This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellant

v.

Chase J. EASTERLY, Senior Airman

United States Air Force, Appellee

No. 19-0398

Crim. App. No. 39310

December 4, 2019, Argued—Decided February 4, 2020

Military Judge: Charles E. Wiedie Jr.

For Appellant: Major Anne M. Delmare (argued); Colonel 

Julie L. Pitvorec, Lieutenant Colonel Brian C. Mason, Major 

Michael T. Bunnell, and Mary Ellen Payne, Esq. (on brief).

For Appellee: Captain David A. Schiavone (argued); Major 

Mark J. Schwartz.

Judge RYAN delivered the opinion of the Court, in which 

Chief Judge STUCKY, and Judges OHLSON, SPARKS,

and MAGGS, joined. 

_______________

Judge RYAN delivered the opinion of the Court.

A general court-martial convicted Appellee, contrary to 

his pleas, of one specification of attempted premeditated 

murder in violation of Article 80, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 880 (2012). The members 

sentenced Appellee to a dishonorable discharge, confinement 

for seven years, forfeiture of all pay and allowances, and 

reduction to E-1. The convening authority approved the 

adjudged sentence. 

As relevant here, the United States Air Force Court of 

Criminal Appeals (CCA) specified the issue “whether the military judge committed plain error by failing to instruct sua 

sponte on the impact of a punitive discharge on permanent 

retirement for physical disability.” United States v. Easterly, 

2019 CCA LEXIS 175, at *2, 2019 WL 1616526, at *1 (A.F. 

Ct. Crim. App. Apr. 12, 2019) (unpublished). A majority found 

the military judge plainly erred because a Formal Physical 
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2

Evaluation Board (FPEB) report recommending Appellee’s 

disability retirement set an evidentiary predicate for the instruction; the FPEB report, Appellee’s potential retirement,

and his disability rating were discussed at several points 

throughout the trial; and the failure to instruct affected Appellee’s substantial right “to have the court-martial panel 

members consider all of the information they were allowed to 

consider before they adjudged his sentence.” 2019 CCA 

LEXIS 175, at *48–55, 2019 WL 1616526, at *17–19. The CCA 

affirmed the findings but set aside the sentence and authorized a rehearing on the sentence. 2019 CCA LEXIS 175, at 

*57, 2019 WL 1616526, at *19.

The Judge Advocate General of the Air Force then certified the following issue pursuant to Article 67(a)(2), UCMJ, 

10 U.S.C. § 867(a)(2) (2012):

Whether the Air Force Court of Criminal Appeals 

erred in finding that the military judge committed 

plain and prejudicial error by failing to instruct the 

panel sua sponte regarding the impact of a punitive 

discharge on Appellee’s potential permanent disability retirement, where Appellee did not request such 

an instruction.

We hold that there was no error here, let alone plain error. 

The test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is simple: 

There must be (1) an evidentiary predicate and (2) a request 

for the instruction. United States v. Boyd, 55 M.J. 217, 221 

(C.A.A.F. 2001). Here, we need not decide whether the facts 

constitute an evidentiary predicate as no request was made, 

and the military judge thus had no duty to give the instruction. We thus answer the certified question in the affirmative 

and set aside the CCA’s decision as to the sentence.

I. BACKGROUND

Appellee met a woman through an online dating service. 

Shortly after a third date that ended badly, the details of 

which are discussed at Easterly, 2019 CCA LEXIS 175, at *4–

7, 2019 WL 1616526, at *2, Appellee went to her apartment 

with every intent to “commit the perfect murder.” He brought 

a “kill bag” containing a knife, bleach, a lighter, lighter fluid, 

gloves, trash bags, extra clothes, and a painter’s mask. Appellee later described in great detail how he would have used the 
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3

items in the bag to harm his victim and cover up the evidence.

He outlined the actions he took to avoid detection, explaining 

that “if [he] did actually go through with the act . . . that actually hurt [the woman], [he] wouldn’t want the cops to know 

who [he] was.” 

When Appellee arrived at the woman’s door, he knocked 

once, but the woman did not respond. After waiting several 

minutes, he knocked again, and again no one answered. Fortunately for the intended victim, he then left because he assumed she was not home. 

Afterwards, Appellee visited the psychologist treating him 

for schizophrenia and disclosed what happened. Two events 

flowed from this disclosure.

First, an FPEB recommended, based on his diagnosis of 

schizophrenia, “Permanent Retirement with a disability rating of 100% [in accordance with] Department of Defense guidance for applying the Veterans Administration Schedule for 

Rating Disabilities.” This potential permanent disability retirement had not yet been approved by the Secretary of the 

Air Force at the time of trial. See 10 U.S.C. § 1201 (2012) (Service Secretary makes final retirement determination).

Second, an Air Force Office of Special Investigations 

(AFOSI) investigation ensued, culminating in Appellee’s 

statement to AFOSI and the referral, inter alia, of a charge 

and specification of attempted premeditated murder to a general-court martial. 

The Government introduced the FPEB recommendation 

at trial, and both parties referred to Appellee’s disability rating multiple times throughout their findings arguments.1

The Government argued at sentencing for a dishonorable 

discharge, focusing on the seriousness of the offense and emphasizing that the victim was a civilian, that Appellee went 

to her home, that Appellee gained the victim’s trust partially 

 

1 During findings, the Government used the FPEB recommendation to establish motive for communicating a threat to kill any 

doctor who changed his diagnosis, an Article 134, UCMJ, 10 U.S.C. 

§ 934, charge of which Appellee was acquitted. The defense referenced Appellee’s disability rating to, inter alia, demonstrate lack of 

mental responsibility. 
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through his military connection, and that while “[t]here was 

no bloodshed, no crime scene, . . . he still took away that sense 

of trust, that sense of safety, her energy.”

Defense counsel argued the sentence should account for 

Appellee’s need for medication and treatment, and that a dishonorable discharge “strips him of all his benefits. It strips 

him of all his Veteran[s] Affair[s] benefits.” Appellee’s written 

unsworn statement also noted his need for continued medication through his Veterans Affairs benefits and that a punitive 

discharge would remove those benefits. 

The military judge instructed the members that a punitive 

discharge “deprives one of substantially all benefits 

administered by the Department of Veterans Affairs and the 

Air Force.” He later instructed that “[t]he consequences that 

flow from a federal conviction, other than the punishment, if 

any you impose, are collateral consequences of the conviction.

The collateral consequences stemming from a federal 

conviction should not be part of your deliberations in arriving 

at a sentence.”

2

Neither party requested an instruction on the impact of a 

punitive discharge on Appellee’s potential permanent disability retirement. The military judge did not ask the parties if 

they wanted such an instruction and did not give one sua 

sponte. No member asked about Appellee’s retirement.

II. DISCUSSION

“Failure to object to . . . omission of an instruction [on sentencing] . . . constitutes waiver of the objection in the absence 

of plain error.”

3 Rule for Courts-Martial (R.C.M.) 1005(f) 

 

2 This Court has long recognized that the impact of a punitive 

discharge on retirement benefits where a member is “perilously 

close to retirement,” United States v. Greaves, 46 M.J. 133, 139 

(C.A.A.F. 1997), is not collateral, but rather “a direct and proximate 

consequence of the sentence.” United States v. Griffin, 25 M.J. 423, 

424 (C.M.A. 1988).

3 Despite the rule using the word “waiver,” this Court has interpreted the near identical language in R.C.M. 920(f) (findings instructions) that simultaneously discusses waiver and plain error as 

referring to forfeiture, not waiver. See, e.g., United States v. Davis, 

76 M.J. 224, 227 n.1 (C.A.A.F. 2017); United States v. Ahern, 76 
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(2016). Plain error requires showing: (1) error; (2) the error 

was clear or obvious; (3) the error prejudiced the accused’s 

substantial rights. United States v. Grier, 53 M.J. 30, 34 

(C.A.A.F. 2000). Where, as here, the military judge committed 

no error, the plain error analysis ends.

In Boyd, 55 M.J. at 221, this Court stated plainly that “we 

will require military judges in all cases tried after the date of 

this opinion to instruct on the impact of a punitive discharge 

on retirement benefits, if [(1)] there is an evidentiary predicate for the instruction and [(2)] a party requests it.”

4 In the 

instant case, Appellee failed to satisfy this test because he 

failed to request the instruction,

5 and the military judge had 

no sua sponte duty to give the instruction without a request. 

Sua sponte means “[w]ithout prompting or suggestion.” 

Black’s Law Dictionary (11th ed. 2019).

However, as evidenced by the CCA’s decision in this case, 

Boyd’s later discussion of failure to request an instruction on 

the impact of a punitive discharge on temporary disability retirement has produced some confusion. In Boyd, this Court 

announced the clear two-part test for a military judge’s requirement to give a retirement instruction as a prospective 

rule. 55 M.J. at 221. But with respect to analyzing Boyd’s failure to request an instruction on the impact of a punitive discharge on temporary disability retirement in his case, we 

stated we would “grant relief only if the military judge’s failure to instruct sua sponte was plain error,” and then concluded that there was no factual predicate for the instruction, 

and thus no error. Id. at 222.

At odds with the clear statement of the prospective rule,

this appears to have been an unartfully crafted attempt to 

give Boyd himself the benefit of the rule with respect to a form 

 

M.J. 194, 197 (C.A.A.F. 2017). We see no reason to interpret the 

provision for sentencing instructions any differently. We review forfeited issues for plain error. Davis, 76 M.J. at 227 n.1.

4 This test applies to all forms of retirement benefits, including 

retirement for disability.

5 Because Appellee failed to request the instruction, we need 

not decide whether the facts here constitute a sufficient evidentiary 

predicate for the instruction.
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Opinion of the Court

6

of retirement benefits for which he did not request an instruction. That attempt, however, does not change the clear statement of the prospective rule, nor does it create a duty for a 

military judge to sua sponte instruct on the effect of a punitive 

discharge on retirement benefits. Rather, where the two-part 

test is met, the military judge must

be liberal in granting requests for such an instruction. [The military judge] may deny a request . . . 

only in cases where there is no evidentiary predicate 

for it or the possibility of retirement is so remote as 

to make it irrelevant to determining an appropriate 

sentence. 

 The instruction should be appropriately tailored 

to the facts of the case with the assistance of 

counsel . . . .

Id. at 221.

While both the evidentiary predicates and benefits for 

retirement for length of service and disability retirement—

temporary or permanent—may be different, there is no 

question that a punitive discharge affects each form of 

retirement in turn. We thus clarify that both an actual 

predicate and a request by a party are required for an 

instruction on the effects of a punitive discharge with respect 

to all forms of retirement.

6

Requiring a request appropriately puts counsel for both 

sides in control of deciding whether such an instruction comports with their overall strategy and prevents the military 

judge from unduly interfering with that strategy. Cf. Griffin, 

25 M.J. at 424 (finding no error where military judge, at trial 

counsel’s request and in response to a members’ question, instructed members about the effect of a punitive discharge on 

retirement benefits in the absence of a defense objection); 

 

6 We do not address situations where instructions might be 

needed to respond to a question from the members, see, e.g.,

Greaves, 46 M.J. at 134 (military judge erred in failing to correctly 

answer members’ questions about the effect of a bad-conduct discharge on retirement benefits), or to correct a misstatement of the 

law by counsel. Cf. United States v. Alameda, 57 M.J. 190, 199 

(C.A.A.F. 2002) (holding the military judge erred in failing to provide curative instructions after misstatements by counsel).
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7

United States v. Mead, 72 M.J. 479, 482 (C.A.A.F. 2013) (recognizing the accused retains the discretion whether to reveal 

a nonjudicial punishment record involving the same conduct 

at sentencing).7 This is consistent with the language in Boyd, 

which notes that where an instruction is given, it “should be 

appropriately tailored to the facts of the case with the assistance of counsel.” Boyd, 55 M.J. at 221 (emphasis added). 

III. DECISION

The Boyd test, which requires a request, cannot be 

squared with a sua sponte duty for a military judge to give 

the instruction. Accordingly, we answer the certified question 

in the affirmative.

The judgment of the United States Air Force Court of 

Criminal Appeals is affirmed as to findings and set aside as 

to the sentence. The case is returned to the Judge Advocate 

General of the Air Force for remand to the Court of Criminal 

Appeals for further review in accordance with this decision.

 

7 Indeed, there may be strategic reasons why defense counsel 

might not want to highlight the effects of a punitive discharge with 

an instruction, such as the fact that a punitive discharge cuts off an 

accused’s retirement eligibility. Cf. United States v. Stargell, 49 

M.J. 92, 93 (C.A.A.F. 1998) (affirming the government’s argument 

at sentencing that the appellant would honorably retire if not sentenced to a punitive discharge under the facts of that case).