocate General in the negative and answer 

the third issue in the affirmative. The decision of the United 

States Army Court of Criminal Appeals is set aside. The record 

of trial is returned to the Judge Advocate General of the Army 

for submission to a convening authority for a DuBay hearing on 

Fagan's claim of cruel and unusual punishment. The military 

judge at such hearing shall make findings of fact and 

conclusions of law and then return the record of trial to the 

Court of Criminal Appeals for further review under Article 

66(c). Thereafter, Article 67 shall apply.