## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before WOLFE, SALUSSOLIA, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Cla ss AARON D. KELLER United States Army, Appellant

ARMY 20150619

Headquarters, III Cor ps and Fort Hood
Wade N. Faulkner an d Douglas K. Watkins , Military Judges Colonel Ian G. Corey, S taff Judge Advocate

For Appellant: Captain Timothy G. Burroughs, JA; Richard W. Ro usseau, Esquire (on brief and reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Marc B. Saw yer, JA;
Lieutenant Colonel Karen J. Borgerding, JA (on brief).

26 September 2018

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Senior Judge:

In May of 2014, four ma le noncommissioned o fficers (NCOs) drugg ed then gang raped a female junior enlis ted soldier while deployed in C amp Bondsteel,
Kosovo. All four wer e court-martialed.

Staff Sergeant (SSG) Carroll A. Gaither w as convicted of rape, conspiracy, and three other offenses. SSG Gaither’s sentence included eig ht years confinement and a dishonorable discharge. Sergeant First Class (SFC) Mich ael E. Gee was convicted of sexual assault, con spiracy an d four other offenses . SFC Gee’s sentence
included no confinemen t, but did include a bad-conduct discharg e. Master Sergeant (MSG) SF was acquitted.

Appellant, Sergeant First Clas s Aaron D. Keller, was convicted of four specifications of rape, conspirac y to commit sexual assault, ma ltreatment, abusiveKELLER—ARMY 20150619

2 sexual contact, and indecent exposure. 1 The panel sentenced appellant to a dishonorable discharge , confinement for te n years, forfeiture o f all pay and allowances, and reduction to the grade of E-1.

Appellant raises several issues on appeal. We di scuss all but one. 2

BACKGROUND

In May 2014, Specialist MR was d eployed to Kosovo. As with mos t deployed environments, consuming alcohol was prohibited. On the evening of 31 May 2014,
SPC MR’s roommate sent her a te xt inviting her t o play cards wi th four NCOs.
When she arrived with her roommate , there was an abundance of a lcohol in the room
and she observed that MSG SF had been drinking. The four NCOs insisted that SPC MR have a drink, and she eventually agree d. She testified that appellant pulled out a bottle of Grey Goose vodk a and gave it to her . The group playe d cards. Master Sergeant SF repeatedly indicated that he wanted to “play for so mething,” which was understood to be something sexual . After some time, SPC MR wen t outside with her

1 A general court-martial compri sed of officer and enlisted memb ers convicted appellant, contrary to his pleas, of one specification of consp iracy to commit sexual assault, one specifica tion of maltreatment , one specification o f making a false official statement, four specif ications of rape, two specificat ions of abusive sexual contact, and one specification of indecen t exposure, in violati on of Articles 81, 93, 107, 120, and 120c , Uniform Code of Milita ry Justice, 10 U.S.C. §§881, 893, 907, 920 and 920c (2012) [UC MJ]. The convening au thority approved t he adjudged

sentence.

2 We do not address in detail appellant’s cla im that his sentenc e is inappropriate in light of the sentences imposed against his co-conspirators. See generally United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999). The three cases are closely relat ed. However, even assuming t hat the sentences ar e “highly disparate ,” and further assuming that there is no rationa l basis for the disparity, we would still determine that appellant is not entitled to relief. In such cases, sente nce comparison remains only one aspect of determining s entence appropriateness. United States v. Martinez

, 76 M.J. 837 (Army Ct. Crim. App. 2012). That is, the sentence comparison of a closely related case informs , but does not decide, the sentence appropriateness
review. See Id. “Even if we assume app ellant's sentence wa s highly disparate, i n a closely related case that lacked cogent reasons for such a disp arity, appellant is not
entitled to a windfall from an otherwise ap propriate sentence j ust because a coactor, who may even be more cu lpable, received a mo re lenient sentence .” Id . at 842

The personal matters submitte d by appellant pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), do not mer it discussion n or relief.KELLER—ARMY 20150619

3 roommate to smoke a cigarette. Both women left their drinks i nside. When they returned, and after taking another dri nk, both women started to have symptoms that an expert witness would testify were consistent with having bee n dosed with a dissociative drug.

Specialist MR testified that whi le she could rec ollect what hap pened, (with some omissions), her body “just felt extremely hea vy” and she w as not able to respond physically. S he testified that MSG SF first kissed her inner thigh and then raped her by putting h is penis in her vagin a. She stated that she said “Stop” and

“No.”

After MSG SF finishe d, he told appellant t hat he was next. Spe cialist MR was then raped, in turn, by appella nt, SSG Gaither and SFC Gee. Wh en SFC Gee finished, and as SPC MR prayed to herself, appellant raped her a second time.

The record is not crystal clear as to how long th is went on or at what time it ended. Eventually, the crime was interrupted by a neighbor kno cking on t he door complaining of the loud music. W ith assistance, SPC MR got dre ssed. While getting dressed she te xted her supervisor a single word, “help. ” Specialist MR would spend the remain der of the night and most of the next day vomiting and showering.

A sexual assault examination of SPC MR w ould reveal g enital inj ury consistent with sexual intercou rse as well as ot her bruising an d minor injuries.
Consistent with test imony that condoms were used, the exam did not find the presence of semen. Ho wever, examination of SPC MR’s underwear did reveal
evidence of a lubrican t consistent with th at used on condoms. Additionally, “touch” DNA consistent with appellant wa s found on SPC MR’ s underwear. Master Sergeant
SF’s DNA was found on th e inside of the crot ch of SPC MR’s unde rwear. A search of appellant’s footlocker reveale d a receipt for a recent off-b ase purchase of four bottles of liquor. One of the bottles was G rey Goose. The sea rch also revealed a selection of condoms among appella nt’s personal po ssessions. I ndependent witnesses would verify they had s een the condition of MSG SF (d runk) and SPC MR (vomiting) later tha t night. A physical e xamination would conf irm SPC MR’s roommate’s report that MSG SF had shaved all of his pubic hair.

Appellant testified in his own d efense. He deni ed everything. Appellant
claimed no one that night had consumed alc ohol and that no one that night had sex. To explain the DNA f ound on SPC MR’s underw ear, he implausibly claimed that while playing cards, SPC MR an d her roommate, ap ropos of nothin g, had stripped
down to their underwe ar and began grindi ng on him and the other NCOs. While he admitted purchasing the four bo ttles of alcohol, he claimed tha t he had consumed them all the previou s weekend while on a two-day pa ss to Macedo nia. He claimed to have personally dran k two 750ml bottles of Hennessey, and that he and otherKELLER—ARMY 20150619

4 unidentified soldiers drank the other two 750ml bottles. The c ondoms, which were flavored, he claimed to have obta ined from the ba se clinic. T o explain why he had a penis pump in his locker, appe llant claimed he was unable to obtain an erection without the pump. To explain why h e brought the pump to Kosovo , appellant
testified he had been plannin g on meeting his wi fe in London mi d-tour.

LAW AND DISCUSSION

As an initial ma tter, we address appellant’s personal claim tha t the evidence is factually insufficient. There was no direct evidence that SPC MR had been drugged. Also, there was no d irect evidence of a c riminal conspiracy.

However, in weighing the eviden ce, we not only reject appellant ’s testimony as not credible, we find that in aggregat e, the implausibility of appellant’s testimony also weighs in fav or of his guilt. See United States v. Pleasant , 71 M.J. 709, 712 (Army Ct. Crim. App. 2012) (an acc used testifies a t his own ris k). When asked, appellant could not e xplain why, if there wa s only dancing, MSG SF’s DNA was on the inside of SPC MR’s underwear. Appellant’s tale also did no t explain the Grey Goose vodka. As the government ar gued, if appella nt admitted p urchasing Grey Goose vodka, but claimed that he had consumed it the week prior , how would SPC
MR know to claim that he had handed her a bottle of Grey Goose vodka? Appellant’s version of events would not explain how SPC MR’s ro ommate would correctly tell police that MSG SF had hairless genitals. Here, appellant’s mendacious testimony on ly served to h elp the government further prove their case.

While there was no direct evidenc e that SPC MR was dosed with a particular drug, and while there was no direct eviden ce of a criminal agre ement, the panel’s
conclusion that both ha d been proven was a reasonable inference from the evidence. Taking into account that the trial court saw and heard the evid ence, we are also convinced of appe llant’s guilt. See UCMJ, art. 66(c).

Accordingly we turn to appellant’s assigned errors. We address them in the order raised by appellant.

A. Were offenses unre asonably multiplied?

At trial, appell ant objected that certai n offenses were unreaso nably multiplied for purposes of sentencin g (“UMC for sentenci ng”). The government agreed in part and disagreed in par t. The military judge ga ve appellant some of h is requested relief. On appeal, appellant cl aims for the first time that some offens es are unreasonably multiplied for findings ( “UMC for findings”).KELLER—ARMY 20150619

5 Appellant asserts that we should review the decision of the mil itary judge for an abuse of discretion. We think this wrong. 3 At trial, appellant ob jected only as to an UMC for sentencing. A ppellant never claime d to the trial judge that the offenses were an UMC for findings. Accor dingly, appellant at least forf eited the claim that
the offenses were an UMC for f indings. As appellant specifical ly raised a claim that the charges were unreasonably multiplied for sentencing, it see ms likely that appellant knowingly did not raise the same issue as applied to findings. If so, appellant waived any c laim that the offenses were an UMC for fi ndings on appeal.

However, as we explain below, resolving this assignment of erro r does not turn
on the standard of re view. In assessing w hether offenses are u nreasonably multiplied we rely on our sup erior court’s decision in United States v. Quiroz , 55 M.J. 334 (C.A.A.F. 2000)

.

We find in appellant’s favor his argument that his conviction f or exposing his penis is unreasonably multiplied with his conviction for rape. Appellant’s argument
is that “SFC Keller could not have partic ipated in . . . a gang rape if he did not expose his penis.” Although the government coul d have argued o therwise, given the presence of SPC MR’s r oommate, the governmen t agrees that relie f is warranted. The government’s conces sion is reasonable a nd not inappropriate . Accordingly, and given that we may only approve th ose findings tha t “should be a pproved,” we will
exercise our aut hority under Article 66(c ), UCMJ, to notice for feited and waived issues and will conditionally dismiss the indecent exposure off ense in our decretal paragraph.

However, we find appe llant is not entitle d to any other relief. Appellant was convicted of personally raping SPC MR, as we ll as entering into a conspiracy with SSG Gaither, SFC Gee, and MSG SF to sexually assault SPC MR. A dditionally, the court-martial found appellant gu ilty of the rapes that were com mitted by his conspirators. Appellant urges u s to find these offenses unreas onably multiplied. They are not.

3 There is a substantial differenc e between how this court revie ws preserved and unpreserved error . For starters, when er ror is preserved, this court reviews the issue de novo as part of our revie w of the en tire record. United States v. Sewell , 76 M.J. 14, 18 (C.A.A.F. 2017). Although briefs are helpful, appellant bears no burden in presenting this court with a claim of preserved error. United States v. Killion , 75 M.J. 209, 214 (C.A.A.F . 2016). In the case of unpreserved erro r, by contrast, the burden is on appellant to establish pla in error. United States v. Knapp , 73 M.J. 33, 36 (C.A.A.F. 2014). Al though this court ma y exercise our Artic le 66(c), UCMJ,
discretion to “notice” forfeited error, in the absence of such notice the failure to carry the burden may b e fatal to the claim.KELLER—ARMY 20150619

6 Appellant suggests that we should consider that appellant’s co- conspirators were acquitted of some of t he offenses for whi ch he was found guilty . Although perhaps
relevant to other clai ms of error, this does not strike us as h aving significant weight when determining whether charges are unreasonably multiplied.

Specialist MR was raped and gr oped by four NCOs as part of appe llant’s conspiracy. Appellant’s crimina l responsibilit y justly extends to each offense. To
dismiss or consolidate some of these offens es for findings woul d be to inappropriately diminish the extent of appellant’s criminal con duct. Accordingly, we deny relief. See Quiroz , 55 M.J. at 339

.

B. Was Specialist MR subject to appellan t’s orders?

Appellant was convic ted of maltreating SPC MR by performing sex ual acts on her, and assisting ot hers in performing s exual acts on her whil e she was under the
influence of alcohol. An element of maltreatment is that the v ictim is sub ject to the orders of the accused. On appeal , appellant claims that SPC MR was not subject to
his orders and that therefore he could not maltreat her.

Over defense objection, the go vernment elicited testimony from SPC MR as to
whether she viewed herself as subject to appellant’s orders. S he stated she had to
follow the orders of NCOs. Whi le appellant tes tified that SPC MR was not in his chain of command, on cross-examinat ion he agreed that she would have to obey his
orders.

At trial appellant did not raise that SPC MR was not subject to his orders as a
matter of law. 4 On appeal, appellant appears to maintain course and frames th e issue as one of evidentiary sufficiency.

It is clear from the record that appellan t had no direct superv isory or command relationship with SPC MR. Artic le 93, UCMJ, provides that “any person subject to
his orders” is defined as:

4 We review the sufficiency of the evidence de novo. UCMJ art. 66(c); United States v. Washington , 57 M.J. 394, 3 99 (C.A.A.F. 2002). Howev er, we consider claim s of legal error under diffe rent standards of rev iew depending on th e type of error, and whether the error was preserved, forfeited, invited or waived. See United States v.

Brooks , 64 M.J. 325, 328 (C.A .A.F. 2007) (preserved error is reviewed for abuse of discretion); United States v. Gladue, 67 M.J. 311, 313 (C.A. A.F. 2009) (forfeited
error is reviewed f or plain error); United States v. Martin , 75 M.J. 321 (C.A.A.F. 2016) (invited err or is a question of law reviewed de novo); United States v. Campos , 67 M.J. 330, 332 (C.A.A.F. 2009) (waived issues leave no erro r to correct on appeal).KELLER—ARMY 20150619

7 [N]ot only those persons under the direct or immediate
command of the accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawfu l orders of the accused, regardless whether the accuse d is in the direct chain of
command over the person.

Manual for Courts-Martial, United States , (2012 ed.) [ MCM ], Part IV, ¶17.c(1);

UCMJ art. 93.

Thus, to prove maltrea tment the government is not required to s how a direct command or supervisory relations hip. However, we agree with ap pellant that it is also not enough to merely show that the accused is of higher en listed rank than the person being maltreated. Appella nt persuasively compares Artic le 90, UCMJ, (disobeying a s uperior commissioned office r) and Article 91, UC MJ, (disobeying a noncommissioned officer). Only the latter article requires tha t the victim be subject
to the accused’s orders.

There are few cases on point–an d they are all on ly persuasive a uthority. Our
sister court at the Na vy Yard has stated t hat “transitory conta ct per se” b etween an E-6 and an E-4 “did no t create ‘some duty’ f or the victim to ob ey appellant.” United States v. Sojfer , 44 M.J. 603, 609 (N.M . Ct. Crim. App. 1996); see also United States v. Curry , 28 M.J. 419 (C.M.A. 1989) (The CAAF questions in dicta the du ty of an E-4 to obey the orders of an E-6).

The Coast Guard Court of Criminal Appeals appears to also agree . In United
States v. Sullivan , 2016 CCA LEXIS 404 (C.G. Ct. Crim. App. 13 Dec. 2016), the
accused and the victim met online, were stat ioned at a differen t unit, and met “outside of any official or professional context.” Id . at *5-*7. Only after meeting online did they both discover th at they were both in the Coast Guard. Id . at *5. The accused was charged with demandi ng she take nude p ictures of he rself while on duty, threatening her career in exchange for sexual favors, and requesting sexual
conduct in excha nge for money. Id . at *3. The cour t found insuffici ent facts that the victim was subject to the accused’s orders. 5 Id . at *7.

Finally, in United States v. Cowan , this court also ad dressed, tangentially, when a victim is subject to the accused’s orders. 2017 CCA LEX IS 633 (Army Ct. Crim. App. 28 Sep. 2017). Cowan was a guilty plea in which the accused had

5 Sullivan may be unusual. First, it was t he government who raised and c onceded that the victim was not subjec t to the accused ’s orders. Secon d, Sullivan was a guilty plea and therefore the appellate inquiry should be viewe d with regards to the voluntariness of the plea, not o n the sufficiency of the eviden ce.KELLER—ARMY 20150619

8 specifically admitted that the vic tim was subject to his orders (and they were members of the same platoon). Id . Thus, we affirmed appella nt’s plea in that case.

Most persuasive, however, is t he plain language of Article 93, UCMJ. To prove maltreatment, the government must pro ve that the victim i s subject to the
accused’s orders. We therefore agree with appellant and hold t hat a mere difference
in enlisted rank does not establish that the victim was subject to the ac cused’s
orders.

The question then bec omes when is one enli sted soldier subject to the orders of a superior enlisted soldier ? What more is required?

In United States v. Knight , 52 M.J. 47, 49 (C.A.A. F. 1999), the Court of Appeals for the Armed Forces (CAAF) noted that they had not yet “particularly
defined” what it mean s to be subject to the accused’s orders. The Court appeared to partially answer the question after finding that the “plain lan guage of this statute (‘subject to his orders’) does not support” a supervisory requi rement, but then the court held that “we need not decide this legal question today.” Id . at 50

The question is a n important one. If appe llant cannot maltreat SPC MR
because she is not su bject to his or ders, it follows that SPC M R is not requ ired under the UCMJ to follow appellant’s orders. Consider the contraposi tive scenario where instead of raping SPC MR, appe llant had given h er an order. Fo r example, if SFC
Keller had ordered SPC MR to tak e a position on the perimeter, or to direct weapons
fire onto a certain ta rget, or had stoppe d her on the base and told her to make a uniform correction, could SPC MR have disobeyed those orders wi thout fear of being court-martiale d? Certainly not.

Considering the evidenc e in this case and the customs of the se rvice in the United States Army, we conclude that SPC MR was subject to appe llant’s orders. True, appellant and SPC MR were not in the s ame unit (except at the most macro of levels). However, th is offense occurred i n a deployed environm ent where military authority and control over junior ranking individuals is likely at its zenith. Second,
unlike Sullivan , there is no evidence that appellant and SPC MR met under pure ly personal circumstances. And, fin ally, this is no t a case in wh ich we are tasked with determining whether a Private i s subject to the orders of a Pri vate First Class or Specialist. Appellant is a nonc ommissioned officer. The Unite d States Army vests additional authority i n its noncommissione d officer ranks. “NC Os are accomplished military professionals who are the Army’s preeminent body of le adership. NCOs are
known as the ‘backbone o f the American Army’ and are the standa rd bearers responsible for traini ng, leading, coaching, and mentoring Sold iers, small units and teams.” Dep’t of A rmy, Pam. 600-25, Pers onnel-General: U.S. A rmy Noncommissioned Officer Professi onal Development Guide, para. 2 -9 (7 Dec. 2017). Appellant’s authority over SPC M R was inherent i n his position as an NCO in theKELLER—ARMY 20150619

9 Army. As an NCO in a deployed e nvironment, SPC M R was subject to appellant’s
orders.

C. Ineffective Assistance of Counsel - Sentencing

Appellant alleges that his counsel were ine ffective in the pres entation of his sentencing case. Specifically, appellant claims that his couns el should have
introduced evidence of and argued about the loss of his retirem ent benefits if he was discharged fro m the Army. 6 Appellant has sub mitted documents on appeal that tend
to show that if he had retired i n 2018 and lived to the age of 80, the net present
value of his retirement benef its would be over $1.1 million.

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

. Strickland v. Washington , 466 U.S. 668, 687 (1984). The difficulty of appellant's burde n to establish ineffective of assist ance of coun sel—and it is his bu rden—was summarized by the Supreme Court as follows:

Surmounting Strickland 's high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver and forf eiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel’s representation is a most defer ential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of material s outside the record, and interacted with the client, w ith opposing counsel, and with the judge. It is all too tempting to second-guess
counsel’s assistance after conv iction or adverse sentence. The question is whether an a ttorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated f rom best practices or most

common custom.

6 By a matter of days, a ppellant’s crimes pr edate the effective date of the amended Article 56, UCMJ, manda ting a dishonorable d ischarge for an acc used convicted of rape. 10 U.S.C. § 8 56(b); National Defens e Authorization Act f or Fiscal Year 2014, Pub. L. No. 113-66 § 1705, 127 Stat. 672, 959 (Enacted December 26, 2013, Effective June 24, 2014).KELLER—ARMY 20150619

10 Harrington v. Richter , 562 U.S. 86, 10 5 (2011) (internal quot ations and citations omitted). 7

Appellant draws our attention t o three cases by our superior co urt. We
discuss each in turn.

In United States v. Griffin , our superior court stated:

The general rule concerning collateral consequences of a sentence is that “courts-martial [are] to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under
consideration.” We see no need to relax this rule today.

25 M.J. 423, 424 (C.A.A .F. 1998) (citing United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31 C.M.R. 195 , 198 (1962)). H owever, the court also held that with the agreement of the a ccused, it was no t error to ans wer a panel’s questions regarding the effect o n retirement benefits if one is punitivel y discharged from the
service. Id. at 425.

In United States v. Becker, 46 M.J. 141, 144 (C.A.A .F. 1997), the CAAF
found error when the m ilitary judge prohibi ted the introduction of eviden ce on the
loss of retirement bene fits for someone who se retirement was im minent. United

States v. Luster , 55 M.J. 67, 72 (C.A. A.F. 2001), stands fo r the same principal

.

None of these cases, however, stands for the principal that evi dence regarding
the loss of retirement benefits i s per se admissible. Indeed, in Luster , the CAAF stated, “Our decisions . . . do provide a military judge with a certain amount of
discretion in determin ing whether to allow evidence regarding t he loss of retirement benefits in a particular case.” Luster , 55 M.J at 71.

More importantly, assuming evide nce regarding retirement benefi ts was admissible in this case (and it likely would be) appellant has pointed us to no “prevailing profe ssional norm” th at would require counsel to su bmit such documents in each and every case in which a retirem ent eligible soldier i s being court-

7 Harrington involves application of Strickland through the lens of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a nd within the
context of federal col lateral review of a s tate criminal convic tion. See Harrington

, 562 U.S. at 100-09. We see those portions of the opinion addre ssing AEDPA, to
include the "doub ly" deferential standar d of review, to be inap plicable to an IAC claim reviewed by this C ourt on direct appeal. Id. at 105.KELLER—ARMY 20150619

11 martialed. See e.g. Strickland , 466 U.S. at 688. Tha t it is admissible does not mean
that counsel are defi cient if they do not seek its admission. We are required to assess whether “counsel’s representation was within the ‘wide r ange’ of reasonable professional assistance.” Harrington , 562 U.S. at 88 (quoting Strickland , 466 U.S. at 689). Only when counsel “made errors so ser ious that coun sel was not functioning as [] counsel” may w e grant relief for a violation of the Sixth
Amendment. See Harrington , 562 U.S. at 88 (quoting Strickland , 466 U.S. at 689).

Here, counsel’s failure to admi t documents regar ding the loss o f retiree
benefits must be understood wit hin the context of the other inf ormation presented to the panel. The military judge in structed the pane l that a puni tive discharge “deprives [appellant] of substantially all benefits administere d by the Department of
Veteran Affairs and th e Army establishment.” The panel was tol d that a punitive discharge “termi nates the accused’s status and the benefits tha t flow from that status, including the possibility of becomin g a military retire e, and receiving retiree pay and benefits.”

The panel knew the accused’s year s of service and the accused’s current pay. The panel was fully instructed on the consequences of adjudging a punitive discharge. Thus the question is not “why didn’t the defense co unsel put the issue of
the accused’s retirement in fr ont of the panel?” It was alread y squarely before the panel, courtesy of the standard sentencing instructions. Rathe r, the question is whether counsel perfo rmed deficiently whe n they did not give th e panel a precise
dollar estimate of the lost benefits.

Counsel submitted a lengthy “go od soldier book” and concentrate d their sentencing case on seeking leniency in light of appellant’s exc ellent career. The defense counsel emphasi zed in argument that appellant had worke d hard for the Army for 20 years. Coun sel walked the panel through his evalua tions, noted the commendations, and referenced letters of support . Counsel obta ined, introduced, and then quoted in ar gument comments from appellant’s battalion commander who praised his work ethic up throu gh the week of tri al. This is n ot a case where counsel were not acting as counsel.

We conclude that in this case the failure to introduce evidence on the value of lost retirement benefits did not result in a constitutionally d eficient performance. Additionally, we do not find that appellant has met his burden of establishing prejudice in this case for two reasons. First , appellant’s sen tence remains lenient. Appellant, along with three other NCOs, co nspired an d then drug ged and raped a junior enlisted soldier while de ployed. Appellant’s crime stri kes at the heart of the Army’s ability to perf orm its military miss ion. Indeed, the le niency of the sentence may be explained by the panel’s co nsideration of the loss of ap pellant’s retirement benefits. Second, given the sev erity of the offenses, we see n o reasonable possibility that this pa nel would not have ad judged a punitive discharge in this case.KELLER—ARMY 20150619

12 We assess as speculative the notion that even if the panel woul d have adjudged a punitive dis charge, they m ay have adjudged less conf inement had they known of the specific dollar amoun t attributable t o appellant’s lost retirement
benefits. To demonstr ate prejudice to sup port a claim of ineff ective assistance of counsel “[i]t is not enough to sh ow that the errors had some co nceivable effect on the outcome of the proceeding.’” Harrington, 562 U.S. at 105. (int ernal quotation and citation omitted). Rather, appellant must d emonstrate a re asonable possibility
that the outcome would have been different. Id . at 111. The Supreme Court described this standard as being only “slight[ly]” different fr om proof by a preponderance, and stated that the difference between the two s tandards “matters ‘only in the rarest of cases.’” Id . at 112 (quoting Strickland 466 U.S. at 693). The
likelihood of a different result must be substan tial, not just conceivable. Id.

CONCLUSION

On consideration of the entire record, and the a ssigned errors, to include those matters personally raised by appella nt pursuant to Grostefon , we hold the Specification of Charge VI, inde cent exposure, in violation of Article 120c, UCMJ, 10 U.S.C. §920c (2012), i s conditionally SET ASIDE and conditio nally

DISMISSED. See United States v. Britton , 47 M.J. 195, 203 (C .A.A.F. 1997) (J. Effron concurring); United States v. Hines , 75 M.J. 734, 738 n. 4 (Army. Ct. Crim. App. 2016); United States v. Woods , 21 M.J. 856, 876 (A. C.M.R. 1986). Our
dismissal is condition al on Specification 2 of Charge I survivi ng the “final judgment” as to the legality of t he proceedings. See Article 71(c)(1), UCMJ (defining final j udgment as to th e legality of th e proceedings) . The remaining findings of guilty and s entence are AFFIRMED.

Judge SALUSSOLIA and Ju dge ALDYKIEWICZ concur.

FOR THE COURT:

J OHN P. TAITT JOHN P. TAITT Acting Clerk of Court FOR THE COURT: