UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39692

________________________

UNITED STATES

Appellee

v.

Matthew L. GILLIAN

Master Sergeant (E-7), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 30 October 2020

________________________

Military Judge: Wesley A. Braun.

Approved sentence: Bad-conduct discharge, confinement for 19 months,

reduction to E-3, and a reprimand. Sentence adjudged 20 February 2019

by GCM convened at Scott Air Force Base, Illinois. 

For Appellant: Major Yolanda D. Miller, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Jessica 

L. Delaney, USAF; Mary Ellen Payne, Esquire.

Before LEWIS, RICHARDSON, and CADOTTE, Appellate Military 

Judges.

Judge RICHARDSON delivered the opinion of the court, in which Senior

Judge LEWIS and Judge CADOTTE joined. 

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

RICHARDSON, Judge:

A military judge sitting as a general court-martial convicted Appellant, in 

accordance with his pleas pursuant to a pretrial agreement of one specification

each of possessing a Schedule IV substance (Phentermine) and importing a 
United States v. Gillian, No. ACM 39692

2

Schedule III substance (anabolic steroids), both on divers occasions; one specification of assault consummated by a battery on his then-wife HG; and two 

specifications of communicating a threat to HG, in violation of Articles 112a, 

128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 

928, 934.1 The military judge sentenced Appellant to a bad-conduct discharge, 

confinement for 19 months, reduction to the grade of E-3, and a reprimand. 

The convening authority approved the sentence as adjudged.2 Additionally, he 

granted a deferral of mandatory forfeitures until action, then a waiver of mandatory forfeitures for the benefit of Appellant’s dependents.

On appeal, Appellant personally raises four issues3 pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether the military judge 

considered improper matters in the victim-impact statement of HG; (2) 

whether trial counsel erroneously argued that Appellant should be punished 

for crimes for which he was not convicted; (3) whether it was error to omit 

combat service from the personal data sheet (PDS) provided to the military 

judge and convening authority; and (4) whether some of the anabolic steroids 

are considered exempt from the Controlled Substances Act.4 Appellant requests sentencing relief in the form of setting aside the reduction in rank.5 We 

have carefully considered issue (3) with respect to the military judge and issue

(4), and determine they warrant no discussion or relief. See United States v. 

Matias, 25 M.J. 356, 361 (C.M.A. 1987). Finding no error materially prejudicial 

to Appellant’s substantial rights, we affirm the findings and sentence.

 

1 In this opinion we do not distinguish offenses committed before or after publication 

of the Manual for Courts-Martial, United States (2016 ed.) (2016 MCM), as that distinction does not affect our analysis of the presented issues. Unless otherwise noted, 

all references in this opinion to the UCMJ and the Rules for Courts-Martial (R.C.M.) 

are to the 2016 MCM.

2 The terms of the pretrial agreement did not affect the ability of the convening authority to approve the sentence as adjudged. However, it did require the convening authority to withdraw and dismiss a charge and specification alleging a violation of Article 

120, UCMJ, 10 U.S.C. § 120, which the Government did after sentence was announced.

3 Appellant personally raises two issues, which we considered as four distinct issues. 

4 We presume Appellant refers to 21 U.S.C. §§ 801−904, 951−71.

5 We note that Appellant, through trial defense counsel, requested the military judge 

sentence Appellant to a punitive discharge and confinement for 50 days. The military 

judge ensured Appellant understood and concurred with this argument for a bad-conduct discharge. 
United States v. Gillian, No. ACM 39692

3

I. BACKGROUND

Appellant and his wife, HG, did not have an amicable divorce. As they were 

planning custody and visitation arrangements for their two children (aged 4 

years and 8 years), Appellant engaged in heated arguments with his wife. HG

secretly recorded their conversations, expecting to hear confirmation of her 

suspicion that Appellant was having an extramarital affair. What was captured in the recordings were threats Appellant made to HG to harm her. On 

the first charged occasion, on or about 15 December 2015, Appellant threatened to injure her by “choking her and knocking her out,” and he grabbed HG

around the neck with his hands. Appellant made the threatening statements 

in the presence of their children. The second charged threat occurred five days 

later, when Appellant told HG he was “going to kill her and burn down her 

house.” 

Also recorded was Appellant talking about procuring and using anabolic 

steroids. Specifically, on 3 February 2016 Appellant told HG, “I’m done with 

that expensive guy though, I am just going to order it online, do it myself; it is 

cheaper. . . . It’s just illegal to get it. . . . I do it Wednesday and Saturday, and 

it keeps everything steady, you know and you feel good.” In another recording

several days later—this time speaking with an unidentified individual about a 

particular anabolic steroid—Appellant said he “just has to shoot it every other 

day.” 

Starting in the spring of 2017, Appellant procured Phentermine by getting 

prescriptions from multiple civilian doctors over the same time period. His 

name was flagged by the Tennessee Prescription Monitoring Program for this 

“doctor shopping.” Appellant explained in the guilty-plea inquiry that filling 

prescriptions from “doctor shopping” is “illegal” and therefore his possession of 

Phentermine was wrongful. Appellant stipulated to obtaining prescriptions of 

Phentermine through “subterfuge,” and that Phentermine was a “diet pill” that 

he “enjoyed taking . . . and it gave him an energy ‘high.’”

Indeed, Appellant stipulated to numerous facts as summarized in Prosecution Exhibit 1—the Stipulation of Fact—as well as “to the foundation, relevance, and admissibility of Attachments 1−9 and agree[d] to their use should 

the Government seek to use any of them for the sentencing portion of this general court-martial.” Those attachments contained Appellant’s prescription history; interview with law enforcement; video and audio recordings regarding 

steroids, threats, and the assault; photos of text messages offering to get steroids for another; and photographs of Appellant using and injecting anabolic 

steroids, and of the packages and containers shipped from overseas.
United States v. Gillian, No. ACM 39692

4

II. DISCUSSION

A. Personal Data Sheet

1. Additional Background

The PDS (Prosecution Exhibit 2) admitted at trial without objection and 

attached to the staff judge advocate’s recommendation (SJAR) listed Appellant’s “Combat Service” and “Overseas Service” as “None.” It also listed several 

awards and decorations, including the Armed Forces Expeditionary Medal, the

Global War on Terrorism Expeditionary Medal, and the Air Force Expeditionary Service Ribbon.

Admitted at trial was a Certificate of Appreciation recognizing Appellant’s 

completion of a four-month tour of duty at Al Udeid Air Base, Qatar, from July 

to November 2004. Appellant briefly mentioned this deployment during his 

unsworn statement to the court, explaining he got the idea to become a recruiter while he “was deployed to the desert, lifting weights with this guy” and 

clarified he “did one deployment to Qatar, you know, to Al Udeid Air Base back 

in ‘04.’”

Qatar was a designated imminent-danger pay area throughout 2004. See 

Department of Defense 7000.14-R, Financial Management Regulation (DoD 

FMR), Volume 7A, Chapter 10, Figure 10-1 (Nov. 2018).

2. Law

Proper completion of post-trial processing is a question of law this court 

reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. 

App. 2004) (citation omitted). “Failure to timely comment on matters in the 

SJAR, or matters attached to the recommendation, forfeits any later claim of 

error in the absence of plain error.” United States v. LeBlanc, 74 M.J. 650, 660 

(A.F. Ct. Crim. App. 2015) (en banc) (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)). To prevail 

under a plain error analysis, an appellant must show “(1) there was an error; 

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

substantial right.” Id. (citation omitted). The threshold to establish prejudice 

from errors which impact an appellant’s request for clemency from the convening authority is low, even in the context of plain error analysis; however there 

must be “some colorable showing of possible prejudice.” Id. (quoting Scalo, 60 

M.J. at 437). 

Before taking action on a sentence, the convening authority must consider 

the SJAR. R.C.M. 1107(b)(3)(A)(ii). The SJAR in an Air Force case should contain a copy of the PDS admitted at trial. Air Force Instruction (AFI) 51-201, 
United States v. Gillian, No. ACM 39692

5

Administration of Military Justice, ¶ A11.15 (18 Jan. 2019).6 The Government 

may introduce a PDS during presentencing as a summary of an accused’s personnel records reflecting his “past military efficiency, conduct, performance, 

and history.” United States v. Holder, No. ACM 39680, 2020 CCA LEXIS 262, 

at *8 (A.F. Ct. Crim. App. 7 Aug. 2020) (unpub. op.) (citing AFI 51-201, ¶ 12.26

(18 Jan. 2019)); see also R.C.M. 1001(b)(2).

An error in the SJAR “does not result in an automatic return by the appellate court of the case to the convening authority.” United States v. Green, 44 

M.J. 93, 95 (C.A.A.F. 1996). “Instead, an appellate court may determine if the 

accused has been prejudiced by testing whether the alleged error . . . would 

have led to a favorable recommendation by the SJA or corrective action by the 

convening authority.” Id. (citations omitted).

The Rules for Courts-Martial do not require the SJA to inform the convening authority of an accused’s combat service. However, when the SJAR does 

address such matters, the information must be accurate. See United States v. 

Parker, 73 M.J. 914, 921 (A.F. Ct. Crim. App. 2014) (finding plain error when 

the PDS omitted any mention of Appellant’s combat and overseas service in 

Qatar and the United Arab Emirates).

“Combat service” on a PDS identifies “service for which the member was 

awarded ‘special pay for duty subject to hostile fire or imminent danger’ per 

DoD 7000.14-R, Department of Defense Financial Management Regulation, 

Volume 7A, Chapter 10.” AFI 51-201, Figure A2.11, n. 4.

3. Analysis

As Appellant did not comment on the omission of combat service on the 

PDS in his clemency submission, we review its use in post-trial processing for 

plain error. If Appellant’s personnel records contained sufficient information 

about his deployment in 2004 to characterize it as “combat service,” the PDS 

was in error by instead indicating “None.” However, that fact is not clear from 

the record. 

Appellant’s enlisted performance report from the relevant time period 

states he was a “[p]henomenal AGE dispatch driver in support of Operations 

ENDURING FREEDOM and IRAQI FREEDOM” and refers to a 120-day deployment, but does not name the location. The Certificate of Appreciation for 

Appellant’s four-month deployment to Qatar was not authenticated at trial, 

and does not on its face indicate whether it came from his personnel record. In 

 

6 This is the version of AFI 51-201 in effect on the date the personal data sheet (Prosecution Exhibit 2) indicates it was prepared—19 February 2019.
United States v. Gillian, No. ACM 39692

6

support of his assignments of error, Appellant declared he was deployed to 

“Qatar in 2004 for a six-month period” and received imminent-danger pay and 

hazardous-duty pay.7

Assuming the omission of Qatar on the PDS provided to the convening authority was plain and obvious error, we find no colorable showing of possible 

prejudice in this case. See Scalo, 60 M.J. at 436–37. Appellant has not attempted to show—nor do we find—that he would have received a favorable 

recommendation by the SJA or corrective action by the convening authority 

without the error. The convening authority would have seen from the PDS that 

Appellant was awarded two expeditionary medals and one expeditionary ribbon, indicating one or more deployments. Even if the PDS listed a four-month 

deployment to Qatar in 2004 as “combat service,” it would have provided no 

additional information about the nature of the deployment, including any heroic or courageous acts. Appellant made only a passing reference to his deployment during his unsworn statement to the court-martial, and no reference in 

his request for clemency. While all successfully completed deployments are 

commendable, Appellant gives us no indication this deployment was especially 

noteworthy. See Parker, 73 M.J. at 921. 

B. Victim Impact Statement

1. Additional Background

When trial defense counsel objected to HG’s written statement (Court Exhibit a), he cited R.C.M. 1001(c)(2)(B), Manual for Courts-Martial, United 

States (2019 ed.) (2019 MCM). The basis of Appellant’s objection was that it 

contained a “lengthy discussion of things [Appellant ] . . . pled not guilty to” or 

otherwise contained matters that were not directly related to or arising from 

the offenses of which Appellant was convicted. After some confusion, and then 

discussion of R.C.M. 1001(c) (2019 MCM) and R.C.M. 1001A, Manual for 

Courts-Martial, United States (2016 ed.) (2016 MCM), the military judge chose 

to follow the latter, noting it was “really similar” to the new rule and was “in 

effect at that time.”8

HG, through her special victims’ counsel, asserted all the incidents described in her unsworn statement were either already in evidence or were related to offenses of which Appellant was convicted. The Government agreed 

 

7 Even assuming we were authorized to consider this extra-record declaration regarding an issue first raised on appeal, we reject Appellant’s assertion he was deployed to 

Qatar for six months. See United States v. Jessie, 79 M.J. 437, 444−445 (C.A.A.F. 2020).

8 We understand the military judge to mean that at the time the offenses were referred 

to trial by court-martial—5 November 2018—R.C.M. 1001A (2016 MCM) was still in 

effect.
United States v. Gillian, No. ACM 39692

7

with trial defense counsel that the sexual assaults HG described were outside 

the scope of permissible victim-impact evidence. The military judge ruled that 

certain references to sexual assault “be removed from the victim’s unsworn 

statement prior to its delivery.” He also stated, 

the court is aware of—and I’ll repeat this again at the end, the 

court is aware of what the accused has pled guilty to and what 

he is being sentenced [for]. So the court will apply and will give 

that information the correct weight that it deserves and understands completely that it is only punishing the accused for the 

offenses to which he has pled guilty. 

The military judge repeated this sentiment multiple times. He then accepted

a second version of HG’s statement (Court Exhibit b), which was redacted in 

accordance with his ruling and to which trial defense counsel had no additional 

objections. 

HG read Court Exhibit b to the military judge. In sum, the oral and written 

statements painted a clear picture of domestic abuse and violence, including 

Appellant’s attempts to isolate her. It entwined facts not strictly arising from 

the convicted offenses. For example, she stated, “All of these things, the emotional and psychological abuse, the threats on my life as well as others, the 

drugs, the guns, the affairs and the physical assaults, I chose to sweep all of 

these things to the side when we finally got a divorce.” While she did not specifically address the alleged sexual assault, she talked about threats and physical assault, including stating, “Sometimes I would stop at the bathroom and 

vomit before I made it to bed. I would lie awake wondering if you’d come in to 

hurt me later.” Later, when talking about her fiancé, she said he “dealt with 

[her] not being able to have sex without crying or struggling to breathe, constantly reminding [her] that he is not [Appellant].” She talked about Appellant 

and their children,9 explaining how she saw the effects of his behavior on them, 

and how now, after the divorce, Appellant routinely ended his allotted visitation time periods early. Finally, she described the long-term effects she suffered as a result of Appellant’s behavior towards her. 

Immediately after HG returned to the gallery, the military judge stated, “I 

just want to note as I said I would, Defense Counsel, this court is aware of the 

 

9 “[A] parent responsible for the safety and well-being of children and who witnesses 

the suffering of those children may be harmed as much as, if not more than, the children themselves. The injury, however, must still directly relate to or arise from the 

offenses of which Appellant was convicted.” United States v. Dunlap, No. ACM 39567, 

2020 CCA LEXIS 148, at *25–26 (A.F. Ct. Crim. App. 4 May 2020) (unpub. op.), rev. 

denied, No. 20-0243, 2020 CAAF LEXIS 528 (C.A.A.F. 22 Sep. 2020). 
United States v. Gillian, No. ACM 39692

8

constraints of [R.C.M.] 1001A and this court will only consider those matters 

which are victim impact or mitigation per the requirements of the rule.” 

2. Law

A military judge’s interpretation of Rules for Courts-Martial addressing 

victim-impact statements is a question of law we review de novo. See United 

States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018) (citations omitted). We review a military judge’s decision to accept a victim impact statement for an 

abuse of discretion. See id. at 383.

A victim has a right to be reasonably heard in a sentencing hearing. Article 

6b(a)(4)(B), UCMJ, 10 U.S.C. § 806b(a)(4)(B). A “crime victim” is “an individual 

who has suffered direct physical, emotional, or pecuniary harm as a result of 

the commission of an offense of which the accused was found guilty.” R.C.M. 

1001A(b)(1). A victim may make a sworn or unsworn statement during sentencing in a non-capital case. R.C.M. 1001A(b)(4)(B). An unsworn statement 

may be oral, written, or both. R.C.M. 1001A(e). Statements offered under 

R.C.M. 1001A may address victim impact, which “includes any financial, social, psychological, or medical impact on the victim directly relating to or arising from the offense of which the accused has been found guilty.” R.C.M. 

1001A(b)(2). 

Unsworn victim impact statements must comply with R.C.M. 1001A to be 

presented at sentencing. See United States v. Hamilton, 78 M.J. 335, 337 

(C.A.A.F. 2019). As they are not “evidence” under R.C.M. 1001A, “the military 

judge assesses the content of a victim’s unsworn statement not for relevance, 

but for scope.” United States v. Hamilton, 77 M.J. 579, 586 (A.F. Ct. Crim. App. 

2017) (en banc), aff’d, 78 M.J. 335 (C.A.A.F. 2019).

When there is error regarding the presentation of victim statements in sentencing, the test for prejudice “is whether the error substantially influenced 

the adjudged sentence.” Barker, 77 M.J. at 384 (citation omitted). When determining whether an error had a substantial influence on a sentence, this court 

considers the following four factors: “(1) the strength of the Government’s case; 

(2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question.” Id. (citation and internal 

quotation marks omitted). “An error is more likely to be prejudicial if the fact 

was not already obvious from the other evidence presented at trial and would 

have provided new ammunition against an appellant.” Id. (citation omitted)

“Military judges are presumed to know the law and to follow it absent clear 

evidence to the contrary. As part of this presumption we further presume that 

the military judge is able to distinguish between proper and improper sentencing arguments.” United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007) 
United States v. Gillian, No. ACM 39692

9

(citation omitted). This presumption holds regardless of whether the military 

judge notes the improper portions or states what portions he will consider. Id. 

3. Analysis

As an initial matter, we agree that the Rules for Courts-Martial regarding 

crime-victim matters at issue in this case did not substantially change with 

the publication of the 2019 MCM. Hence, without deciding which version applied to Appellant’s sentencing hearing, we conclude that the military judge

interpreted the correct language. Moreover, we find that his interpretations 

were not in error. We will cite to R.C.M. 1001A just as Appellant did in his 

assignments of error brief. 

The victim-impact statement contained some matters that were not clearly

“directly relating to or arising from the offense[s] of which [Appellant] was 

found guilty.” R.C.M. 1001A(b)(2). The military judge recognized this. He explicitly stated he would consider only what is allowed under the applicable 

rule; we have no reason to doubt him. 

We decline to hold the military judge should have parsed out any portions 

that were outside the scope of proper victim-impact matters, whether by requiring redactions or stating exactly which portions would be considered. 

Moreover, we decline to take on that task ourselves. Mindful of the reality of a 

military judge-alone sentencing hearing, our decision focuses on the presumptions that the military judge knows the law and will consider only what is 

proper. We see no evidence to rebut those presumptions; in fact, we see the 

opposite from the military judge’s own words. We find presentation of victimimpact matters outside the scope of R.C.M. 1001A in this judge-alone case had 

no substantial influence on the sentence, and we are confident that Appellant 

was sentenced based on proper victim-impact matters. 

C. Trial Counsel’s Argument

1. Additional Background

In sentencing argument, trial counsel addressed matters that were in evidence, either through the stipulation of fact and its attachments or Appellant’s 

words during the guilty-plea inquiry, but not on the charge sheet. Most of these 

statements related to drugs, including how Appellant’s use of those drugs 

fueled threats and violence against HG. Specifically, trial counsel argued: 

He could have said no to injecting anabolic steroids into his 

body. But every step of the way, he said yes. He said yes to crime. 

He said yes to illicit drugs. Why? Because he liked the way it 

made him look and feel. He liked feeling big and mighty and he 

liked being in control, and he used that physical strength to prey 

on his spouse. 
United States v. Gillian, No. ACM 39692

10

He broke the law. . . . not while using one drug. But while using 

multiple drugs, and even offering to give those drugs to others.

At this point, trial defense counsel objected to trial counsel arguing facts not 

in evidence. Trial counsel responded that an attachment to the stipulation of 

fact included evidence that Appellant promised to send a female “drugs in the 

mail even though drugs made him nervous.” The military judge agreed with 

trial counsel and overruled the objection. Trial counsel continued her argument, including these statements, which drew no objections: 

Your Honor, when the steroids weren’t enough, the accused 

turned to uppers, he turned to Phentermine.

. . . .

Your honor, this was not done in the heat of the moment; this 

was a pattern of abuse. She didn’t just have to live and endure 

the unpredictable, erratic, and violent behaviors of a drug user, 

but she had to live with an abusive husband as well. 

. . . . 

. . . Confinement will send a clear message about the unacceptable nature of drug use in the Air Force.

. . . The dishonorable discharge will show [A]irmen that there 

will be consequences for abusing drugs and abusing your wife.

2. Law

“It is appropriate for trial counsel—who is charged with being a zealous 

advocate for the Government—to argue the evidence of record as well as all 

reasonable inferences fairly derived from such evidence.” United States v. Baer, 

53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel’s argument 

“must be viewed within the context of the entire court-martial” rather than in 

isolation. Id. at 238 (citing United States v. Young, 470 U.S. 1, 16 (1985)) (additional citation omitted). Uncharged misconduct is not “ipso facto inadmissible in a case in which an accused has pleaded guilty” and can demonstrate a 

“course of conduct” directly related to the convicted offense. United States v. 

Silva, 21 M.J. 336, 337 (C.M.A. 1986) (citations omitted). 

When an appellant did not object at trial to trial counsel’s sentencing argument, courts review for plain error. United States v. Halpin, 71 M.J. 477, 479 

(C.A.A.F. 2013). 

Plain error occurs when (1) there is error, (2) the error is clear 

or obvious, and (3) the error results in material prejudice to a 

substantial right of the accused. Thus, we must determine: (1) 

whether trial counsel’s arguments amounted to clear, obvious 
United States v. Gillian, No. ACM 39692

11

error; and (2) if so, whether there was a reasonable probability 

that, but for the error, the outcome of the proceeding would have 

been different. 

United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citations and internal 

quotation marks omitted), cert. denied, 140 S. Ct. 2566 (2019). The burden to 

establish plain error, including prejudice, is on the appellant. Id. at 9, 12. When 

determining prejudice, we look at the cumulative impact of the improper argument on an appellant’s substantial rights and the fairness and integrity of his 

trial, and weigh three factors: (1) the severity of the misconduct, (2) the 

measures adopted to cure the misconduct, and (3) the weight of the evidence 

supporting the sentence. See Voorhees, 79 M.J. at 12; Halpin, 71 M.J. at 480. 

3. Analysis

Trial counsel argued facts in evidence that included uncharged misconduct 

but were proper matters in aggravation. See R.C.M. 1001(b)(4). Why Appellant

possessed the drugs is a matter “directly relating to or resulting from” his conviction for drug possession. Therefore, it was proper for trial counsel to argue 

that Appellant used drugs and offered to give some to another, as well as the 

effects of his use. Additionally, trial counsel’s argument that Appellant was an 

abusive husband was proper based directly on the threats and assault for 

which Appellant was convicted, as well as evidence of related misconduct 

against his wife that provided context to those offenses. That Appellant’s drug 

use played a role in his abusive behavior was a reasonable inference for trial 

counsel to draw from the evidence.

Assuming trial counsel’s argument contained matters outside the proper 

scope and were plain error, we have considered the test for prejudice in Halpin

and Voorhees, discussed supra, and find presentation of these matters to the 

military judge did not substantially influence Appellant’s sentence nor otherwise materially prejudice a substantial right of Appellant. We emphasize again 

the presumption that the military judge knows the law and recognizes improper argument, and will consider only what is proper. Again, in this militaryjudge-alone case we see no evidence to rebut those presumptions. Any error in 

trial counsel’s argument was not severe, and the military judge’s measures to 

address it were sufficient. While uncharged misconduct comprised a substantial portion of the facts in evidence, trial counsel tied that conduct to the 

charged offenses as matters in aggravation. We are confident that Appellant 

was sentenced based on proper evidence and argument alone, and there is no 

reasonable probability that, but for any improper argument, the outcome of the 

proceeding would have been different. 
United States v. Gillian, No. ACM 39692

12

III. CONCLUSION

The approved findings and sentence 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 sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court