## U NITED 

## S TATES 

## A IR 

## F ORCE 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_______ _______ __________

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 S tates Air Force Trial Judiciary

Upon Further Review

Decided 14 September 2022

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

. S entence : Sentence adjudged on 11 June 2019 by Sp CM 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2 This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4.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 m ilitary judge sitting alone found Appellant guilty , in accordance with his pleas and pursuant to a pre trial agreement (PTA)

, of one specification of conspiracy to possess l ysergic a cid d iethylamide (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

conven ing 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

, t he military judge entered a sentenc e 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 pr ejudiced 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.) ) . O ur court remanded Appellant’s case to the Chief Trial Judge, Air Force Trial Judiciary, to resolve the second issue

. United S tates v. Binegar , No. ACM S32625

,

2 References to the punitive artic les 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 R ules 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 1 12a , UCMJ, 10 U.S.C. § 9 12a (2016 MCM). The specification was withdrawn and dismissed pursuant to the PTA

.

4 On 13 August 2019, the convening authority signed a D ecision on A ction memorandum, but failed to reduce Appellant’s confinement to 120 days as requ ired by a term of
the PTA . On 27 September 2019, before the military judge signed the EoJ, the convening authority signed a second D ecision on A ction memorandum in which he complied
with this term

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

3 2021 CCA LEXIS 1 07 , at * 10

– 11 (A.F. Ct. Crim. App. 10 Mar . 2021) (unpub. op.). 5

O n 24 March 2021, the convening authority signed a third D ecision on A ction memorandum in which , in addition to the actions included in his previous
decision to approve only 120 days of confinement

, he approv ed the remainder
of the adjudged sen tence of a bad

- conduct discharge, reduction to the grade of
E

- 1, and a reprimand

. O n 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 discre tion in refusing to admit evidence of the confinement conditions A ppellant 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
A ppellan t’s confinement entitle him to relief on the basis of cruel and unusual punishment in violation of the Eighth Amendment 6 and Article 55, UCMJ, 10 U.S.C. § 855, or, in the alternative, whether A ppellant is entitled to relief pursuant to A rticle 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 A ppellant’s deferment request without

art iculating his reasons; and (6) whether the convening au thority did not comply with a material term of the PTA by fa iling to unambiguously dismiss S pecification 4 of Charge II with prejudice

. We find the convening authority’s latest action and the new EoJ remedy
the error ide ntified in our earlier opinion. We a lso 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 aprocedural 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 proce dural 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. C ONST. amend. V III

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

4 I. B ACKGROUND
Appellant began using LSD sporadically in December 2016. Then, in thefall of 2018, Appellant began to use LSD more frequently. Appellant and another Airman (his roommate) conspired t o obtain LSD from a source they located on the Internet. Appellant and his roommate downloaded an Internetapplication 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 h ome 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. D ISCUSSION

A. Admission of Evidence of Confinement Conditions

Appellant asserts the military judge abused his discretion by refusing to
admit evidence of potential ad verse 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 co unsel offered a two

page 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 J ail. 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 post

trial 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 ha ve 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)

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

access.
(5) [Midwest C ity 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 heari ng 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 identificati on will not be admitted nor be considered by this court. I reviewed the documen t 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 c hange. 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 r eferral requests, I think the [c] onvening [a] uthority has the au thority to decide on the confinement facility final location, but thi s [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) heuses 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 sentenceUnited States v. Binegar , No. ACM S32625 (f rev)

6 for an accused and his offense, without regard to the collateral administrative effects of the pena lty 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 sentenc e.’” United States v. Talkington , 73 M.J. 212,
215 (C.A.A.F. 2014) (alteration in original) (internal quotation marks and citation s omitted).

3. Analysis

The focus of s entencing 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 confine e 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. 2 1

- 03 57 , 202 2 CAAF LEXIS 517

, *18 (C.A.A.F. 19 Jul . 202 2 ) , 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

arg u ment . In concludin g that trial defense counsel’s performance was not deficient, the CAAF explained that the military judge could not “ determinewhether an administrative discharge would occur based on the Air Force Instruction without holding a trial within a trial, and eve n such a trial within a trial could produce only a speculative result .”

Here, w e similar ly conclude that t he 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 su bjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 55, UCMJ, when he was
confine d at Midwest City Jail

. In the alternative, Appellant asks this court to grant relief under its Article 66, UCMJ, authority. We are not pe rsuaded 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 release d just over three
months later

. Appellant alleges he was held in solitary confinement

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

7 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 c ell 24 hours a day, 7 days a week. The only time I am ever able to leave my cell is for any appoi ntments 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 signifi cant 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 , w e granted Appellant’s mo tion 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 pl aced 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, o r if I had a visitor. There was no gym or recreation room that I was permitted to use, eith er 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 Ei ghth 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)

8 [ ] 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 confi nement. 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 P olice Department

. 8 L t FV was a ssigned as the Admi nistr ative 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 ano ther. 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 arehoused 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 differe nt 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 r ecords indicate that [Appellant] was held at our facility for
a little more than three months

– 11 June 2019 at 1900 hoursthrough 20 September 2019 at 0838 hours. There was not another post

- trial military inmate in the facility at that time to be
housed w ith 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)

9 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 f or 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, jum ping jacks) and inmates have access to our library to read books.” Inmates are also permit t ed 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 Midwe st 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 L t 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 visit ing Appellant on at least three occa sions, 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. Eachtime, 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 n oncommissioned o fficer in c harge (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
med ical 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)

10 2. Law

Claims that the Government violated Article 55 , UCMJ, and the Eighth
Amendme nt 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 pursua nt 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 protection s 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 neithe r does it permit inhumane
ones.” Farmer v. Brennan , 511 U.S. 825, 832 (1994) (qu oting Rhodes v. Chapman , 452 U.S. 337, 349 (1981))

.

“ A violation of the Eighth Amendment is shown by demonstrating: (1) anobjectively, sufficiently serious act or omission resulting in the denial of necessities; (2) a culpable state of mind on the part of prison officials amounti ng to deliberate indifference to [an appellant] ’ s health and safet y; and (3) that [an appellant] has exhausted the prisoner

- grievance system . . . and that he has petitioned for relief under Ar ticle 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 an d 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)

. S olitary 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. McGinn is , 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)

11 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 p unishment, 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) ; s ee 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 describe s 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 res olve 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 hear ing 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 bea rs 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 rec ords 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 condition s he now claims w ere 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 admin is trat ive 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 on

base visits, records show daily interaction with guards who gave Appellant his medicine

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

12 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 exhau sted the prisoner

- grievance system [in his detention facility] and that he has petitioned for relief under Article 138

. ’ ” Wise

, 64 M.J. at 471 ( o mission and alteration in original)

. Appellant has not done so. Even if Appellant’s clemency
submission might satisf y the requirement to file an Article 138 compl ai nt, 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 commend ation, 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 offic ials 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 cho se 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 post

confinement 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 req uesting 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 c onvening a uthority’s failure to articulate his reasons for denying Appellant’s deferment request amounted to an abuse of discretion.United States v. Binegar , No. ACM S32625 (f rev)

13 We agree the convening authority erred by failing to include a reason for denying Appellant’s request to defer his reduction in grade . However

, w e find no
relief is warranted

.
1. Additional Background

On 21 June 2019 , Appellant submitted a request for deferment of reduction in grade and waive r of automatic forfeitures. Appellant requested the deferment and waiver in order to provide financ ial support to his dependent daughter. On 1 August 2019, t he convening authority denied the deferment request, but granted the waiver request in pa rt by authorizing $300 .00 to be paid for the benefit of Appellant’s daughter. We noted in our previous opinio n t he original EoJ erroneously state d “ [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, o n 24 March 2021, the convening authority signed a third Decision on Action memorandum which states : “On 21 June 2019, the [Appellant] requested d ef e r ment 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 assignment s of error, we granted the
G overnment’s motion to attach four documents, one of which was a declaration from the convening authority, dated 10 March 202 2

. 10 In that declaration, t he convening authority explained his reasons for denying Appellant’s request to defer reduction in grade :
I denied the deferment request d ue 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 confinem ent, 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 cou rts 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 th e 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 de fer 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 fil e 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 t h e requirement articulated by the
CAAF in Sloan is inapplicable to cases referred after 1 January 2019. We find
that requirement continues to appl y to cases, like Appellant’s

, referred after

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

The conve n ing authority erred by failing to include a reason for denying Appellant’s request to defer his reduction in grade in his decision memo randum

. H owever 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 req uested 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
decre e

.
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 [dismi ssal of Specification 4 of Charge II] is with prejudice, you cannot be tried for it at a later point.” After acceptin g Appellant’s guilty plea, the military judge engage d 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 Yo ur 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.

M J: 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, t he assistant trial counsel lined through Specification 4 of Charge II and wrote that it was dismissed on 11 June 2 019. 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, t he 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 ag reement 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 c riminal 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 suscept ible 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).

O ur 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

T he military judge ’ s colloquy with Appellant i nforme d 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, th e charge sheet, the STR

, and the EoJ do not reflect that specification was dismissed with prejudice. After considering the entire record, we find the conveni ng autho rity 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 th is court “ dismiss Specification 4 of Charge II with prejudice

. ” The Government request s we modify the EoJ “to ensure the post

- trial pap er work reflects the benefit of Appellant ’s bargain,” or, in the alternative, that we “dismiss the affected specification with prejudice.” A fter consideration of the proposed remedies, w e do not
find m odification 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 dismiss ed th is 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. C ONCLUSION
Specification 4 of Charge I I is DISMISSED WITH PREJUDICE . Thefindings 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)

18 Accordingly, the findings and sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court