UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

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No. ACM S32738

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UNITED STATES

Appellee

v.

Garrett J. PAGAN

Airman Basic (E-1), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 11 August 2023

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Military Judge: Mark F. Rosenow.

Sentence: Sentence adjudged 23 June 2022 by SpCM convened at Barksdale Air Force Base, Louisiana. Sentence entered by military judge on 

24 July 2022: Bad-conduct discharge and confinement for 60 days.

For Appellant: Major Abhishek S. Kambli, USAF.

For Appellee: Colonel Matthew D. Talcott, USAF; Lieutenant Colonel 

Thomas J. Alford, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen 

Payne, Esquire.

Before JOHNSON, GRUEN, and MASON, Appellate Military Judges.

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

JOHNSON and Judge GRUEN joined. 

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This is an unpublished opinion and, as such, does not serve as 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

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

accordance with his pleas, of two charges with one specification each of wrongfully using cocaine, in violation of Article 112a, Uniform Code of Military 
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Justice (UCMJ), 10 U.S.C. § 912a.

1 A panel of officer members sentenced Appellant to a bad-conduct discharge and confinement for 60 days. The convening 

authority took no action on the findings or sentence.

Appellant raises one assignment of error: whether the military judge erred

in his instruction to the members on a bad-conduct discharge. We find no error 

materially prejudicial to Appellant’s substantial rights and affirm the findings 

and sentence.

I. BACKGROUND

On 23 October 2021, Appellant was at a bar in Shreveport, Louisiana. 

While there, he was approached by a civilian and offered cocaine. Appellant 

accepted. He used a dollar bill to ingest the cocaine through his nose. Two days 

later, he provided a urine sample pursuant to the Air Force’s Drug Demand 

Reduction Program. That urine sample tested positive for cocaine. On 4 April 

2022, Appellant was convicted by a summary court-martial and sentenced to 

14 days’ confinement and reduction to the grade of E-1.

Three days before his summary court-martial, on 1 April 2022 Appellant 

again proceeded to a bar in Shreveport, Louisiana. He asked an individual at 

the bar if they had any “coke.” The individual did. Appellant purchased cocaine 

from this individual. Appellant then went to the bathroom and used a dollar 

bill to ingest the cocaine through his nose. At some point after this use, Appellant provided a urine sample which tested positive for cocaine.

On 15 April 2022, merely days after being released from confinement as a

result of his summary court-martial sentence, Appellant was again at a bar in 

Shreveport, Louisiana. There, he asked an individual at the bar if they had 

any “coke.” The individual did. Appellant purchased cocaine. He then went to 

the bathroom and used a dollar bill to ingest the cocaine through his nose. At 

some point after this use, Appellant provided a urine sample which tested positive for cocaine.

On 22 June 2022, Appellant pleaded guilty to the uses of cocaine on 1 April 

2022 and 15 April 2022 at a special court-martial which is the subject of this 

opinion. The military judge accepted Appellant’s guilty pleas and entered findings consistent with Appellant’s pleas. Appellant selected sentencing by officer 

members. Prior to the members arriving for the presentencing proceedings, the 

military judge conducted an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session 

with counsel. During this session, trial counsel requested a special instruction 

with regard to the bad-conduct discharge punishment option. Trial counsel 

1 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for 

Courts-Martial are to the Manual for Courts-Martial, United States (2019 ed.).
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requested that instead of the standard instruction on a bad-conduct discharge, 

that the members be provided the following:

A bad[-]conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad conduct rather 

than as a punishment for serious offenses of either a civilian or 

military nature. It is also appropriate for an accused who has 

been convicted repeatedly of minor offenses and whose punitive 

separation appears to be necessary.

The military judge heard the parties’ positions on this proposed instruction

at that time. Trial defense counsel objected to this instruction arguing that the 

language was confusing and that it simply served to bolster the Government’s 

argument. The military judge stated that he would wait until all the evidence 

was in before he finalized the instructions, at which time the military judge

would finish his draft instructions and send it to the parties for review.

When the evidence for the presentencing phase of the trial was completed, 

the military judge conducted an Article 39(a), UCMJ, session to discuss the 

draft instructions he had provided to the parties. The section on the bad-conduct discharge punishment option prompted further discussion. The draft instruction stated:

You are advised that the stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will place 

limitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that he has served honorably. 

A punitive discharge will affect an accused’s future with regard 

to his legal rights, economic opportunities, and social acceptability. 

This court may adjudge a bad-conduct discharge. Such a discharge deprives one of substantially all benefits administered by 

the Department of Veterans Affairs and the military establishment. A bad-conduct discharge is a severe punishment and may 

be adjudged for one who, in the discretion of the court, warrants 

severe punishment for bad conduct, even though such bad conduct may not include the commission of serious offenses of a military or civil nature.

A bad-conduct discharge may also be adjudged for one, who in 

the discretion of the court, has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary, keeping in mind that the accused is to be punished only for 
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the offenses of which the accused has been found guilty in this 

court-martial. 

Noting the trial defense counsel’s prior objections were preserved, the military judge stated, 

This is not what the [G]overnment had put forward, but it is a 

translation of the language that comes out of the Rules for 

Courts-Martial, and it is softened in a way so it doesn’t say something like, “this would be appropriate,” because I’m not going to 

get at the imprimatur of appropriateness or inappropriateness.

He then asked trial defense counsel if they had additional concerns to raise. 

Trial defense counsel proposed, “immediately before the final period of the 

highlighted portion—so the portion, ‘in this court-martial, however, a bad[-

]conduct discharge need not be adjudged,’ or something to that effect.” The military judge declined to add the requested language and explained his thought 

process stating:

I understand that. I will tell you that where it’s sitting right now, 

the way that this will get read is, “you may adjudge a bad[-]conduct discharge,” which I would always give. The blue portion, “it 

may also be adjudged.” And then, I am just highlighting to you, 

the immediate next thing I say after that one sentence is, “Finally, if you wish, this court may sentence the accused to no punishment.” So that’s kind of, in my mind, the coda that you’re 

looking for is right there, because I’m emphasizing to them, no 

punishment at all. No punishment certainly includes no punitive 

discharge. So that answers my concern there, but I will hear 

from you if you have any proposed language, because I’ll consider 

it before deciding on finalized language.

Trial defense counsel asked for a moment and conferred with his co-counsel. When they were finished, trial defense counsel stated, “Your Honor, I think 

we’re comfortable with the language as outlined.” 

A few moments later, the members were brought back into the courtroom

and the military judge instructed the members with the language reflected in

the draft he and counsel had just discussed. Upon the completion of instructions, the military judge asked counsel if they objected to any of the instructions or requested additional instructions. Both trial counsel and trial defense 

counsel stated, “No, Your Honor.”
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II. DISCUSSION

1. Law

We review a military judge’s sentencing instructions for an abuse of discretion. United States v. Talkington, 73 M.J. 212, 215 (C.A.A.F. 2014) (citation 

omitted). “In this context, a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the 

case’s facts and circumstances.” Id. (first citing United States v. Duncan, 53 

M.J. 494, 499 (C.A.A.F. 2000); and then citing United States v. Greaves, 46 M.J. 

133, 139 (C.A.A.F. 1997)). 

“The military judge shall give the members appropriate instructions on 

sentence.” Rule for Courts-Martial (R.C.M.) 1005(a); United States v. Barnett, 

71 M.J. 248, 252 (C.A.A.F. 2012). Required instructions on sentence include:

(1) A statement of the maximum authorized punishment that 

may be adjudged and of the mandatory minimum punish, if any;

(2) A statement of the effect any sentence announced including 

a punitive discharge and confinement, or confinement in excess 

of six months, will have on the accused’s entitlement to pay and 

allowances;

(3) A statement of the procedures for deliberation and voting on 

the sentence set out in R.C.M. 1006; 

(4) A statement informing the members that they are solely responsible for selecting an appropriate sentence and may not rely 

on the possibility of any mitigating action by the convening or 

higher authority;

(5) A statement that the members should consider all matters in 

extenuation, mitigation, and aggravation, whether introduced 

before or after findings, and matters introduced under R.C.M.

1001(b)(1), (2), (3), and (5);

(6) A statement that the members shall consider the sentencing 

guidance set forth in R.C.M. 1002(f); and

(7) Such other explanations, descriptions, or directions that the 

military judge determines to be necessary, whether properly requested by a party or determined by the military judge sua 

sponte. 

R.C.M. 1005(e)(1)–(7).

Rule for Courts-Martial 1003(b) sets forth the authorized punishments a 

court-martial may adjudge. The sole punitive discharge available at a special 

court-martial is a bad-conduct discharge. 
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A bad-conduct discharge applies only to enlisted persons and 

may be adjudged by a general court-martial and by a special

court-martial which has met the requirements of R.C.M. 

201(f)(2)(B). A bad-conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for badconduct [sic] rather than as a punishment for serious offenses of 

either a civilian or military nature. It is also appropriate for an 

accused who has been convicted repeatedly of minor offenses and 

whose punitive separation appears to be necessary.

R.C.M. 1003(b)(8)(C).

“During presentencing proceedings or at such other time as the military 

judge may permit, any party may request that the military judge instruct the 

members on the law as set forth in the request.” R.C.M. 1005(c). While counsel 

may request specific instructions, the military judge has substantial discretion 

in deciding on the instructions to give and whether the requested instruction 

is appropriate. This discretion must be exercised in light of correct principles 

of law as applied to the facts and circumstances of the case. United States v. 

Miller, 58 M.J. 266, 270 (C.A.A.F. 2003). 

Denial of a requested instruction is error if: (1) the requested 

instruction is correct; (2) “it is not substantially covered in the 

main charge”; and (3) “it is on such a vital point in the case that 

the failure to give it deprived [the] defendant of a defense or seriously impaired its effective presentation.”

Id. (alteration in original) (citations omitted). For the military judge’s refusal 

to instruct the members as requested to be error, all three prongs of this Miller 

test must be satisfied. Id. 

2. Analysis

Appellant argues first that the military judge’s instructions to the members 

on the bad-conduct discharge were confusing and conflicting with the standard 

instructions. The essence of Appellant’s argument is that the military judge 

erred when he departed from the standard instructions as set forth in the Military Judge’s Benchbook (Benchbook).

2 Suffice it to say, even if we did conclude 

(which we do not) that the military judge departed from the suggested Benchbook instructions in crafting his punitive discharge instruction, such departure 

standing alone does not constitute error. To be clear, the Benchbook is a restatement of law—it is not a substantive or binding source of law itself. As this 

court has previously explained: 

2 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 (29 Feb. 2020).
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while the Department of the Army Pamphlet 27-9, Military 

Judge’s Benchbook . . . is widely used as a reference guide, Air 

Force judges are not obligated to use it. Rather than rely blindly 

on this pamphlet, judges should ensure their instructions meet 

the requirements of the Manual for Courts-Martial . . . , the 

Rules for Courts-Martial, and case law.

United States v. Greszler, 56 M.J. 745, 746 (A.F. Ct. Crim. App. 2002). Instead, 

when evaluating allegations of sentencing instruction error, we look to the Miller factors to determine the propriety of the instruction. Miller, 58 M.J. at 270.

Even assuming arguendo that Benchbook “deviations” could themselves 

constitute error, here the military judge did not substantially deviate from the 

Benchbook. The following standard instructions are contained in the Benchbook and were substantially utilized by the military judge in this case:

You are advised that the stigma of a punitive discharge is commonly recognized by our society. A punitive discharge will place 

limitations on employment opportunities and will deny the accused other advantages which are enjoyed by one whose discharge characterization indicates that (he) (she) has served honorably. A punitive discharge will affect an accused’s future with 

regard to (his) (her) legal rights, economic opportunities, and social acceptability.

Benchbook, at 122.

This court may adjudge a bad-conduct discharge. Such a discharge may deprive one of substantially all benefits administered by the Department of Veterans Affairs and the military 

establishment. A bad-conduct discharge is a severe punishment 

and may be adjudged for one who in the discretion of the court 

warrants severe punishment for bad conduct (even though such 

bad conduct may not include the commission of serious offenses 

of a military or civil nature.).

. . . .

. . . Finally, if you wish, this court may sentence the accused to 

no punishment.

Benchbook, at 123–24.

The crux of Appellant’s argument and his chief complaint centers on the 

additional instruction the military judge added to the above including, 

A bad-conduct discharge may also be adjudged for one who in 

the discretion of the court has been convicted repeatedly of minor 
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offenses and whose punitive separation appears to be necessary, 

keeping in mind that the accused is to be punished only for the 

offenses of which the accused has been found guilty in this courtmartial.

The addition of this language does not create confusion or contradiction as 

Appellant avers. This language is straightforward and is found nearly verbatim in R.C.M. 1003(b)(8)(C), the language the President set forth explaining a 

bad-conduct discharge.

Here, the military judge was aware of his duty to properly tailor his instructions to the facts and circumstances of the case in front of him. Talkington, 73 M.J. at 215. During the presentencing proceedings, evidence of Appellant’s letter of counseling, nonjudicial punishment, record of vacation action of 

suspended nonjudicial punishment, as well as a prior summary court-martial 

conviction for the same misconduct as the charged offenses was presented. Seeing this, the military judge was well within his discretion to refer to the President’s guidance in R.C.M. 1003(b) on a bad-conduct discharge and tailor his 

instructions to incorporate the guidance that most accurately reflected an issue 

reasonably raised by the evidence in this case. In other words, the military 

judge did not err when he utilized relevant and applicable law in his instructions to the members.

Appellant argues second that the instruction, particularly the additional 

language from R.C.M. 1003(b)(8)(C), improperly “bolstered” the Government’s 

argument that this accused warranted a punitive discharge. The military judge 

was sensitive to this concern. Trial counsel’s proposed instruction tracked with 

R.C.M. 1003(b) and read, “It is also appropriate for an accused who has been 

convicted repeatedly of minor offenses and whose punitive separation appears 

to be necessary.” (Emphasis added). The military judge softened this language 

to read, “A bad-conduct discharge may also be adjudged.” This instruction did 

not improperly bolster the Government’s argument. The evidence reasonably 

raised an instruction on this issue. This clause of R.C.M. 1003(b)(8)(C) was 

applicable and an accurate statement of the law. Therefore, the military judge 

did not err in incorporating it into the instructions.

III. CONCLUSION

The findings and sentence as entered are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). 
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Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court