UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM 39352 (reh)

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UNITED STATES

Appellee

v.

Milford C. SCOTT

Captain (O-3), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 18 November 2021

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Military Judge: Andrew R. Norton.

Approved sentence: Dismissal, confinement for 2 months, and a reprimand. Sentence adjudged on 28 January 2020 by GCM convened at Davis-Monthan Air Force Base, Arizona.

For Appellant: Major David A. Schiavone, USAF; Captain Ryan S. Crnkovich, USAF.

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

B. Shust, USAF; Mary Ellen Payne, Esquire.

Before JOHNSON, POSCH, and MEGINLEY, Appellate Military 

Judges.

Senior Judge POSCH delivered the opinion of the court, in which Chief 

Judge JOHNSON and Judge MEGINLEY joined. Judge MEGINLEY

filed a separate concurring opinion.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

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United States v. Scott, No. ACM 39352 (reh)

2

POSCH, Senior Judge:

Appellant’s case is before this court a second time. At Appellant’s trial in 

June 2017, a general court-martial composed of officer members convicted Appellant, contrary to his pleas, of three specifications of assault consummated 

by a battery and one specification of fraternization in violation of Articles 128 

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 928, 934, respectively.

1 The adjudged and approved sentence consisted of a dismissal and 

confinement for eight months.

Upon initial review, this court found the assault consummated by a battery 

convictions both legally and factually sufficient. United States v. Scott, No. 

ACM 39352, 2019 CCA LEXIS 232, at *5–11 (A.F. Ct. Crim. App. 10 May 2019)

(unpub. op.). At trial, those offenses were enumerated as Specifications 1, 2, 

and 3 of Charge I.2 At the same time, this court set aside the fraternization

conviction and the sentence, and dismissed the fraternization charge and specification with prejudice. Id. at *2, *24. In the exercise of this court’s authority 

under Article 66(d), UCMJ, 10 U.S.C. § 866(d), we authorized a rehearing on 

sentence. Scott, unpub. op. at *24–25 (citing Article 66(e), UCMJ, 10 U.S.C. 

§ 866(e)). At the rehearing that was held in January 2020, a military judge 

sentenced Appellant to a dismissal, confinement for two months, and a reprimand. The convening authority approved the sentence that was adjudged at 

the rehearing.

3

After the rehearing and in this appeal, Appellant raises ten issues, seven

of which are assignments of error raised through appellate counsel: (1) whether 

Appellant is entitled to new post-trial processing because the staff judge advocate’s recommendation (SJAR) failed to advise that the convening authority 

was empowered to set aside Appellant’s reprimand; (2) whether Appellant was 

prejudiced during post-trial processing when the convening authority was provided a personal data sheet containing evidence of nonjudicial punishment

 

1 Except where indicated, all references in this opinion to the UCMJ, Rules for CourtsMartial, and Military Rules of Evidence are to the Manual for Courts-Martial, United 

States (2016 ed.).

2 For each of the three specifications of assault consummated by a battery, Appellant 

was found not guilty of the excepted word “fist” (as in “strike in the face with his fist”), 

but guilty of the substituted word “hand.” United States v. Scott, No. ACM 39352, 2019 

CCA LEXIS 232, at *1 n.1 (A.F. Ct. Crim. App. 10 May 2019) (unpub. op.).

3 The military judge ordered one day of pretrial confinement credit against the term of 

confinement. At action, the convening authority directed Appellant to “be credited with 

confinement served under the sentence adjudged at the former trial against the current sentence to confinement.”
United States v. Scott, No. ACM 39352 (reh)

3

(NJP) that was ruled inadmissible, and Appellant was not notified of the convening authority’s intent to consider adverse matters not admitted at trial as 

required by Air Force Instruction (AFI) 51-201, Administration of Military Justice, ¶ 13.21 (18 Jan. 2018); (3) in the event that this court does not remand for 

new post-trial processing, whether the reprimand should be set aside consistent with Articles 63 and 66, UCMJ, 10 U.S.C. §§ 863, 866; (4) whether Appellant is entitled to relief under Article 66, UCMJ, 10 U.S.C. § 866, because

he was an undisputed victim of a crime committed by an active duty security 

forces confinement guard; (5) whether, and in addition to other reasons raised 

on appeal, Appellant should be granted Article 66, UCMJ, relief because he 

has served eight months of confinement pursuant to his initially-approved sentence, but was subsequently resentenced to just two months of confinement at 

the rehearing and no clemency was granted; (6) whether trial counsel improperly commented on Appellant’s rights under the Constitution4 and statute by 

arguing Appellant lacked rehabilitative potential because he would not take 

accountability for his actions; and (7) whether the military judge abused his 

discretion in allowing the Government’s lone sentencing witness to testify remotely, over Appellant’s objection, because the witness decided to attend a nonmission-essential temporary duty on the date of the rehearing.

In addition, Appellant personally raises three issues pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (8) whether the military judge 

abused his discretion in allowing Colonel PA to testify as to Appellant’s rehabilitative potential in light of Colonel PA lacking any substantial interactions 

with Appellant in six years; (9) whether Appellant is entitled to sentence relief 

pursuant to Article 66, UCMJ, because he was subject to an arbitrary and capricious debarment while on appellate leave; and (10) whether Appellant was 

denied effective assistance of counsel when, upon learning for the first time in 

the midst of his rehearing that he could have sought to litigate the denial of 

his request for a military counsel of his own selection pursuant to Article 

38(b)(3)(B), UCMJ, 10 U.S.C. § 838(b)(3)(B), he was forced to make a hasty 

decision regarding his choice of counsel on the spot. We have carefully considered issues (8) and (10) and determine they are without merit and warrant no 

discussion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 

1987).

After considering Appellant’s assignments of error and issues he personally 

 

4 Appellant’s assignment of error brief explains, “Trial counsel’s improper commentary 

[in sentencing argument] implicated Appellant’s constitutional rights because it served 

as an attack upon his previous plea of not guilty and right to remain silent. . . .”
United States v. Scott, No. ACM 39352 (reh)

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raises on appeal, we affirm the findings and sentence as set forth in our decree.

5

I. BACKGROUND

This court described the facts of the case in our initial decision that found

Appellant’s three assault consummated by a battery convictions legally and 

factually sufficient. Scott, unpub. op. at *2–11. It will suffice to state here that 

the findings of guilty are founded upon an incident in March 2016 after Appellant initiated a verbal confrontation in a parking lot outside a nightclub in 

Tucson, Arizona. At the time, Appellant was riding in the front passenger seat 

of a friend’s car. He began by rolling down a car window and shouting obscenities at three women who stood in the way. When the women were unmoved by 

Appellant’s demands, Appellant approached the women, and the driver followed Appellant to try to convince him to return to the car.

The incident rapidly escalated to a heated exchange of words and physical 

contact. Appellant struck one woman in the face with his hand, knocking her 

down. After Appellant hit the same woman a second time, he struck the other 

women in quick succession. As bystanders approached, Appellant and his 

friend got back into the car and drove off. The first woman Appellant struck 

left before police arrived, but the other two provided statements to the police 

and had their injuries photographed. Each of the women’s faces had a reddened 

mark where she was struck. Almost one month later at the same nightclub, 

one of the women recognized Appellant as her assailant. After police were contacted and responded, Appellant was arrested when he walked out of the club.

At the rehearing, the Prosecution admitted the prior testimony of the three 

victims and other evidence from Appellant’s trial.

II. DISCUSSION

A. Challenges to the SJAR

The proper completion of post-trial processing is a question of law the court 

reviews de novo. United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000) (citing 

United States v. Powell, 49 M.J. 460, 462 (C.A.A.F. 1998)). Failure to comment 

in a timely manner on matters in the SJAR or matters attached to the SJAR 

“waives in the absence of plain error, or forfeits, any later claim of error.” 

 

5 Appellant requested speedy appellate review in his timely opposition to the Government’s 18 March 2021 motion for enlargement of time. This opinion is being issued 

before the 18-month standard for a presumptively unreasonable delay in appellate review set in United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). We find no prejudice to Appellant and relief is not warranted for the time it took to complete review.
United States v. Scott, No. ACM 39352 (reh)

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United States v. Zegarrundo, 77 M.J. 612, 614 (A.F. Ct. Crim. App. 2018) (citing 

Rule for Courts-Martial (R.C.M.) 1106(f)(6); United States v. Scalo, 60 M.J. 

435, 436 (C.A.A.F. 2005)).

When analyzing for plain error, an appellate court will assess whether “(1) 

there was an error; (2) it was plain or obvious; and (3) the error materially 

prejudiced a substantial right.” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 

65). “To meet this burden in the context of a post-trial recommendation error 

. . . an appellant must make ‘some colorable showing of possible prejudice.’” Id.

at 436–37 (quoting Kho, 54 M.J. at 65). “The threshold is low, but there must 

be some colorable showing of possible prejudice. . . . in terms of how the [error] 

potentially affected an appellant’s opportunity for clemency.” Id. at 437 (citation omitted).

1. The Reprimand 

Appellant claims error in that the SJAR failed to advise the convening authority that he was empowered to set aside Appellant’s reprimand adjudged at 

the rehearing. Appellant asks this court to set aside the approved sentence and 

remand for new post-trial processing with a corrected SJAR.

a. Additional Background

During post-trial processing, the SJAR correctly advised the convening authority of his power to disapprove, commute or suspend, in whole or in part, 

the confinement component of the adjudged sentence. The SJAR did not similarly advise the convening authority that he could disapprove the reprimand. 

Appellant did not address this apparent discrepancy in clemency. At the same 

time, Appellant did not seek relief that the convening authority had the power 

to grant under Article 60, UCMJ, 10 U.S.C. § 860.

6 Instead, trial defense counsel asked the convening authority to urge this court to both disapprove the 

dismissal under Article 66(c), UCMJ, 10 U.S.C. § 866(c), and to recommend 

that the Secretary of the Air Force (SECAF) substitute an administrative discharge in accordance with Article 74(b), UCMJ, 10 U.S.C. § 874(b). Recognizing 

the convening authority’s limited clemency power under the law, trial defense 

counsel nonetheless looked to the convening authority to “fully account for each 

of the six months that [Appellant] spent in confinement for a crime he did not 

commit.” He urged that “[i]n light of the full context of the situation, a dismissal is an unnecessarily severe punishment.”

 

6 The convening authority had the power to disapprove, commute, or suspend, in whole 

or in part, Appellant’s adjudged confinement and reprimand, but not the dismissal. 

See Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A); see also R.C.M. 1107(d)(1).
United States v. Scott, No. ACM 39352 (reh)

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b. Analysis

Because Appellant did not object to the contents of the SJAR upon receipt 

of it, we review for plain error. The SJAR must include a “concise recommendation.” R.C.M. 1106(d)(3). The Discussion to the rule explains that recommendation “may include a summary of clemency actions” that the convening authority has the power to take. Id., Discussion (emphasis added). Thus, it is not 

plain and obvious error for the SJAR to exclude advice on the convening authority’s power to disapprove Appellant’s adjudged reprimand. At the same 

time, and under the particular facts of this case, we find that Appellant has 

failed to make a colorable showing of possible prejudice even if there was error.7 Appellant neither sought clemency for the reprimand nor other relief that 

the convening authority had the power to grant under the UCMJ. Thus, we 

find the complained-of omission in the SJAR was not shown to be plain error.

See Scalo, 60 M.J. at 436.

2. Incorrect Personal Data Sheet Attached to the SJAR

Appellant also alleges error because the Personal Data Sheet (PDS) that 

was attached to the SJAR included adverse personnel information. This information was ruled on by the military judge and excluded from the PDS that the 

Prosecution admitted in its sentencing case. Appellant asks this court to set 

aside the approved sentence and remand for new post-trial processing with a 

corrected SJAR.

a. Additional Background

Appellant had undergone an NJP proceeding under Article 15, UCMJ, 10 

U.S.C. § 815, as a cadet at the United States Air Force Academy Preparatory 

School in 2006. After that proceeding concluded, the record of NJP became part 

of Appellant’s personnel record. During presentencing proceedings at the rehearing, the Prosecution offered evidence of Appellant’s service from his personnel records. Included was a PDS that summarized his service and identified 

“1” record of NJP reflecting the 2006 NJP proceedings. Appellant objected to 

the PDS because the NJP exceeded the five-year limit prescribed by AFI 51-

 

7 This court attached to the appellate record a declaration by the convening authority 

that refutes Appellant’s claim that the convening authority’s decision may have 

changed had the SJAR advised him in the manner in which Appellant claims he should 

have been advised. We gave no weight to this declaration in reaching our decision.
United States v. Scott, No. ACM 39352 (reh)

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201, ¶ 12.26.2.

8 The military judge sustained the objection and the PDS admitted for sentencing identified “0” NJP actions.

Following the rehearing, the PDS that the staff judge advocate attached to 

the SJAR identified the “1” NJP action Appellant had objected to at the sentencing hearing and that the military judge had sustained. The PDS also 

showed Appellant had no prior service before 10 May 2010.9 At the same time, 

the PDS noted that Appellant had been recognized with the Air Force Longevity Service Award with two devices, indicating that Appellant had at least 12 

years’ honorable active or reserve military service with any branch of the 

United States Armed Forces.10

Before advising the convening authority, on 12 March 2020 the SJA served 

a copy of the SJAR on trial defense counsel, and a copy was served on Appellant 

as well. The memorandum to trial defense counsel encouraged Appellant’s 

counsel to review the SJAR for error before it was presented to the convening 

authority:

The recommendation has not been presented to the convening 

authority pending an opportunity for you to review it and reply 

should you desire. Pursuant to Rule for Courts-Martial (R.C.M.) 

1106(f) and AFI 51-201, paragraph A11.19[, (18 Jan. 2019)], you 

are invited to make comments, including corrections or rebuttal, 

to any matter in the recommendation you believe to be erroneous, inadequate or misleading, within 10 days of receipt of this 

copy. Failure to comment on any matter in the recommendation 

or matters attached to the recommendation in a timely manner 

shall waive later claim of error.

 

8 R.C.M. 1001(b)(2) limits “[p]ersonal data” and “personnel records” that trial counsel 

may introduce in sentencing to information as prescribed “[u]nder regulations of the 

Secretary concerned.” In the Air Force, records of NJP under Article 15, UCMJ, 10 

U.S.C. § 815, may be admitted if not over five years old on the date the charges were 

referred. AFI 51-201, ¶ 12.26.2.

9 The PDS showed, “Initial Date of Current Service: 10 May 2010.” It also showed, 

“Prior Service: None.”

10 The Air Force Longevity Service Award is authorized based on an aggregate of four 

years of honorable active federal military service with any branch of the U.S. Armed 

Forces or Reserve components. An oak leaf cluster is worn as an authorized device for 

each additional four years of creditable service. Air Force Manual 36-2806, Awards 

and Memorialization Program, ¶¶ 3.37.1.3.2, A14.27 (10 Jun. 2019).
United States v. Scott, No. ACM 39352 (reh)

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The memorandum to Appellant similarly encouraged Appellant to review 

the SJAR and to make comments, including corrections or rebuttal, to any matter in the recommendation Appellant believed to be erroneous, inadequate or 

misleading.

Trial defense counsel and Appellant separately receipted for the SJAR on 

18 March 2020. No written matters were submitted objecting to the “1” NJP

that was identified on the post-sentencing PDS.

b. Law and Analysis

Appellant claims the Government erred by attaching the erroneous PDS to 

the SJAR instead of the PDS that was admitted at trial. On appeal, the Government concedes the PDS attached to the SJAR did not comply with paragraph A11.15 of the AFI because it should have been the same as the one admitted at the rehearing.

11 Appellant also claims error in that the Government 

failed to comply with the provisions of paragraph 13.21 of AFI 51-201 (18 Jan. 

2019). That paragraph details procedures for the Government to follow “[i]f the 

convening authority wishes to consider any matters adverse to the accused 

that were not admitted at trial.” Among those procedures, the SJA is required 

to notify the accused, in writing, of such matters, that the accused has a right 

to rebut the matters, and that the convening authority may consider them.

We agree with Appellant that the Government did not comply with paragraph 13.21 of the AFI. Nonetheless, we find such noncompliance does not entitle Appellant to relief under the circumstances here. Because Appellant did 

not object to the SJAR, we review for plain error. Assuming error that was 

plain or obvious for purposes of our analysis, Appellant has not made a colorable showing of possible prejudice.

As noted earlier, trial defense counsel’s submission to the convening authority urged this court to disapprove the dismissal, and to recommend that 

the SECAF substitute an administrative discharge in lieu of the adjudged dismissal. It bears repeating that the relief Appellant sought is not among the 

clemency options available to the convening authority under the UCMJ. See

Article 60(c)(4)(A), UCMJ, 10 U.S.C. § 860(c)(4)(A); see also R.C.M. 1107(d)(1). 

Similarly challenging to Appellant’s burden to establish prejudice, Appellant 

has not shown that the relief he wanted from the SECAF was likely without a 

thorough examination of his personnel records, including the record of NJP 

 

11 AFI 51-201, ¶ A11.15 (18 Jan. 2019) (“The SJA or designee ensures copies of the 

Report of Result of Trial memorandum and the accused’s personal data sheet admitted 

at trial, or at a post-trial hearing (whichever is current), are attached to the SJAR.”). 
United States v. Scott, No. ACM 39352 (reh)

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referenced in the PDS. Given the limited options available to the convening 

authority, Appellant has not made a colorable showing that if the PDS that 

was attached to the SJAR was the same as the PDS admitted at the rehearing, 

the convening authority might have taken some action favorable to Appellant

that was within his statutory power to grant as clemency.

12

Accordingly, although the SJAR included an attached PDS that referenced 

a prior record of NJP, Appellant has not made a colorable showing of possible 

prejudice warranting remand for new post-trial processing with a corrected 

SJAR that complies with the AFI.

B. Article 66(c), UCMJ, Review of the Sentence

In three assignments of error, and in an issue raised pursuant to 

Grostefon,

13 Appellant urges this court to reduce his sentence. Appellant calls 

upon the court to exercise its statutory responsibility to affirm “the sentence 

or such part or amount of the sentence, as” this court “finds correct in law and 

fact and determines, on the basis of the entire record, should be approved.”

Article 66(c), UCMJ.

1. Law

“We review sentence appropriateness de novo.” United States v. Datavs, 70 

M.J. 595, 604 (A.F. Ct. Crim. App. 2011) (citing United States v. Baier, 60 M.J. 

382, 383–84 (C.A.A.F. 2005)), aff’d, 71 M.J. 420 (C.A.A.F. 2012). “We assess 

sentence appropriateness by considering the particular appellant, the nature 

and seriousness of the offense[s], the appellant’s record of service, and all matters contained in the record of trial.” United States v. Anderson, 67 M.J. 703, 

705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). While we have 

great discretion in determining whether a sentence is appropriate, we are not 

authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J. 

138, 146 (C.A.A.F. 2010).

2. Analysis

Appellant raises five issues on appeal with respect to this court’s Article 

66(c), UCMJ, responsibility to review sentence appropriateness. First, Appel-

 

12 This court attached to the appellate record a declaration by the convening authority 

stating that “[g]iven the severity of [Appellant’s] misconduct for which he was convicted, the information regarding prior nonjudicial punishment contained within the 

personal data sheet did not influence my clemency determination.” We gave no weight 

to this declaration in reaching our decision.

13 We address assignments of error (3), (4), and (5), in addition to issue (9) raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
United States v. Scott, No. ACM 39352 (reh)

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lant asks that we set aside the reprimand as excessive. Second, Appellant argues he is entitled to relief in the nature of setting aside the dismissal because, 

while confined, he was a victim of a financial crime committed by an active 

duty security forces guard. Third, Appellant asks us to set aside the dismissal 

because he served eight months of confinement under his original sentence, 

but was subsequently sentenced to two months of confinement at the rehearing. Fourth, Appellant asks us to set aside the dismissal because he was debarred from Davis-Monthan Air Force Base (AFB) following release from confinement. At the same time, Appellant asks that we consider the debarment 

“in conjunction with all other wrongs he has suffered that are identified in [ ]

his brief (e.g., excessive confinement without remedy, [and] the larceny committed by a confinement guard) in fashioning appropriate relief” from the sentence adjudged at the rehearing. Accordingly, we consider as a fifth issue 

whether Appellant’s sentence is inappropriately severe giving individualized 

consideration to Appellant, the nature and seriousness of his offenses, his record of service, and all other matters contained in the record of trial, to include 

all the matters Appellant raises on appeal.

We consider each issue in turn.

a. Reprimand Adjudged at the Rehearing

After the sentencing rehearing, the convening authority approved the adjudged reprimand, which he stated as follows in the action:

You are hereby reprimanded! As an officer in the United States 

Air Force, you are expected to maintain high standards of integrity, responsibility, and leadership. Your actions, which include 

assaulting three female civilians, are despicable. Your acts displayed a momentous departure from the Air Force Core Values. 

I am extremely disappointed with your inexcusable conduct, 

which has brought discredit and disgrace upon you, your unit, 

and the United States Air Force.

Appellant does not take issue with this language, but argues a reprimand

is too severe of a penalty given that he was not originally sentenced to a reprimand and had already served the eight-month term of confinement at the time 

of the rehearing. We find no merit to Appellant’s claims that we should exercise 

our Article 66(c), UCMJ, authority and find the reprimand is excessive on 

grounds that it is a more severe penalty than what he originally received.

14

 

14 At the same time, Appellant argues his sentence violates Article 63, UCMJ, 10 

U.S.C. § 863, because his original sentence did not include a reprimand. We disagree. 
United States v. Scott, No. ACM 39352 (reh)

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We also find the reprimand is not an inappropriately severe penalty, and it 

would be the unusual case in which we would so find. Reprimands are among 

the sentencing penalties that are “qualitatively different from other punishments.” United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003). Unlike traditional criminal punishment such as confinement, reprimands “affect military 

personnel administration,” id. at 106–07, and “have no direct monetary consequences.” Id. at 108. We decline to exercise our Article 66(c), UCMJ, authority 

to grant relief on the basis that the reprimand is an inappropriately severe 

penalty.

b. Theft of Appellant’s Money

Appellant unsuccessfully sought relief from the convening authority after

an active duty security forces guard stole $2,100.00 that belonged to Appellant 

when Appellant was confined. The Addendum to the SJAR confirms “[t]his report is true, the guard’s conduct was criminal, and administrative action was 

taken against the guard. The security forces member was subsequently discharged from the Air Force.” In a declaration attached to the appellate record, 

Appellant explains he had given permission to the guard to use Appellant’s 

debit card to purchase toiletries for Appellant. The guard subsequently used it 

to make cash withdrawals from Appellant’s bank account. In its answer to this 

assignment of error, the Government notes that Appellant does not claim he 

was permanently deprived of the money, and Appellant does not contest this 

point in his reply brief.

On appeal, and citing United States v. Kelly, Appellant urges this court to 

set aside the dismissal on grounds that he was a financial crime victim. 77 M.J. 

404, 406 (C.A.A.F. 2018) (describing Courts of Criminal Appeals “as having a 

‘carte blanche to do justice’” (quoting United States v. Claxton, 32 M.J. 159, 162 

(C.M.A. 1991))). Appellant explains the fact that the prison guard had a culpable state of mind weighs in favor of granting Article 66, UCMJ, relief. Additionally, Appellant describes his own anxiety and depression that was exacerbated by the guard’s conduct.

A Court of Criminal Appeals (CCA) is “empowered to grant sentence relief 

based on post-trial confinement conditions.” United States v. Guinn, 81 M.J. 

195, 200 (C.A.A.F. 2021). Our authority arises when we find “a legal deficiency 

 

Article 63, UCMJ, states that upon a sentencing rehearing “no sentence in excess of or 

more severe than the original sentence may be approved . . . .” See also R.C.M. 

810(d)(1). Objectively, Appellant’s dismissal, two months of confinement, and a reprimand is less severe than a sentence of a dismissal, eight months of confinement, and 

no reprimand. See United States v. Altier, 71 M.J. 427, 428–29 (C.A.A.F. 2012) (per 

curiam) (finding a sentence containing types of punishment that could be imposed under Article 15, UCMJ, is neither excessive nor more severe under Article 63, UCMJ).
United States v. Scott, No. ACM 39352 (reh)

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in the post-trial process.” United States v. Gay, 75 M.J. 264, 268 (C.A.A.F. 

2015). That is, the genesis for relief must be “sparked by a legal error.” Id. One 

such legal error is when an appellant demonstrates his treatment in confinement is unlawful, and, thus, no longer appropriate. Guinn, 81 M.J. at 200–01. 

Under these circumstances, a CCA “not only has the authority but also the duty

to ensure that the severity of an adjudged and approved sentence has not been 

unlawfully increased by prison officials.” Id. at 200.

Even if we were to agree with Appellant that there was a legal deficiency 

in the implementation of his punishment, we disagree that setting aside the 

dismissal or granting other relief is an appropriate remedy. To be sure, Appellant was a member of a vulnerable population of prison inmates and the victim 

of a confinement guard who took advantage of him. However, we determine

Appellant’s convictions warrant a sentence that includes the approved confinement, dismissal, and a reprimand even when we factor into our review of the 

record that Appellant was the victim of a financial crime perpetrated by a 

guard. We decline to exercise our sentence appropriateness authority by setting aside Appellant’s sentence in whole or in part.

c. Uncredited Confinement

At the rehearing held in January 2020, Appellant was sentenced to six 

months less confinement than was originally adjudged and approved by the 

convening authority in 2017. Characterizing these six months he was confined 

as an injustice because it was not applied against the dismissal, Appellant requests we set aside the dismissal using this court’s Article 66(c), UCMJ, authority. Appellant allows he “may not be entitled to have the excessive six 

months he spent in confinement credited against his dismissal as a matter of 

law.” Even so, he argues the six months he spent in confinement for a legally 

erroneous conviction—along with the other issues he raises on appeal—warrant relief. Appellant asks this court to base its authority to grant the requested relief on a CCA’s Article 66(c), UCMJ, responsibility “to affirm only so 

much of Appellant’s sentence that it deems to be correct in law and fact” and

that it determines “should be approved.”

The Government answers with the contention that this court may grant 

sentence appropriateness relief only if we find a legal deficiency in the findings 

and sentence as approved by the convening authority. For support, the Government cites Gay, 75 M.J. 264 (C.A.A.F. 2015), discussed supra, a case in 

which the United States Court of Appeals for the Armed Forces (CAAF) predicated a CCA’s exercise of its sentence appropriateness authority on finding “a 

legal deficiency in the post-trial process.” Id. at 269. In reply, Appellant characterizes the additional six months he was confined as both “excessive” and the 

product of legal error. Appellant explains the genesis for relief is this court

finding the fraternization conviction legally insufficient, which resulted in six 
United States v. Scott, No. ACM 39352 (reh)

13

fewer months of confinement adjudged at the rehearing. In asking us to apply 

our sentence appropriateness authority, Appellant urges us to determine if Appellant’s sentence is “appropriate as a matter of fact.”

As an initial matter, and citing Josey, Appellant observes his sentence may 

be correct in law because he is not legally entitled to have his previous sentence 

of served confinement applied against the dismissal. 58 M.J. at 108 (“R.C.M. 

305(k) provide[s] an appropriate measure for crediting various types of punishment for purposes of former jeopardy, including confinement, hard labor 

without confinement, restriction, forfeitures, and fines.”). On this point, we 

agree with Appellant. “[R]eprimands, reductions in rank, and punitive separations are so qualitatively different from other punishments that conversion [for 

confinement served as a result of the initial proceedings] is not required as a 

matter of law.” Id.; see also United States v. Rosendahl, 53 M.J. 344, 347–48 

(C.A.A.F. 2000).

However, we assume for purposes of this appeal only that the scope of this 

court’s “highly discretionary power,” United States v. Lacy, 50 M.J. 286, 287–

88 (C.A.A.F. 1999), might reach the six months Appellant was confined that 

was not credited against his dismissal, and thereby allow this court to set aside 

the dismissal. We make this assumption because the points of law addressed 

by the CAAF’s decisions in Josey and Rosendahl do not directly address a 

CCA’s Article 66(c), UCMJ, authority with respect to uncredited confinement 

after a conviction is found legally insufficient.

Nonetheless, we decline to set aside the dismissal or grant other relief here

even if Article 66(c), UCMJ, would empower us to do so. We find persuasive 

the CAAF’s reasoning in Josey that “[t]he issue of whether a member of the 

armed forces should or should not receive a punitive discharge reflects a highly 

individualized judgment as to the nature of the offense as well as the person’s 

past record and future potential . . . .” 58 M.J. at 108. In the exercise of this 

court’s Article 66(c) responsibility to review the approved sentence, our determination whether the dismissal is appropriate is made “in light of the character of the offender, the nature and seriousness of his offenses, and the entire 

record of trial.” Datavs, 70 M.J. at 604–05 (citing United States v. Snelling, 14 

M.J. 267, 268 (C.M.A. 1982)). Considering the entire record, including the six 

months of confinement that was not applied against another component of the 

sentence as a matter of law, we find the sentence approved after the rehearing

is warranted by the evidence and is not an inappropriately severe penalty.

d. Debarment from Davis-Monthan AFB

After the rehearing, Appellant unsuccessfully sought relief from the convening authority, complaining that “after being released from wrongful con-
United States v. Scott, No. ACM 39352 (reh)

14

finement, [he] faced an arbitrary and capricious 5-year debarment[15]from Davis-Monthan [AFB], which served no purpose other than to perpetuate an already illegal punishment.” Appellant requests that we exercise our authority 

to set aside the dismissal pursuant to Article 66(c), UCMJ, to redress that debarment.

A CCA has considerable discretion when carrying out its Article 66(c), 

UCMJ, responsibility to review the appropriateness of a sentence. However, 

that discretion is not unlimited. This court has jurisdiction to “act only with 

respect to the findings and sentence as approved by the convening authority.” 

Article 66(c), UCMJ, 10 U.S.C. § 866(c). We find the complained-of debarment 

is outside our authority to review, as explained next.

In determining the scope of this court’s statutory responsibility, we find 

Clinton v. Goldsmith, 526 U.S. 529, 533 (1999), instructive. In that case, the 

respondent sought relief under the All Writs Act16 after the Air Force notified 

the respondent of its intent to drop him from the rolls. Id. at 531. That notice

was founded on a statute that authorized such action for any officer who had 

served at least six months confinement under a court-martial sentence. Id. at 

532. After the CAAF enjoined the President and other Executive Branch officials from taking action, the Supreme Court reversed. Id. at 532–33. The Court 

reasoned that “action to drop respondent from the rolls was an executive action, [and was] not a ‘finding’ or ‘sentence.’” Id. at 535 (citing 10 U.S.C. 

§ 867(c)). Thus, that action was “outside of the CAAF’s express statutory jurisdiction” to review. Id. at 540. In reaching this result, the Court rejected the 

claim that the CAAF had “merely preserved” the petitioner’s court-martial sentence “by precluding additional punishment.” Id. at 536. Concluding the action 

was beyond the CAAF’s jurisdiction to review, the Court made no distinction 

between the CAAF’s “narrowly circumscribed,” though “independent[,] statutory jurisdiction” to “review the record,” id. at 535 (citing 10 U.S.C. 

§§ 867(a)(2), (3)), on the one hand, and a CCA’s “jurisdiction to ‘review courtmartial cases,’” id. (citing 10 U.S.C. § 866(a)), on the other.

In United States v. Buford, this court similarly observed that Article 66(c), 

UCMJ, does not extend a CCA’s reach to all matters “that may have some link 

to a court-martial sentence.” 77 M.J. 562, 565 (A.F. Ct. Crim. App. 2017). We 

further explained that Article 66(c), UCMJ, does not confer unlimited author-

 

15 See 32 C.F.R. § 809a.5 (2018) (“Under the authority of 50 U.S.C. [§] 797, installation 

commanders may deny access to the installation through the use of a barment order.”).

16 28 U.S.C. § 1651(a).
United States v. Scott, No. ACM 39352 (reh)

15

ity to “grant relief for an administrative matter unrelated to any legal deficiency and unconnected to the legality or appropriateness of a court-martial 

sentence.”

In the case under review, the debarment is analogous to the action of Air 

Force officials in Goldsmith who notified the respondent of their intent to drop 

him from the rolls. Both actions were founded in a statute and predicated on 

the results of a court-martial conviction. Appellant has not established the debarment was anything more than an administrative action or presented evidence that military officials directed the debarment in order to increase the 

severity of his sentence and thereby impose illegal post-trial punishment. We 

find Appellant’s debarment is beyond this court’s statutory jurisdiction to review.

e. Sentence Severity

After considering all the matters Appellant has raised on appeal, and recognizing the attendant consequences of a dismissal,17 we determine the sentence adjudged at the rehearing is appropriate. We reach this determination 

after giving individualized consideration to Appellant, the nature and seriousness of his offenses, his record of service, and all other matters contained in 

the record of trial. Understanding we have a statutory responsibility to affirm 

only so much of the sentence that is correct and should be approved, Article 

66(c), UCMJ, we affirm the sentence approved by the convening authority after 

the rehearing.

C. Appellant’s Rebuttal to his Officer Performance Report

On appeal, Appellant claims trial counsel improperly commented on Appellant’s rights by arguing that Appellant lacked rehabilitative potential because 

he would not take accountability for his actions. Appellant requests that we 

set aside the sentence. We find no error to correct on appeal considering that 

Appellant waived a claim of error in the admissibility of the evidence that trial 

counsel relied on in argument.

 

17 “A dismissal is a punitive discharge . . . [that will] affect[ ] the accused’s future with 

regard to legal rights, economic opportunities, and social acceptability and will deny 

the accused other advantages which are enjoyed by one whose discharge indicates that 

he has served honorably.” United States v. Boyd, 55 M.J. 217, 219 (C.A.A.F. 2001) 

(quoting military judge’s sentencing instructions on the impact of a dismissal).
United States v. Scott, No. ACM 39352 (reh)

16

1. Additional Background

Appellant’s duty performance and other matters that described and characterized his military service were documented in his officer performance reports (OPR). At the rehearing, the Prosecution offered Appellant’s OPRs from 

his personnel record as Prosecution Exhibit 21.18 Among the OPRs was a postconviction OPR from 2017 that was required to be referred because Appellant 

had been convicted at trial by court-martial.

19 Included in the exhibit was Appellant’s written rebuttal comments to the referral OPR,20 which trial counsel 

would later reference in the Prosecution’s sentencing argument. In that rebuttal, Appellant stated,

Even though I have been convicted of the charges I am innocent 

of all of them. I will be submitting my case through the Air Force 

Court of Criminal Appeals (AFCCA) in hopes of all my charges 

being dropped and I will be allowed to re-enter the military and 

complete my career.

At trial, the Defense raised no objection to Prosecution Exhibit 21. After 

trial counsel individually offered the exhibit and four others, the military judge 

identified all five exhibits as a group and asked trial defense counsel if he had 

“any objection.” Trial defense counsel objected to three exhibits, but not the 

OPRs. The military judge acknowledged the objections, and then asked the Defense, “And you do not have an objection to Prosecution Exhibit 21, which are 

the officer performance reports of [Appellant]?” Trial defense counsel replied, 

“Correct, sir.” Even so, and after the military judge “note[d] that there is no 

defense objection to Prosecution Exhibit 21,” the military judge asked counsel 

for both parties to assure him that no OPRs were missing from the exhibit. 

Trial defense counsel explained Appellant had received training reports but no

OPRs during the period when the military judge thought at least one more 

OPR may have been accomplished for Appellant. Apparently satisfied with this 

answer, the military judge asked one last time, “And again, Defense Counsel, 

 

18 See R.C.M. 1001(b)(2) (“Under regulations of the Secretary concerned, trial counsel 

may obtain and introduce from the personnel records of the accused evidence of . . . 

character of prior service. Such evidence includes copies of reports reflecting the past 

military efficiency, conduct, performance, and history of the accused and evidence of 

any disciplinary actions . . . .”).

19 See AFI 36-2406, Officer and Enlisted Evaluation Systems, ¶ 1.10.3.1 (8 Nov. 2016) 

(“conviction by courts-martial” must result in a referral OPR).

20 Rebuttal comments are attached to the referral OPR and become a matter of record. 

AFI 36-2406, ¶¶ 1.4.3, 1.4.4, 1.10.5.2 (8 Nov. 2016).
United States v. Scott, No. ACM 39352 (reh)

17

any objection to Prosecution Exhibit 21 for identification, which are the officer 

performance reports?” Trial defense counsel answered, “No, Your Honor.”

During sentencing argument, trial counsel related Appellant’s rehabilitative potential to the rebuttal comments he provided to the referral OPR. Trial 

counsel began by recounting the testimony that was given by one of Appellant’s 

former squadron commanders who described Appellant’s rehabilitative potential as “mediocre at best.” Trial counsel then addressed Appellant’s rebuttal 

comments, arguing to the military judge,

And, sir, you also received [Appellant]’s officer performance reports. And in those performance reports, his last one that he received after being convicted at the general court-martial, he provided a response. And in that response he said he was innocent 

of everything. So let’s consider what the first step in rehabilitative potential is, and that’s taking accountability for your actions.

The Defense did not object to trial counsel’s argument. When trial defense 

counsel delivered Appellant’s sentencing argument, he expressed doubt that 

Appellant’s OPR “should be used against him . . . [b]ecause the fact is that he 

was wrongfully convicted, and that’s why we are here.”

2. Law

Ordinarily, a military judge’s admission of evidence is reviewed for an 

abuse of discretion. United States v. Barker, 77 M.J. 377, 383 (C.A.A.F. 2018)

(citation omitted). However, claims of error with respect to the admission of 

evidence are preserved only if a party timely objects to the evidence and states 

a specific ground for the objection. Mil. R. Evid. 103(a)(1). When an appellant 

fails to make a timely objection to the admission of evidence at trial, that error 

is forfeited in the absence of plain error. United States v. Knapp, 73 M.J. 33, 

36 (C.A.A.F. 2014) (citing United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 

2007)) (additional citations omitted). In contrast, under the ordinary rules of 

waiver, when an appellant affirmatively states he has no objection to the admission of evidence, the issue is waived and his right to complain about its 

admission on appeal is waived. United States v. Ahern, 76 M.J. 194, 198 

(C.A.A.F. 2017) (citing United States v. Campos, 67 M.J. 330, 332–33 (C.A.A.F. 

2009)) (additional citation omitted).

In accordance with Article 66(c), UCMJ, a CCA has the unique statutory 

responsibility to affirm only such findings of guilty and so much of the sentence 

that is correct and “should be approved.” Thus, this court retains the authority 

to address errors raised for the first time on appeal despite waiver of those 

errors at trial that would preclude further review on appeal. See, e.g., United 

States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018).
United States v. Scott, No. ACM 39352 (reh)

18

Whether argument is improper is a question of law that this court reviews 

de novo. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018) (citation 

omitted). When trial defense counsel fails to object, an appellant forfeits the 

objection on appeal, and we review for plain error. R.C.M. 1001(g); United 

States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007). Appellant must show (1) 

error; (2) that was plain or obvious; and (3) the error materially prejudiced a 

substantial right. Erickson, 65 M.J. at 223 (citations omitted).

3. Analysis

As an initial matter, Appellant waived any error with respect to the admission of his rebuttal comments to the referral OPR that was admitted as Prosecution Exhibit 21. Appellant was aware of this evidence in advance of trial, as 

the rebuttal comments bear his signature. When offered into evidence during 

sentencing, trial defense counsel unequivocally stated he had no objection.

Not only did trial defense counsel acquiesce to the admission of Appellant’s 

written rebuttal comments that were in response to his OPR, there was no 

objection to trial counsel’s sentencing argument that referenced those comments. There is no error, much less clear and obvious error, for trial counsel to 

argue evidence that is admitted without objection. Once Appellant’s OPRs 

were admitted in evidence, trial counsel was permitted to argue the evidence 

adduced, as well as any “fair inferences as may be drawn therefrom.” United 

States v. White, 36 M.J. 306, 308 (C.M.A. 1993) (citation omitted). This included

arguments drawn from Appellant’s rebuttal comments in which he advanced 

his unreserved innocence of all charges and specifications.

We have considered whether we should grant relief under our Article 66(c), 

UCMJ, authority in spite of this waiver, and decline to do so. We perceive no 

unfair prejudice to Appellant by the admission of the rebuttal comments he 

made to the referral OPR. More to the point, we find no reason to pierce waiver 

on grounds that trial counsel relied on evidence that was before the factfinder

in arguing for the sentence that should be adjudged.

D. Remote Live Testimony of Colonel PA

Before the rehearing and on appeal, Appellant objected to the military 

judge allowing the Prosecution’s sole sentencing witness to testify by answering questions posed to him though live remote video. Appellant asks this court 

to set aside his sentence. We find the military judge did not err.

1. Additional Background

Well in advance of the rehearing, the Prosecution notified the Defense that 

it planned to call Colonel PA to give his opinion of Appellant’s rehabilitative 

potential. At the time of the rehearing, Colonel PA was assigned to Davis-Monthan AFB where the rehearing was held. However, during the time that the 
United States v. Scott, No. ACM 39352 (reh)

19

rehearing was scheduled to convene, Colonel PA had scheduled permissive 

temporary duty (PTDY) to attend an executive Transition Assistance Program

(TAP) at an installation in San Antonio, Texas, in preparation for retirement.

In lieu of in-person testimony, the Prosecution notified the Defense that it 

would present Colonel PA’s live testimony by remote means.

The Defense objected, explaining that the Prosecution sought remote testimony “not for any sort of military necessity, but purely due to the convenience 

of both the witness and the [G]overnment.” The Defense argued Colonel PA’s 

PTDY was not a military necessity because he had “chosen to drive” to the

elective program, which interfered with his availability to testify in person.

Trial defense counsel articulated that “[t]he [G]overnment has known about 

the date of this [rehearing] since approximately October 2019” and Colonel 

PA’s decision to drive to a TAP course at a different base did not amount to 

“extenuating circumstances that justify anything other than in[-]person testimony for him.”

2. Ruling

Ruling from the bench, the military judge applied the criteria for production of a sentencing witness in R.C.M. 1001(e). Finding Colonel PA’s testimony, 

as proffered, was “certainly significant,” the military judge found this factor 

did not “weigh[ ] heavily in favor of personal appearance.” In this regard, the 

military judge concluded the testimony “is not anticipated to resolve any alleged inaccuracy or dispute as to a material fact.” Next, the military judge observed,

the weight or credibility of a witness, in this case, Colonel [PA], 

will likely be of significance, but the court is not convinced that 

testimony by video teleconference is such that it would render 

the court unable to appropriately weigh the credibility of testimony. . . . or give the testimony it’s [sic] appropriate weight.

The military judge found the timing of the request for production of the 

witness weighed in favor of the Defense, as there was an objection timely made 

before Colonel PA traveled. The military judge also found the cost of producing 

Colonel PA was minimal if he were present at the base, but having the witness 

returned or having the witness prevented from attending the PTDY would be 

significant. The military judge weighed these considerations and overruled the 

objection, concluding that Colonel PA’s testimony delivered though live remote 

video did not violate Appellant’s due process rights.

After Colonel PA testified, the military judge reaffirmed his ruling,

finding that the balancing test found in [R.C.M.] 1001(e), as well 

as that articulated in United States v. McDonald, [55 M.J. 173 
United States v. Scott, No. ACM 39352 (reh)

20

(C.A.A.F. 2001),] that the significance of the personal appearance of the witness to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, does not favor the live production of the witness. 

And furthermore, the VTC [video teleconferencing] testimony of 

the witness satisfies the reliability standards required by due 

process.

3. Law

We review a military judge’s denial of a request to produce a presentencing 

witness for an abuse of discretion. United States v. Briscoe, 56 M.J. 903, 906 

(A.F. Ct. Crim. App. 2002) (citing United States v. Combs, 20 M.J. 441, 443 

(C.M.A. 1985); United States v. Tangpuz, 5 M.J. 426, 429 (C.M.A. 1978)). In 

Combs, the United States Court of Military Appeals listed the following nonexhaustive factors to be considered by the military judge:

[W]hether the testimony relates to disputed matter; whether the 

Government is willing to stipulate to the testimony as fact; 

whether there is other live testimony available to appellant on 

the same subject; whether the testimony is cumulative of other 

evidence; whether there are practical difficulties in producing 

the witness; whether the credibility of the witness is significant; 

whether the request is timely; and whether another form of presenting the evidence (i.e., former testimony or deposition) is 

available and sufficient.

20 M.J. at 442–43 (citing R.C.M. 1001(e)(2) in the Manual for Courts-Martial, 

United States (1969 ed.)).

Although the Sixth Amendment21 right of confrontation does not apply to 

sentencing proceedings in a non-capital court-martial, United States v. McDonald, 55 M.J. 173, 174 (C.A.A.F. 2001), fundamental due process under the Fifth 

Amendment22 “requires that the evidence introduced in sentencing meet minimum standards of reliability.” Id. at 177.

“During the presentence proceedings, there shall be much greater latitude 

than on the merits to receive information by means other than testimony presented through the personal appearance of witnesses.” R.C.M. 1001(e)(1).

 

21 U.S. CONST. amend. VI.

22 U.S. CONST. amend. V.
United States v. Scott, No. ACM 39352 (reh)

21

4. Analysis

The military judge acted within his discretion when he denied the defense 

request to produce Colonel PA. Central to this finding is the military judge’s 

balancing of factors to reach the conclusion that live remote video testimony 

met minimum standards of due process and reliability. We decline to disturb 

the military judge’s finding that the significance of Colonel PA’s personal appearance to the determination of an appropriate sentence, when balanced 

against the practical difficulties of producing him, did not favor a personal appearance.

III. CONCLUSION

The findings of guilty to Specifications 1, 2, and 3 of Charge I and Charge 

I, and the sentence adjudged at the rehearing and approved by the convening 

authority, are correct in law and fact, and no error materially prejudicial to the 

substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 

U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are AFFIRMED.

MEGINLEY, Judge (concurring):

I join the opinion of the court. However, I write separately to specifically 

address dismissal of an officer. The instruction in pre-sentencing at Appellant’s 

first court-martial that was given by the military judge to the members is that 

“a sentence to a dismissal of a commissioned officer is, in general, the equivalent of a dishonorable discharge of a noncommissioned officer or an enlisted 

Airman.” This appears to be a standard instruction given to members in an 

officer sentencing case.

Our superior court has acknowledged there is “practically no real difference

between calling a sentence providing for separation under conditions of dishonor a dismissal, or describing it as a dishonorable discharge.” United States 

v. Briscoe, 33 C.M.R. 42, 44 (C.M.A. 1963); see also United States v. Bell, 24 

C.M.R. 3, 4 (C.M.A. 1957). Yet, given these particular set of facts, and based 

on my review of the record, if Appellant was not a commissioned officer, that 

is, if he were an enlisted Airman, these probably would not have been “dishonorable discharge” worthy offenses. However, an officer’s conviction worthy of 

an adjudged “dismissal” should not be considered the equivalent of a dishonorable discharge, or even compared to a bad-conduct discharge; officer misconduct stands on its own. 

In United States v. Free, the United States Navy Board of Review stated,
United States v. Scott, No. ACM 39352 (reh)

22

It is not at all difficult for the reasonably prudent officer to discriminate between what circumstances justify a particular act 

and what render the act so curtailing of the dignity required by 

an officer’s obligations as to make it an offense against good order and discipline. . . . [B]ut the nature of an officer’s commission 

demonstrates that he has been selected from among the populace as a whole to hold a position of trust and honor and has been 

trained to exercise the nice discrimination required. It is likewise true that a degree of judgment is required of an officer 

which is not required of the enlisted member of the service or of 

a civilian. It follows that a different standard of conduct is required in law of an officer than is required of others. This, in 

effect, puts him in a different legal status than the enlisted man 

or the civilian.

14 C.M.R. 466, 471 (N.B.R. 1953). Further, in United States v. Means, the 

United States Court of Military Appeals stated, 

[T]he President has recognized the unique position of officers for 

purposes of military justice. . . . In short, the Armed Services 

comprise a hierarchical society, which is based on military rank. 

Within that society commissioned officers have for many purposes been set apart from other groups. Since officers have special privileges and hold special positions of honor, it is not unreasonable that they be held to a high standard of accountability. 

10 M.J. 162, 165–66 (C.M.A. 1981); see also United States v. Bailey, No. ACM 

37746, 2013 CCA LEXIS 241, at *5 (A.F. Ct. Crim. App. 19 Mar. 2013) (unpub. 

op.) (per curiam) (holding that “officers may be subjected to more stringent 

punishments for their violations of the UCMJ than might be appropriate for 

an enlisted member under the same circumstances” (citing United States v. 

Moultak, 24 M.J. 316, 318 (C.M.A. 1987))); United States v. Tedder, 18 M.J. 

777, 781 (N.M.C.M.R. 1984) (per curiam) (stating “commissioned officers enjoy 

a unique, ‘special position of trust and duty’” that allow them to be held to 

higher standards than others not similarly situated (quoting Means, 10 M.J. 

at 165)), aff’d, 24 M.J. 176 (C.M.A. 1987).

I am convinced that Appellant’s sentence is legally correct. However, based 

on the language cited in Free, Means, and Moultak, a dismissal should not be 

viewed in the same manner as a dishonorable discharge, and trial judges

should reconsider whether to charge members as such in their sentencing instructions. Appellant is an officer, and as such, the reality is that the cases 

cited indicate there is a lower threshold for tolerance for misconduct, and conversely, a much higher standard of accountability. Because of this, Appellant’s 
United States v. Scott, No. ACM 39352 (reh)

23

misconduct is viewed with more scrutiny. The caselaw cited may be dated, but 

the expectations for officers remain the same. Appellant was not a brand new 

officer, straight out of officer training school; he was a captain. He was a graduate of a military school (The Citadel), where I have little doubt he was taught 

about leadership, officership, and character. He was a much bigger human being than his victims; he stood 6’4’’ and was a football player at his university. 

Even though he may have been provoked or induced to react the way he did, 

the testimony clearly indicates that Appellant placed himself in a situation 

where he could have, and should have, walked away, and had several opportunities to withdraw from the situation. Instead, he assaulted three women, each 

in fairly rapid succession. Although a dismissal is a severe punishment in this 

case, prosecuted under the UCMJ, it is not inappropriate for the offenses committed. 

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court