UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM S32625 (f rev)

________________________

UNITED STATES

Appellee

v.

Tucker L. BINEGAR

Staff Sergeant (E-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Upon Further Review

Decided 14 September 2022

________________________

Military Judge: Matthew D. Talcott; Andrew R. Norton (remand).

Sentence: Sentence adjudged on 11 June 2019 by SpCM convened at 

Tinker Air Force Base, Oklahoma. Sentence entered by military judge 

on 4 October 2019 and reentered on 29 March 2021: Bad-conduct discharge, confinement for 120 days, reduction to E-1, and a reprimand.

For Appellant: Major Ryan S. Crnkovich, USAF; Major Benjamin H. 

DeYoung, USAF; Major David A. Schiavone, USAF; Mark C. Bruegger, 

Esquire.

For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Lieutenant 

Colonel Dayle P. Percle, USAF; Major John P. Patera, USAF; Major 

Brittany M. Speirs, USAF; Mary Ellen Payne, Esquire; Deniz Gunaydin 

(legal intern).

1

Before JOHNSON, POSCH, and CADOTTE, Appellate Military Judges.

Judge CADOTTE delivered the opinion of the court, in which Chief 

Judge JOHNSON and Senior Judge POSCH joined. 

________________________

 

1 Mr. Gunaydin was supervised at all times by attorneys admitted to practice before 

this court. 
United States v. Binegar, No. ACM S32625 (f rev)

2

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

CADOTTE, Judge:

A special court-martial composed of a military judge sitting alone found 

Appellant guilty, in accordance with his pleas and pursuant to a pretrial agreement (PTA), of one specification of conspiracy to possess lysergic acid diethylamide (LSD), in violation of Article 81, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 881;

2 and one specification each of wrongful use of cocaine 

on divers occasions, wrongful use of LSD on divers occasions, and wrongful 

possession of LSD, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.

3 The 

convening authority initially approved the sentence as adjudged, then issued 

a second Decision on Action memorandum approving only 120 days of the adjudged five months’ confinement in accordance with the PTA.

4 Afterwards, the 

military judge entered a sentence of a bad-conduct discharge, confinement for 

120 days, reduction to the grade of E-1, and a reprimand.

Appellant’s case is before this court for the second time. Appellant initially 

raised one assignment of error: (1) whether Appellant was materially prejudiced by the Government’s failure to serve Appellant with a copy of the record 

of trial. The court raised a second issue: (2) whether the convening authority 

failed to take action on the entire sentence as required by Executive Order 

13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 

10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.)). Our 

court remanded Appellant’s case to the Chief Trial Judge, Air Force Trial Judiciary, to resolve the second issue. United States v. Binegar, No. ACM S32625, 

 

2 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial, 

United States (2016 ed.) (2016 MCM). Unless otherwise specified, all other references 

to the UCMJ and all references to the Rules for Courts-Martial are to the Manual for 

Courts-Martial, United States (2019 ed.). 

3 Appellant entered a plea of not guilty to a specification of wrongful distribution of 

LSD in violation of Article 112a, UCMJ, 10 U.S.C. § 912a (2016 MCM). The specification was withdrawn and dismissed pursuant to the PTA.

4 On 13 August 2019, the convening authority signed a Decision on Action memorandum, but failed to reduce Appellant’s confinement to 120 days as required by a term of 

the PTA. On 27 September 2019, before the military judge signed the EoJ, the convening authority signed a second Decision on Action memorandum in which he complied 

with this term.
United States v. Binegar, No. ACM S32625 (f rev)

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2021 CCA LEXIS 107, at *10–11 (A.F. Ct. Crim. App. 10 Mar. 2021) (unpub. 

op.).5

On 24 March 2021, the convening authority signed a third Decision on Action memorandum in which, in addition to the actions included in his previous 

decision to approve only 120 days of confinement, he approved the remainder 

of the adjudged sentence of a bad-conduct discharge, reduction to the grade of 

E-1, and a reprimand. On 29 March 2021, a new entry of judgment (EoJ) was 

completed. Subsequently, the record of trial was returned to this court. 

Once the case returned to this court, Appellant raised four additional assignments of error: (3) whether the military judge abused his discretion in refusing to admit evidence of the confinement conditions Appellant would suffer 

at a local confinement facility because, in the judge’s view, it constituted a “collateral matter” which could not be considered; (4) whether the conditions of 

Appellant’s confinement entitle him to relief on the basis of cruel and unusual 

punishment in violation of the Eighth Amendment6 and Article 55, UCMJ, 10 

U.S.C. § 855, or, in the alternative, whether Appellant is entitled to relief pursuant to Article 66, UCMJ, 10 U.S.C. § 866, because those conditions rendered 

his sentence inappropriately severe; (5) whether the convening authority 

abused his discretion in disapproving Appellant’s deferment request without 

articulating his reasons; and (6) whether the convening authority did not comply with a material term of the PTA by failing to unambiguously dismiss Specification 4 of Charge II with prejudice.

We find the convening authority’s latest action and the new EoJ remedy 

the error identified in our earlier opinion. We also find issue (1) does not warrant further discussion or relief. See United States v. Matias, 25 M.J. 356, 361 

(C.M.A. 1987). We dismiss Specification 4 of Charge II with prejudice in our 

decree. Finding no error materially prejudicial to a substantial right of Appellant, we affirm the findings and the sentence.

 

5 Subsequent to our remand, the United States Court of Appeals for the Armed Forces 

(CAAF) decided United States v. Brubaker-Escobar, 81 M.J. 471 (C.A.A.F. 2021) (per 

curiam). In Brubaker-Escobar, the CAAF held the convening authority committed a 

procedural error by taking no action on the sentence, when the case involved a conviction for at least one offense committed before 1 January 2019 and referral was after 

1 January 2019. Id. at 475. The CAAF tested the procedural error for material prejudice. Id.; see also United States v. Aumont, 82 M.J. 37 (C.A.A.F. 2021) (mem.) (remanding to our court to determine whether the procedural error of taking no action on the 

sentence materially prejudiced a substantial right of the appellant). 

6 U.S. CONST. amend. VIII.
United States v. Binegar, No. ACM S32625 (f rev)

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I. BACKGROUND

Appellant began using LSD sporadically in December 2016. Then, in the 

fall of 2018, Appellant began to use LSD more frequently. Appellant and another Airman (his roommate) conspired to obtain LSD from a source they located on the Internet. Appellant and his roommate downloaded an Internet 

application that allowed them to purchase the drug from a “Dark Web marketplace.” They purchased liquid LSD for $400.00 and had it shipped to their home 

in Moore, Oklahoma. In total, Appellant used LSD between 10 to 20 times. 

Appellant typically ingested between one to three doses on each occasion and 

used it with his roommate, other Airmen, and civilians. In addition to using 

LSD, Appellant also used cocaine by snorting it through a rolled dollar bill on

four occasions between 2016 and 2018.

II. DISCUSSION

A. Admission of Evidence of Confinement Conditions

Appellant asserts the military judge abused his discretion by refusing to 

admit evidence of potential adverse confinement conditions at Midwest City 

Jail because the military judge found those conditions to be a “collateral matter.” We are not persuaded that the military judge erred. 

1. Additional Background

During Appellant’s sentencing case, trial defense counsel offered a twopage exhibit marked as Defense Exhibit E for identification. The exhibit consisted of an email exchange between trial defense counsel and Lieutenant (Lt)

JH from Midwest City Jail. The email memorialized a telephone conversation 

trial defense counsel and Lt JH had that same day. At the time his counsel 

offered this exhibit, Appellant was not serving confinement nor was he confined before trial. In the email exchange, Lt JH confirmed the following points 

as relayed by trial defense counsel:

(1) Since Tinker [Air Force Base (AFB)] does not have a confinement facility, your facility houses all of their pretrial and posttrial confinees for up to six months.

(2) The confinees from Tinker [AFB] are separated from the general inmate [populace] and do not interact with each other. The 

Tinker [AFB] confinees remain in their 8x10 cell for the entirety 

of their stay, except when they have medical appointments, 

weekly visitation hours if they have visitors, and when showering. For the most part, the Tinker [AFB] confinees are in solitary 

confinement.

(3) There is no gym, recreational area, or outdoor area for use.
United States v. Binegar, No. ACM S32625 (f rev)

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(4) Confinees can read books but there is not TV or computer

access.

(5) [Midwest City Jail] does not have any rehabilitation programs, such as substance abuse treatment or counseling, that 

[A]irmen are allowed to participate in.

Trial defense counsel argued the exhibit demonstrated his understanding 

that if confinement were adjudged, then Appellant would be placed into “solitary” confinement at Midwest City Jail and the exhibit is evidence in mitigation. Trial counsel objected to the admission of the exhibit, arguing that the 

conditions at the jail were a collateral matter. After hearing argument from 

counsel for both parties, the military judge ruled that the exhibit referenced a 

collateral matter and sustained the Government’s objection. The military judge 

explained why he did not admit the exhibit: 

Defense Exhibit E for identification will not be admitted nor be 

considered by this court. I reviewed the document and it’s clear 

to this [c]ourt at least, this is collateral matter and that is describing the staff, circumstances, current procedures of that confinement facility, presumably the Defense thinks the [Appellant] 

would spend his confinement, or majority of his confinement, or 

a portion of his confinement at, all that is subject to change. It’s 

just clear to this [c]ourt that this is a collateral matter and not a 

subject for the [c]ourt should be considering in crafting an appropriate punishment. P[er]haps it would be appropriate materials, or not, for the [c]onvening [a]uthority to consider on clemency requests, and referral requests, I think the [c]onvening

[a]uthority has the authority to decide on the confinement facility final location, but this [c]ourt does not because it is a collateral matter.

2. Law

We review a military judge’s decision to admit or exclude sentencing evidence for an abuse of discretion. United States v. Stephens, 67 M.J. 233, 235 

(C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 

2000)). A military judge abuses his discretion when (1) the findings of fact upon 

which he bases his ruling are not supported by the evidence of record; (2) he 

uses incorrect legal principles; or (3) his application of the correct legal principles to the facts is clearly unreasonable. United States v. Ellis, 68 M.J. 341, 

344 (C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 

2008)).

“The general rule concerning collateral consequences is that ‘courts-martial 

[are] to concern themselves with the appropriateness of a particular sentence 
United States v. Binegar, No. ACM S32625 (f rev)

6

for an accused and his offense, without regard to the collateral administrative 

effects of the penalty under consideration.’” United States v. Griffin, 25 M.J. 

423, 424 (C.M.A. 1988) (alteration in original) (citation omitted). “A collateral 

consequence is ‘[a] penalty for committing a crime, in addition to the penalties 

included in the criminal sentence.’” United States v. Talkington, 73 M.J. 212,

215 (C.A.A.F. 2014) (alteration in original) (internal quotation marks and citations omitted).

3. Analysis

The focus of sentencing proceedings is the character of an appellant and his 

offenses in order “to prevent ‘the waters of the military sentencing process’

from being ‘muddied’ by ‘an unending catalogue of administrative information.’” Talkington, 73 M.J. at 216 (citations omitted). Defense Exhibit E for 

identification constitutes a select description of prison conditions that a military confinee might face at Midwest City Jail. As such, it was speculative at 

sentencing to assume conditions Appellant might be likely to experience.

In United States v. Cueto, __ M.J. __, No. 21-0357, 2022 CAAF LEXIS 517,

*18 (C.A.A.F. 19 Jul. 2022), the United States Court of Appeals for the Armed 

Forces (CAAF) examined whether trial defense counsel was ineffective for failing to expressly mention administrative discharge requirements in sentencing 

argument. In concluding that trial defense counsel’s performance was not deficient, the CAAF explained that the military judge could not “determine 

whether an administrative discharge would occur based on the Air Force Instruction without holding a trial within a trial, and even such a trial within a 

trial could produce only a speculative result.”

Here, we similarly conclude that the military judge did not abuse his discretion by refusing to admit evidence of confinement conditions at Midwest 

City Jail. Resolving where, and under what conditions, Appellant would be 

confined would require “a trial within a trial” to achieve a speculative result 

and detract from the purpose of sentencing proceedings.

B. Post-Trial Confinement Conditions

Appellant claims that he was subjected to cruel and unusual punishment

in violation of the Eighth Amendment and Article 55, UCMJ, when he was 

confined at Midwest City Jail. In the alternative, Appellant asks this court to 

grant relief under its Article 66, UCMJ, authority. We are not persuaded relief 

is warranted.

1. Additional Background

Upon announcement of his sentence on 11 June 2019, Appellant was transferred to Midwest City Jail where he remained until released just over three 

months later. Appellant alleges he was held in solitary confinement.
United States v. Binegar, No. ACM S32625 (f rev)

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On 21 June 2019, Appellant submitted a request for clemency to the convening authority. In the request Appellant stated:

I am isolated in solitary confinement within a cell that has no 

windows and just a slot in the door to insert a food tray. The 

lights are on and they never completely shut off in the evening, 

instead the lights only slightly dim during sleeping hours. I stay 

in this cell 24 hours a day, 7 days a week. The only time I am 

ever able to leave my cell is for any appointments on base, to 

shower, or if I have any visitors. During my on-base appointments, I am escorted around the base in shackles. I have no access to a gym, recreational room, or outside area at this facility. 

I do not have access to a TV or a computer. My uniform of the 

day is the orange jumpsuit worn by other inmates in the facility. 

Even my meals and books are delivered to me with minimal human contact as they are just slid through the slot in my door.

Appellant further explained that he had made significant progress in the treatment of his depression before his court-martial, but he felt he lost that progress 

as a result of these conditions. Appellant requested the convening authority 

reduce his confinement.

On 23 February 2022, we granted Appellant’s motion to attach documents,7

which included a declaration from Appellant stating:

I served my entire sentence to confinement at Midwest City 

[J]ail. Throughout the duration of my confinement at Midwest 

City [J]ail, I was in solitary confinement. I was not placed in solitary confinement for any disciplinary reason. It was just where 

the facility decided to house me. My cell had no windows. The 

only opening was a slot in the door to insert a food tray. The 

lights were always on and never completely turned off. I was restricted to my cell for 24 hours a day, seven days a week. The 

only time I was permitted to leave my cell was when I had an

appointment on base, to shower, or if I had a visitor. There was 

no gym or recreation room that I was permitted to use, either 

indoors or outdoors. My meals were delivered to me through the

slot in my cell door.

 

7 We consider the declaration, to include the attachments, necessary to resolve an issue 

“raised by the record but [ ] not fully resolvable by the materials in the record,” and to 

determine whether Appellant’s Eighth Amendment and Article 55, UCMJ, 10 U.S.C. 

§ 855, rights were violated. United States v. Jessie, 79 M.J. 437, 442–44 (C.A.A.F. 

2020).
United States v. Binegar, No. ACM S32625 (f rev)

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[ ] These conditions took a significant toll on my mental health 

and wellbeing, especially since I already suffered from depression at the time I was sentenced to confinement. Being placed in 

isolation, especially for someone with a preexisting mental 

health condition like myself, is a cruel fate. My time in solitary 

confinement caused me significant anxiety and worsened my depression. I still continue to experience panic attacks when I 

think about it, and there are times I cannot sleep at night when 

I think about it.

On 24 March 2022, we granted the Government’s motion to attach documents which included a 23 February 2022 declaration of Lt FV from the Midwest City Police Department.

8 Lt FV was assigned as the Administrative Assistant over Midwest City Jail. He stated in the declaration:

The Midwest City Jail is a small facility housing a maximum of 

seventy (70) inmates but due to recent changes in local laws the 

jail averages approx[imately] 12 inmates on a daily basis. This 

includes civilian and military inmates. The civilian inmates are 

separated by gender, with the male inmates being housed in one 

area and the female inmates being held in another. Military inmates are separated from other civilian inmates as well as by 

both gender and status (i.e. pre or post-trial). It is not unusual 

for our facility to house multiple military inmates. When that 

happens – provided they are in the same status – they are 

housed in the same cell. But if there are no other military inmates, that individual will not have any cellmates. [Appellant] 

was housed in B1, B2, and C2 during his stay at the Midwest 

City Jail. Inmates are moved to different areas for different reasons to include discipline, medical reasons, as well as issues with 

facility maintenance (i.e. electrical repairs, plumbing repairs, 

etc.). I do not know why [Appellant] was moved but have no records of any disciplinary actions during his stay.

Our records indicate that [Appellant] was held at our facility for 

a little more than three months – 11 June 2019 at 1900 hours 

through 20 September 2019 at 0838 hours. There was not another post-trial military inmate in the facility at that time to be 

housed with him. [Appellant] was held in B dorm as well as C 

 

8 We consider the declaration necessary to resolve an issue “raised by the record but [ ] 

not fully resolvable by the materials in the record,” and to determine whether Appellant’s Eighth Amendment and Article 55, UCMJ, 10 U.S.C. § 855, rights were violated.

Jessie, 79 M.J. at 442–44.
United States v. Binegar, No. ACM S32625 (f rev)

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dorm, B1 and B2 are single cells and C2 . . . can hold four (4) 

inmates. The Midwest City Jail attempts to house inmates in 

the larger cells when available but this is not always possible 

when there is only one pre-trial/post-trial inmate at our facility 

since we also have special confinement needs for other inmates 

as well.

Lt FV explained that the “Midwest City Jail does not have a recreation yard 

or exercise facility for any of [the] inmates, however the cells are large enough 

for the inmates to do body weight exercises (e.g., pushups, sit-ups, jumping 

jacks) and inmates have access to our library to read books.” Inmates are also 

permitted to shower whenever they wish, and to leave the cell for on-base appointments, visitors, and church service held at the jail twice a week. Appellant 

had 18 visits according to records that did not track additional visits by command staff. According to Lt FV, lights in the jail are only dimmed during sleeping hours to allow for “proper functioning of the security cameras” monitoring 

the cells.

Lt FV stated that Midwest City Jail has a grievance system which is briefed 

to the inmates, however he was unable to find any complaints from Appellant 

in that system. Attached to Lt FV’s declaration was a copy of Appellant’s medication log, visitation log, confinement order, a statement of confinement agreement, and booking sheet.

The Government’s motion to attach included a declaration of one of Appellant’s two first sergeants during the time he was confined. The first sergeant 

recalled visiting Appellant on at least three occasions, either by herself or 

sometimes with the other first sergeant. Although she was unsure whether the 

commander accompanied her during one of those visits, she believed the other 

first sergeant conducted at least one visit with Appellant on her own. The first 

sergeant recalled meeting with Appellant at different locations in the jail. Each 

time, they were together in the same room and never separated by glass. During those visits, Appellant did not complain about the conditions of confinement or ask for command intervention on any issue.

The Government’s motion to attach also included a declaration of the noncommissioned officer in charge (NCOIC) of the confinement section at Tinker 

AFB. The NCOIC explained that Appellant received 20 days credit against his 

120-day sentence to confinement for good time. During the period that Appellant was confined, Appellant was escorted to 12 appointments on base. The 

appointments included five trips for mental health treatment, four trips for 

medical appointments, two trips to participate in an alcohol and drug abuse 

prevention and treatment program, and one trip to the area defense counsel.
United States v. Binegar, No. ACM S32625 (f rev)

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2. Law

Claims that the Government violated Article 55, UCMJ, and the Eighth 

Amendment are reviewed de novo. United States v. Wise, 64 M.J. 468, 473 

(C.A.A.F. 2007) (citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 

2001)). Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and 

unusual punishment. In general, when a claim is raised pursuant to Article 55, 

UCMJ, we apply the United States Supreme Court’s interpretation of 

the Eighth Amendment except where it is apparent that legislative intent provides greater protections under Article 55. See United States v. Avila, 53 M.J. 

99, 101 (C.A.A.F. 2000).

“[T]he Eighth Amendment prohibits two types of punishments: (1) those 

incompatible with the evolving standards of decency that mark the progress of 

a maturing society or (2) those which involve the unnecessary and wanton infliction of pain.” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (internal quotation marks and citations omitted). “The Constitution ‘does not 

mandate comfortable prisons,’ but neither does it permit inhumane 

ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).

“A violation of the Eighth Amendment is shown by demonstrating: (1) an 

objectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounting to 

deliberate indifference to [an appellant]’s health and safety; and (3) that [an 

appellant] has exhausted the prisoner-grievance system . . . and that he has 

petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938 [2000].” Lovett, 

63 M.J. at 215 (omission in original) (footnotes omitted) (quoting United States 

v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)). Under a deliberate indifference 

standard, “prison guards and officials must be consciously aware of the risk or 

danger to the inmate and choose to ignore it; they must have been aware of the 

harm or risk of harm caused appellant, and continued anyway.” United States 

v. Sanchez, 53 M.J. 393, 396 (C.A.A.F. 2000).

Solitary confinement is not a per se Eighth Amendment violation. United 

States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citing Sostre v. McGinnis, 442 

F.2d 178, 192 (2d Cir. 1971)). Rather, the totality of the circumstances of the 

confinement conditions are considered in determining whether a sufficiently 

serious deprivation under the Eighth Amendment has been shown. Id. at 102.

The length of a period of segregation “does not, by itself, constitute cruel and 

unusual punishment, but is simply a factor to be considered along with the 

other aspects of confinement.” Id. (observing “courts have also rejected the contention that deprivation of human contact, including the harmful effect it may 

potentially have on a prisoner’s mental health, violates the Eighth Amendment”).
United States v. Binegar, No. ACM S32625 (f rev)

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Courts of Criminal Appeals have the authority under Article 66, UCMJ, to 

grant sentence appropriateness relief for post-trial confinement conditions 

even when they do not amount to cruel and unusual punishment, but where 

there is nonetheless a legal deficiency in the post-trial confinement conditions. 

United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. 2015), aff'd, 75 M.J. 264 

(C.A.A.F. 2016); see also United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 

2002) (affirming a broad authority of Courts of Criminal Appeals to review and 

modify sentences pursuant to Article 66, UCMJ).

3. Analysis

Appellant in his clemency submission, brief, and declaration describes his 

circumstances at Midwest City Jail as solitary confinement. Some aspects of 

that description are fittingly analogous to a secluded setting as this phrase 

might suggest; however, the declarations as a whole demonstrate that many 

are not. We have considered whether a post-trial evidentiary hearing is required to resolve any factual disputes between Appellant’s declarations and 

those provided by the Government. See United States v. Ginn, 47 M.J. 236, 248

(C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 147, 413 (C.M.A. 1967) (per 

curiam). In this case we find a hearing unnecessary. To the extent the documents may be inconsistent, resolving any factual disputes in Appellant’s favor 

would not result in relief. See Ginn, 47 M.J. at 248.

In order to secure relief for cruel or unusual confinement conditions, Appellant bears the burden to demonstrate all three prongs of the test articulated 

in Lovett are met. 63 M.J. at 215. Appellant has failed to do so. Prison records 

show Appellant was permitted numerous visits while confined at Midwest City 

Jail when it was sparsely populated with inmates. During several welfare 

checks from his command’s first sergeants, Appellant did not complain about 

isolation or ask his chain of command to intervene to correct this or other conditions he now claims were injurious to his health and welfare. Significant too, 

Appellant was routinely taken from his confinement to on-base appointments. 

Considering all the declarations before this court, Appellant’s case does not 

involve conditions of complete and protracted isolation from human contact, 

much less for a disciplinary or punitive reason.9

Appellant concedes he did not attempt to file an Article 138, UCMJ, complaint seeking administrative relief regarding confinement conditions. Further, Appellant has failed to demonstrate he has exhausted the prisoner grievance system at Midwest City Jail. Despite these deficiencies, Appellant argues 

his clemency submission satisfies the last prong of the Lovett test. We disagree 

 

9 In addition to contact with visitors, command staff, and with personnel during onbase visits, records show daily interaction with guards who gave Appellant his medicine.
United States v. Binegar, No. ACM S32625 (f rev)

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because “[e]xhaustion requires Appellant to demonstrate that two paths of redress have been attempted, each without satisfactory result. Appellant must 

show that ‘absent some unusual or egregious circumstance . . . he has exhausted the prisoner-grievance system [in his detention facility] and that he 

has petitioned for relief under Article 138.’” Wise, 64 M.J. at 471 (omission and 

alteration in original). Appellant has not done so. Even if Appellant’s clemency 

submission might satisfy the requirement to file an Article 138 complaint, Appellant still failed to exhaust his administrative remedies by not availing himself of a prison grievance system. 

Appellant’s failure to pursue administrative remedies undermines his 

claim in another respect. “The Eighth Amendment does not outlaw cruel and 

unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’” Farmer v. 

Brennan, 511 U.S. 825, 837 (1994). In that regard, “an official’s failure to alleviate a significant risk that he should have perceived but did not, while no 

cause for commendation, cannot under our cases be condemned as the infliction 

of punishment.” Id. at 838. Appellant argues the conditions alone establish a 

necessary culpable state of mind because “prison officials and the United 

States Air Force” are “continuing to contract with the Midwest City [J]ail.”

However, Appellant’s failure to exhaust the prisoner grievance system failed 

to put prison officials on notice as required under a deliberate indifference 

standard. Moreover, Appellant has not demonstrated such officials were otherwise on notice of Appellant’s assertedly harmful situation. Accordingly, Appellant has failed to demonstrate officials were consciously aware of a risk or 

danger and chose to ignore it. Appellant’s argument falls far short of demonstrating a culpable state of mind of an identifiable official amounting to deliberate indifference to Appellant’s health and safety that resulted in denial of 

necessities. See Lovett, 63 M.J. at 215.

Appellant asserts, in the alternative, that confinement conditions and postconfinement treatment warrant relief pursuant to Article 66(d), UCMJ,

and Gay. When considering Article 66-based claims, we have declined to require that appellants demonstrate that they have previously exhausted administrative remedies prior to seeking judicial relief. See United States v. Henry, 

76 M.J. 595, 610 (A.F. Ct. Crim. App. 2017). We instead consider the entire 

record and typically give “significant weight” to an appellant’s failure to exhaust those remedies before requesting judicial intervention. Id. This court has 

considered the non-exhaustive list of factors we consider when evaluating the 

appropriateness of Tardif relief. See Gay, 74 M.J. at 744. On the whole, we find 

that Appellant’s claims do not merit sentencing relief.

C. Denial of Deferment Request

Appellant argues the convening authority’s failure to articulate his reasons 

for denying Appellant’s deferment request amounted to an abuse of discretion. 
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We agree the convening authority erred by failing to include a reason for denying Appellant’s request to defer his reduction in grade. However, we find no 

relief is warranted.

1. Additional Background

On 21 June 2019, Appellant submitted a request for deferment of reduction 

in grade and waiver of automatic forfeitures. Appellant requested the deferment and waiver in order to provide financial support to his dependent daughter. On 1 August 2019, the convening authority denied the deferment request, 

but granted the waiver request in part by authorizing $300.00 to be paid for 

the benefit of Appellant’s daughter. We noted in our previous opinion the original EoJ erroneously stated “[n]o action was taken on this request” and the 

convening authority did not provide reasons for his denial of the deferment 

request. Binegar, unpub. op. at *4. We deferred further consideration of this 

issue until Appellant’s record was returned to this court. Id.

After our remand, on 24 March 2021, the convening authority signed a

third Decision on Action memorandum which states: “On 21 June 2019, the 

[Appellant] requested deferment of the reduction in grade. On 1 August 2019, 

deferment was denied.” The convening authority did not give a reason for the 

denial.

Following Appellant’s submission of assignments of error, we granted the 

Government’s motion to attach four documents, one of which was a declaration 

from the convening authority, dated 10 March 2022.

10 In that declaration, the 

convening authority explained his reasons for denying Appellant’s request to 

defer reduction in grade: 

I denied the deferment request due to the nature of the offenses 

for which he was convicted, the sentence adjudged, and [Appellant’s] character, family situation, and service record. The limited purpose for which [Appellant] requested deferment of his 

reduction in grade did not outweigh our community’s interest in 

the imposition of his punishment on its effective date. Moreover, 

the partial waiver of forfeitures was sufficient to meet [Appellant’s] stated need. In my judgment, denying the deferment request, while also partially approving the waiver request, balanced [Appellant’s] need to provide financial support for his 

daughter with the need for good order and discipline in my command. Therefore, I directed that $300[.00] pay per month for a

 

10 We consider the declaration necessary to resolve an issue “raised by the record but 

[ ] not fully resolvable by the materials in the record,” Jessie, 79 M.J. at 442, namely, 

the convening authority’s decisions with respect to deferral and action on the sentence.
United States v. Binegar, No. ACM S32625 (f rev)

14

period of six months, or release from confinement, or expiration 

of his term of service, whichever was sooner, was to be placed 

into a bank account for the benefit of his daughter.

2. Law

The CAAF has stated that the convening authority’s decision on a deferral 

request “must include the reasons upon which the action is based” in order to 

facilitate judicial review. United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), 

overruled on other grounds by United States v. Dinger, 77 M.J. 447, 453

(C.A.A.F. 2018) (footnote omitted).

We review a convening authority’s denial of a deferment request for an 

abuse of discretion. Sloan, 35 M.J. at 6; Rule for Courts-Martial (R.C.M.)

1103(d)(2). In order for appellate courts to determine whether the convening 

authority’s denial was an abuse of discretion, the convening authority’s action 

“must include the reasons upon which the action is based.” Sloan, 35 M.J. at 7

(footnote omitted). When a convening authority fails to set out reasons for 

denying a deferment request, we look for indications the convening authority 

considered relevant factors such as those in R.C.M. 1103(d)(2) or considered 

advice presented by the staff judge advocate or the special court-martial convening authority. See United States v. Frantz, No. ACM 39657, 2020 CCA 

LEXIS 404, at *57 (A.F. Ct. Crim. App. 10 Nov. 2020) (unpub. op.). Additionally, relief is warranted upon “credible evidence that a convening authority 

denied a request to defer punishment for an unlawful or improper reason . . . .”

United States v. Eppes, No. ACM 38881, 2017 CCA LEXIS 152, at *43 (A.F. Ct. 

Crim. App. 21 Feb. 2017) (unpub. op.) (citing United States v. Zimmer, 56 M.J. 

869, 874 (A. Ct. Crim. App. 2002)), aff'd, 77 M.J. 339 (C.A.A.F. 2018).

To correct an “error in the action of the convening authority,” a party may 

file a post-trial motion within five days of receiving the convening authority’s 

action. R.C.M. 1104(b)(1)(F), (b)(2)(B). If the military judge finds “any post-trial 

action by the convening authority is incomplete, irregular, or contains error,” 

the military judge may return the action to the convening authority for correction. R.C.M. 1104(b)(2)(B)(i). A party may also file a post-trial motion to address “[a]n allegation of error in the post-trial processing of the court-martial.” 

R.C.M. 1104(b)(1)(E).

“[F]orfeiture is the failure to make the timely assertion of a right.” United 

States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United States v. 

Olano, 507 U.S. 725, 733 (1993)). We review forfeited issues for plain error.

Id. (citing United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008)). In analyzing for plain error, we assess whether (1) there was error; (2) it was plain 

or obvious; and (3) the error materially prejudiced a substantial right of the 

appellant. See United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citation 

omitted).
United States v. Binegar, No. ACM S32625 (f rev)

15

3. Analysis

The convening authority was required to provide the reason he denied Appellant’s deferment request. The Government concedes the convening authority “should have expressly stated his reasons for denying the deferment request.” The Government does not argue the requirement articulated by the 

CAAF in Sloan is inapplicable to cases referred after 1 January 2019. We find 

that requirement continues to apply to cases, like Appellant’s, referred after 

1 January 2019. See Article 57(b), UCMJ, 10 U.S.C. § 857(b); R.C.M. 1103.

The convening authority erred by failing to include a reason for denying 

Appellant’s request to defer his reduction in grade in his decision memorandum. However we do not find prejudice as Appellant has not shown how that

failure potentially affected Appellant’s opportunity for a more favorable clemency decision or relief from this court. Having considered the totality of the 

record, we conclude Appellant has failed to demonstrate prejudice arising from 

the convening authority’s failure to state his reasons when he denied the requested deferment.

D. Dismissal of Specification 4 of Charge II with Prejudice

Appellant argues the convening authority did not comply with a material 

term of the PTA by failing to unambiguously dismiss Specification 4 of Charge 

II with prejudice. We agree and dismiss the specification with prejudice in our 

decree.

1. Additional Background

Appellant submitted a PTA offer to the convening authority, which was approved and accepted on 6 June 2019. The PTA required the convening authority, inter alia, to: “[w]ithdraw Specification 4 of Charge II upon acceptance of 

[Appellant’s] guilty plea and dismiss Specification 4 of Charge II with prejudice 

upon announcement of sentence.” At trial, the military judge reviewed this 

term with Appellant and explained, “Because [dismissal of Specification 4 of 

Charge II] is with prejudice, you cannot be tried for it at a later point.” After 

accepting Appellant’s guilty plea, the military judge engaged in the following 

exchange with trial counsel:

[Military Judge (MJ)]: All right, Trial Counsel, I have accepted 

the guilty plea. Do you wish now to, on behalf of the Convening 

Authority, to withdraw Specification Four of Charge Two?

[Trial Counsel (TC)]: Your Honor, the Government would prefer 

to do that after the announcement of sentence, in accordance 

with the PTA, just to keep aligned with the language at issue.
United States v. Binegar, No. ACM S32625 (f rev)

16

MJ: Trial Counsel, I think what the PTA says, after I accept the 

guilty plea, the Convening Authority withdraws, and after I announce the sentence, he dismisses.

TC: Understood Your Honor, and certainly (INAUDIBLE).

MJ: So Trial Counsel, I don’t think I need you to markup the 

form or charge sheet, at this time. You tell me the Convening 

Authority is withdrawing Charge Four, Specification Two [sic], 

it’s done.

TC: Yes, Your Honor.

MJ: Then I’ll announce the findings of the Court that will be on 

the Charges and Specifications before me, if that makes sense.

TC: Yes, Your Honor.

MJ: Okay.

TC: Your Honor, at the direction of the Convening Authority, the 

Government is withdrawing Specification Four of Charge Two.

After this exchange, the military judge found Appellant guilty of the remaining charges and specifications in accordance with his pleas. The military 

judge then explained, “So to be sure that there is no confusion, Specification 

Four of Charge Two had been withdrawn, so that was not included in my announcement. It was not even addressed.”

At some point, the assistant trial counsel lined through Specification 4 of 

Charge II and wrote that it was dismissed on 11 June 2019. The Statement of 

Trial Results (STR), completed the same day, states Specification 4 of Charge 

II, was “Withdrawn and dismissed per [the pretrial agreement], dated 3 June 

2019.” The convening authority did not reference dismissal of the specification 

in any of the Decision on Action memoranda completed for Appellant’s case. 

Likewise, the original, and corrected copies, of the EoJ state the specification 

was withdrawn and dismissed, but fail to state that dismissal was with prejudice.

2. Law

“A pretrial agreement in the military justice system establishes a constitutional contract between the accused and the convening authority.” United 

States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (citing United States v. Lundy, 

63 M.J. 299, 301 (C.A.A.F. 2006)). “In a criminal context, the [G]overnment is 

bound to keep its constitutional promises.” Lundy, 63 M.J. at 301. “When an 

appellant contends that the [G]overnment has not complied with a term of the 

agreement, the issue of noncompliance is a mixed question of fact and law.” 
United States v. Binegar, No. ACM S32625 (f rev)

17

Smead, 68 M.J. at 59 (citing Lundy, 63 M.J. at 301). An appellant has the burden to establish both materiality and noncompliance. Lundy, 63 M.J. at 302. 

“In the event of noncompliance with a material term, we consider whether the 

error is susceptible to remedy in the form of specific performance or in the form 

of alternative relief agreeable to the appellant.” Smead, 68 M.J. at 59 (citation 

omitted).

Our superior court and this court have previously found a convening authority’s failure to dismiss charges and specifications with prejudice when required by the terms of a PTA to be a material violation that warrants corrective 

action. See, e.g., United States v. Malacara, 71 M.J. 380 (C.A.A.F. 2012) (mem.); 

United States v. Marable, No. ACM 39954, 2021 CCA LEXIS 662 (A.F. Ct. 

Crim. App. 10 Dec. 2021) (unpub. op.); United States v. Pullings, No. ACM 

39948, 2021 CCA LEXIS 648 (A.F. Ct. Crim. App. 30 Nov. 2021) (unpub. op.).

3. Analysis

The military judge’s colloquy with Appellant informed the Appellant that 

Specification 4 of Charge II was to be dismissed with prejudice in accordance 

with the PTA. However, the record does not support that the convening authority actually followed through and dismissed that specification with prejudice. At no point does the trial counsel announce that specification was dismissed with prejudice. Also, the charge sheet, the STR, and the EoJ do not 

reflect that specification was dismissed with prejudice. After considering the 

entire record, we find the convening authority has failed to comply with the

material term of the pretrial agreement. See Malacara, 71 M.J. at 380.

We now turn to the appropriate remedy. Appellant requests this court “dismiss Specification 4 of Charge II with prejudice.” The Government requests we 

modify the EoJ “to ensure the post-trial paperwork reflects the benefit of Appellant’s bargain,” or, in the alternative, that we “dismiss the affected specification with prejudice.” After consideration of the proposed remedies, we do not 

find modification of the EoJ appropriate. Even if, as a general matter, we were 

to modify the EoJ, the record does not support that the convening authority 

actually dismissed this specification with prejudice. Consequently, modification of the EoJ is not available to effectuate an action which the convening

authority failed to take. Accordingly, we grant Appellant’s requested remedy 

and the alternative remedy purposed by the Government in our decree.

III. CONCLUSION

Specification 4 of Charge II is DISMISSED WITH PREJUDICE. The 

findings and sentence as entered are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 

59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
United States v. Binegar, No. ACM S32625 (f rev)

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Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court