UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, CAMPANELLA, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist JUVENTINO TOVARCHAVEZ 

United States Army, Appellant 

ARMY 20150250 

Headquarters, 8th Theater Sustainment Command 

Gregory A. Gross, Military Judge 

Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial and recommendation) 

Lieutenant Colonel LaJohnne A.W. Morris, Acting Staff Judge Advocate (addendum) 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Ryan Yoder, JA; 

Major Brian J. Sullivan, JA (on brief); Captain Ryan Yoder, JA; Major Brian J. 

Sullivan, JA (reply brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain 

Ryan Yoder, JA; Major Brian J. Sullivan, JA (on brief in response to specified 

issues); Lieutenant Colonel Carrier, JA; Captain Cody Cheek, JA; Major Brian J. 

Sullivan, JA (reply brief to specified issues). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Melissa Dasgupta 

Smith, JA; Captain Christopher A. Clausen, JA (on brief); Major Michael E. Korte, 

JA; Captain Christopher A. Clausen, JA (on brief in response to specified issues). 

7 September 2017 

---------------------------------- 

MEMORANDUM OPINION 

---------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

WOLFE, Judge: 

Charged with sexually assaulting his fellow soldier Specialist (SPC) JR on 

two separate occasions, an enlisted panel of a general court-martial convicted 
TOVARCHAVEZ—ARMY 20150250 

2 

appellant only of the latter instance.1 Appellant collaterally attacks his conviction 

and claims his counsel were ineffective at trial.2

 Because the affidavits submitted by 

the parties contain material differences in fact that we cannot resolve on appeal, we 

remand the case for a hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 

147, 37 C.M.R. 411 (1967). Appellant also raises two assignments of legal error 

directly attacking the findings. Both merit discussion, but not relief. 

The case is before us for review under Article 66, UCMJ. The convening 

authority approved the adjudged sentence to a dishonorable discharge, confinement 

for two years, total forfeiture of pay and allowances, and reduction to E-1. 

LAW AND DISCUSSION 

A. Ineffective Assistance of Counsel 

Appellant alleges his defense counsel were deficient in cross-examining SPC 

JR and that this deficiency resulted in the panel finding him guilty. Appellant 

specifically asserts, as part of the assigned error, that the civilian defense counsel 

(CDC) even admitted his ineffectiveness. The government disagrees. 

1. May this court consider unsworn unauthenticated matter? 

Appellant relies on a printed email signed by “Don” from 

520508[####]@yzwplx.com that was included in appellant’s Rules for CourtsMartial [hereinafter R.C.M.] 1105 matters. Appellant asserts the email is from 

appellant’s civilian defense counsel to appellant’s military defense counsel. The 

date on the email indicates it was sent shortly after trial. 

 

1

 Appellant was charged with two specifications of sexual assault in violation of 

Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012 & Supp. I 

2014) [hereinafter UCMJ]. 

2

 Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant 

asserts the evidence is factually and legally insufficient to sustain a conviction. We 

disagree. Appellant also asks us to consider the issues of post-trial delay and 

ineffective assistance of counsel raised in his post-trial matters. We find the posttrial delay in this case did not rise to the level of a due process violation and does 

not warrant relief. Appellant’s ineffective assistance of counsel claims raised in his 

post-trial matters overlap with his assignment of error and sworn declaration. While 

we specifically address several of these claims, the Dubay court may consider all the 

factual and legal bases for appellant’s claims of ineffective assistance of counsel 

upon remand. 
TOVARCHAVEZ—ARMY 20150250 

3 

The substance of the email reads in its entirety as follows: 

[M], re Tovar appeal: I screwed up crossing CW.3

 I, alone 

was ineffective. Let’s talk how best to present issues on 

appeal, including pretrial issues. Even though I think I 

came out on top on all pretrial issues, my methodology 

can help lay the foundation for ineffective assistance 

crossing CW and reversal. Let’s talk [M]onday. Don’t 

want to drag you into it, but [I] lost respect for the 

military 40 years ago, so I’m not concerned with reversal 

for ineffective assistance. FYI, not sour grapes, I received 

an honorable discharge at 21, 4 years service, E5. I served 

very honorably, but what I witnessed was a disgrace. My 

bad for not being timely prepared. I believed battle 

stations were [T]uesday, not [M]onday. 

Appellant also asks us to consider an unsworn memorandum for record (MFR) 

by appellant’s post-trial defense counsel summarizing a conversation with the 

civilian defense counsel. (Appellant appears to have been assigned new post-trial 

counsel). The MFR recounts a conversation between military counsel and civilian 

defense counsel that occurred two to three months prior to the date of the MFR. The 

substantive paragraphs of the MFR are as follows: 

2. During this conversation [the CDC] told me he was 

ineffective in representing PVT Tovar-Chavez because he 

failed to cross[-]examine the victim effectively. He went 

on to say it was his first military trial and he did not 

realize the victim would take the stand the first day. As a 

result, he did not have any notes from her Article 32 

testimony with him and was completely unprepared to 

proceed. Additionally, he did not have the Article 32 

testimony transcribed. 

3. He did not ask the Military Judge for a delay. 

 

3

 In his brief, appellant notes that “CW” are not the initials of the victim or any 

other witness in the case. Appellant suggests that this misnaming of the victim is 

further evidence that the CDC was unprepared for trial. Given the context, we are 

certain that CW is an abbreviation for “complaining witness.” Even in his affidavit 

to this court submitted on appeal, the CDC continues to use “CW” to refer to the 

victim. 
TOVARCHAVEZ—ARMY 20150250 

4 

Both parties on appeal also ask us to consider the audio recording of the 

Article 32, UCMJ, preliminary hearing. Presumably, this is a reference to a CD 

included in the allied papers labeled “US v. Tovarchavez I.O. copy.” No one has 

authenticated the audio recording or claimed that it is an accurate and complete 

recording of the hearing. 

In resolving the issue of ineffective assistance of counsel presently before this 

court, we note that both parties ask us to rely on unauthenticated matter that is 

attached to the record of trial. That is, each party asks us to assume the authenticity 

of matter that, if it had been admitted at trial, would require at least some 

foundation. Indeed, as the Article 32, UCMJ, hearing occurred before the military 

judge was detailed to the case, and the R.C.M. 1105 matters were submitted after 

authentication, the military judge likely could not (even if asked) authenticate that 

such matters “accurately report[] the proceedings.” R.C.M. 1104(a)(1). The 

military judge did not “preside” over a proceeding in which these matters were 

considered. R.C.M. 1104(a)(2). The parties on appeal have not stipulated to the 

authenticity of the documents. Further, neither party on appeal filed a motion for us 

to consider the documents. 

In United States v. Cade, 75 M.J. 923, 928 (Army Ct. Crim. App. 2016) we 

defined what is the “record of trial on appeal.” We found the President had 

answered this question when he defined the “contents” of the record of trial in 

R.C.M. 1103(b)(2). Id. Allied documents and other matter “attached” to the record 

of trial are not part of the record of trial. Id.; See R.C.M. 1103(b)(3). Neither the 

military judge nor anyone else has certified or authenticated matters “attached” to 

the record as being accurate. See R.C.M. 1104. In Cade, we required that matter 

from outside the record of trial must be sworn by someone with personal knowledge. 

75 M.J. at 930. 

The problem with considering unsworn unauthenticated matter that was never 

subjected to adversarial testing should be obvious. Both parties (and recently crime 

victims) have broad authority to unilaterally attach matters to the record of trial (the 

accused in his submission of R.C.M. 1105 matters and the government in assembling 

the record and determining which allied papers to include). See R.C.M. 1103(b)(1). 

The Military Rules of Evidence do not–in the main–apply to submission of matters 

at Article 32, UCMJ, hearings or in post-trial. See Military Rule of Evidence 1101. 

Absent a stipulation by the parties, matter submitted to the court for consideration 

that is not part of the authenticated record of trial should be accompanied by a sworn 

declaration that the matter is what a party says it is. 

Confusion on this issue perhaps stems from the fact that this court does 

consider post-trial matters in determining the appropriateness of the sentence. Our 

superior court has clearly said so. See United States v. Boone, 49 M.J. 187, 192 

(C.A.A.F. 1998). To forestall needless motion practice, our local rules allow for an 
TOVARCHAVEZ—ARMY 20150250 

5 

appellant to request in the appellant’s brief that we consider the post-trial 

submissions. However, our sentence appropriateness review is a separate endeavor 

from our determination of whether there was legal or factual error in the trial. “It is 

inappropriate to base an appellate opinion on assertions dehors the record.” United 

States v. Matthews, 68 M.J. 29, 41 (C.A.A.F. 2009) (citing United States v. Crouch, 

566 F.2d 1311, 1316 (5th Cir. 1978) (internal ellipses omitted)). For example, an 

appellant could rightly cry foul if we were to affirm a finding as correct in law 

because (at least in part) of a factual assertion made in a crime victim’s submission 

under R.C.M. 1105A. 

However, Boone itself distinguishes between Courts of Criminal Appeals’ 

review of sentences as being appropriate and determinations as to whether the 

findings and sentence are correct in law and fact. 49 M.J. at 193. The Court of 

Appeals for the Armed Forces (CAAF) stated that “[w]e have recognized that there 

are legitimate and salutary reasons for the now-Court of Criminal Appeals to have 

the discretion to obtain evidence by affidavit, testimony, stipulation, or a factfinding 

hearing, as it deems appropriate.” Id. Except for a stipulation (which requires 

agreement by both parties), at each instance listed by the CAAF the matter appears 

to be coming to the court by way of oath or sworn declaration. 

Thus, our superior court has not required post-trial hearings to resolve 

conflicting accounts created by unsworn submissions. See United States v. Lofton, 

69 M.J. 386, 391 (C.A.A.F. 2011) (convening authority not required to order posttrial hearings based on unsworn unsubstantiated statements). 

Likewise, while we do not doubt the integrity of counsel,4

 our superior court 

has made it clear that we cannot consider court filings to be the equivalent of sworn 

declarations. United States v. Lewis, 42 M.J. 1, 4 (C.A.A.F. 1995) (“The question 

remains whether the Army court erred by treating defense counsel’s motion as the 

“functional equivalent” of an affidavit. We hold that it was error . . . .”). That is, 

even assuming that appellate counsel had personally verified in their briefs that the 

allied papers they wish us to consider are what they say they are, we cannot treat a 

brief as if it were an affidavit. 

Normally, we need not remand for factfinding based on conflicts created by 

an unsworn unauthenticated document. See United States v. Gunderman, 67 M.J. 

 

4

 Here, this is not merely a technicality as the CDC appears to dispute the accuracy 

of some of the words attributed to him in the R.C.M. 1105 matters – at least in part. 

The government submitted a sworn affidavit from the CDC. The CDC stated that the 

matter quoted in appellant’s brief was not a verbatim recitation of what he had said. 

That is, to some greater or lesser extent he appears to dispute the accuracy of the 

words attributed to him in the email or the MFR. 
TOVARCHAVEZ—ARMY 20150250 

6 

683 (Army Ct. Crim. App. 2009). However, for unrelated reasons discussed below, 

we remand this case for factfinding. Accordingly, while we have significant 

concerns that the parties view the record on appeal differently than we do, for 

reasons of judicial economy it is best to dispose of these concerns by wrapping them 

into a DuBay hearing where these issues can be addressed by the trial court. 

2. Was counsel ineffective for failing to cross-examine SPC JR on prior statements? 

Setting aside the issues raised by appellant in reliance on the unsworn 

matters, appellant also submitted a sworn personal affidavit. In the affidavit, 

appellant asserts he had three post-assault conversations with SPC JR in which she 

made exculpating statements. 

First, appellant asserts that the day after the offense of which he stands 

convicted he had a Facebook conversation with SPC JR. He asserts that in the 

conversation SPC JR affirmatively stated she was not upset by appellant’s conduct. 

Rather, she stated she was upset because she had cheated on her boyfriend. 

Appellant states he told his defense counsel about this conversation but his counsel 

“never sought a copy of this online conversation from me, from SPC JR, or from 

Facebook directly.” 

Appellant’s counsel responds that the conversation in question would have 

“corroborated [SPC JR’s] allegations of rape and would not have been prudent to 

introduce into the trial.” Although unstated directly, we infer from this statement 

that the CDC had discussed the Facebook exchange with appellant. However, and 

citing to his trial notes, the CDC averred that his pretrial discovery found that the 

Facebook conversation had been deleted. He also disagrees with the substance of 

the conversation and states that the panel would have inferred rape from SPC JR’s 

statement that she was upset. 

The affidavits both agree that appellant and his counsel discussed the 

Facebook conversation. The CDC also agrees with appellant’s assertions that he had 

not expected to cross-examine SPC JR on the first day of trial. The affidavits part 

ways on 1) whether the CDC attempted to get a copy of the Facebook conversation; 

2) whether the conversation was deleted; and 3) what was said in the Facebook 

conversation. 

We are not allowed to make credibility determinations on the basis of 

conflicting affidavits when resolving collateral claims of ineffective assistance of 

counsel. United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997). 

In Ginn, the CAAF outlined five principles to guide this court when to order a 

factfinding hearing. Id. at 248. Most on point is the first, which stated that “if the 

facts alleged in the affidavit allege an error that would not result in relief even if 
TOVARCHAVEZ—ARMY 20150250 

7 

any factual dispute were resolved in appellant’s favor, the claim may be rejected on 

that basis.” Id. 

Here, we cannot determine one way or the other whether, assuming 

appellant’s factual assertions are true, appellant received effective assistance of 

counsel. Accordingly, a factfinding hearing is necessary. To prevent extended 

appellate process, to ensure appellant’s claims of error are given adequate 

consideration, and for reasons of judicial economy, we direct a DuBay hearing to 

make appropriate factual and legal determinations on appellant’s claim of ineffective 

assistance of counsel generally. That is, while this one dispute regarding a 

Facebook conversation is what necessitates a factfinding hearing, the DuBay court 

may consider all the factual and legal bases for appellant’s claims of ineffective 

assistance of counsel. 

B. Mistake of Fact 

Appellant asked the panel for an instruction on the defense of mistake of fact. 

The military judge denied the request. Accordingly, any error is preserved for 

appeal. 

A military judge has an affirmative duty to instruct on special defenses 

reasonably raised by the evidence. R.C.M. 920(e)(3). “The test for determining 

whether an affirmative defense of mistake of fact has been raised is whether the 

record contains some evidence of an honest and reasonable mistake to which the 

members could have attached credit if they had so desired.” United States v. 

Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). Put differently, an instruction on a 

defense is not required if no reasonable panel member could find the defense 

applicable. United States v. Schumacher, 70 M.J. 387, 389-90 (C.A.A.F. 2011) 

(stating that the test is similar to the test for legal sufficiency). 

After making verbal and non-verbal rejections of appellant’s advances SPC JR 

testified to an aggressive struggle on her bed. As appellant tried to pull SPC JR’s 

sweat pants off, SPC JR pulled them back up. This continued for some time, until 

appellant overpowered SPC JR. He then assaulted her by putting his penis in her 

vagina. When done, appellant refused to get off SPC JR until she kissed him. 

Appellant did not testify. Accordingly, the only evidence regarding the 

assault came from SPC JR. There were no “mixed messages” from which a mistake 

of fact could occur. See United States v. DiPaola, 67 M.J. 98, 102 (C.A.A.F. 2008). 

There is no evidence to which the members could have attached credit that there was 

a reasonable mistake of fact as to consent. The assault described by SPC JR was, in 

every which way, objectively non-consensual. 
TOVARCHAVEZ—ARMY 20150250 

8 

Additionally, we find no evidence appellant honestly possessed an innocent 

state of mind. We recently addressed this issue in United States v. Kelly, where we 

said: 

An accused is not required to testify to establish a mistake 

of fact defense. United States v. Jones, 49 M.J. 85, 91 

(C.A.A.F. 1999). However, to warrant an instruction on 

the mistake of fact defense there must be “some evidence 

of an honest and reasonable mistake to which the members 

could have attached credit if they had so desired.” United 

States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). 

In other words, there is no per se requirement an accused 

testify to establish a mistake of fact defense, but evidence 

the accused honestly and reasonably believed the victim 

had consented must come from somewhere. In many 

cases, the only source of admissible evidence about the 

accused’s subjective belief the victim consented may well 

be from the accused himself. 

 M.J. , 2017 CCA LEXIS 453, at *30-31 (Army Ct. Crim. App. 5 Jul. 2017). 

To be clear, we agree with appellant that there need not be direct evidence of 

an honest belief. Just as the government often proves an accused’s intent to commit 

an offense by inference, the defense can establish some evidence of an honest 

mistake of fact to consent by inference. See Dep’t of Army, Pam 27-9, Legal 

Services: Military Judges’ Benchbook, para. 7-3, n. 2 (10 Sept. 2014). Here, 

appellant points us to numerous pre-assault interactions between SPC JR and 

appellant, to include the conduct that was charged, but of which appellant was 

acquitted. Looking at the evidence in a light most favorable to appellant, one could 

infer that on the day of the assault appellant went to SPC JR’s barracks room 

honestly believing they might engage in consensual intercourse. However, once in 

the room and being rebuffed both verbally and non-verbally, the reasonableness of 

the inference disappears. That is, as the evidence was that SPC JR manifestly 

rejected appellant’s advances, at the time of the offense there was no evidence that 

appellant honestly believed she was consenting or that such a belief would be 

reasonable. 

C. United States v. Hills 

The military judge gave the panel in this case an instruction that was for all 

substantive purposes identical to the instruction that the CAAF found to be error in 

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). However, although discussed 
TOVARCHAVEZ—ARMY 20150250 

9 

more than once, trial defense counsel offered no objection to the instruction and 

ultimately stated he had “no objection” to the instruction. 

We specified the issue of whether appellant forfeited or waived any objection 

to the instructions when he stated he had no objection to the instruction he now 

challenges on appeal. In United States v. Hoffman, we determined a statement of 

“no objection” to instructions that are challenged on appeal constitutes an 

affirmative waiver of the issue. M.J. , 2017 CCA LEXIS 425, at *15 (Army Ct. 

Crim. App. 27 Jun. 2017). We cited the Fourth Circuit in United States v. Smith, for 

the proposition that a statement of “no objection” is an “intentional relinquishment 

or abandonment of a known right.” No. 97-4904, 1998 U.S. App. LEXIS 22673, at 

*3-4 (4th Cir. Sep. 16, 1998). Citing almost every circuit court of appeals we stated 

that “[a]bsent evidence to the contrary, we presume that counsel are competent under 

Strickland v. Washington, 466 U.S. 668, 690 (1984), thus defense counsel stating 

that he or she has “no objection” is a purposeful decision.” Hoffman, M.J. , 

2017 CCA LEXIS 425, at *15. 

This case is perhaps distinguishable from Hoffman. Hoffman involved several 

additional opportunities for the accused to object to the errant instruction, to include 

written motions practice. Id. at *18-20. Our decision in Hoffman was conditioned 

on that being a case “where appellant ‘was fully aware of the [issue], and he had 

numerous opportunities to contest its admission and use.’” Id. (citing United States 

v. Swift, 76 M.J. 210, 217 (C.A.A.F. 2017)). 

However, we need not decide whether the issue was waived because even if 

the issue was not waived we still would not find plain error. Appellant has not met 

his burden of establishing material prejudice to a substantial right. United States v. 

Paige, 67 M.J. 442, 449 (C.A.A.F. 2009) (To establish plain error, appellant must 

show: (1) an error was committed; (2) the error was plain, or clear, or obvious; and 

(3) the error resulted in material prejudice to substantial rights). 

Appellant argues that because any error violated appellant’s presumption of 

innocence and right to be convicted only by proof beyond a reasonable doubt, the 

error materially prejudiced appellant’s substantial rights. The first two subparts of 

appellant’s brief on prejudice address the gravity of the error. 

In our view, this misunderstands our prejudice analysis. A prejudice analysis 

is separate from the finding of error. As the Supreme Court stated in Puckett v. 

United States: 

Any trial error can be said to impair substantial rights if 

the harm is defined as “being convicted at a trial tainted 

with [fill-in-the-blank] error.” Nor does the fact that there 

is a “protected liberty interest” at stake render this case 
TOVARCHAVEZ—ARMY 20150250 

10 

different. That interest is always at stake in criminal 

cases. Eliminating the third plain-error prong through 

semantics makes a nullity of Olano’s instruction that a 

defendant normally “must make a specific showing of 

prejudice” in order to obtain relief. 

556 U.S. 129, 142 (2009) (internal citations omitted, bracketed language in 

original). In other words, absent structural error, proof of error does not ipso facto

prove prejudice. If it did, our plain error test would be effectively reduced to only 

two prongs. If a Hills error were structural, we presume our superior court would 

have so stated, given the strong presumption against structural errors, and further 

would not have bothered to test for prejudice in that case, which it did. 75 M.J. at 

358.

Appellant also argues that this case was not strong. The evidence consisted of 

the credible testimony of SPC JR as well as post-assault apologies that the 

government successfully presented as evidence of consciousness of guilt. Appellant 

correctly notes the lack of corroborating physical or forensic evidence. 

Our understanding of the proper framework for determining prejudice for 

Hills violations continues to develop as we consider each new case. A candid 

review of our cases considering the matter shows a progression in our analyses as we 

consider the facts of each new case and absorb binding and persuasive authority 

from our superior and sister courts. See Hoffman, M.J. , 2017 CCA LEXIS 

425, at *12-13 (surveying recent decisions of Hills violations). For this panel, we 

have viewed the danger from an improper propensity instruction to be greatest when 

issues of propensity are clearly at play. 

In United States v. Guardado, we found a low likelihood of prejudice because 

the evidence that the accused had committed the other misconduct was not credible. 

75 M.J. 889 (Army Ct. Crim. App. 2016), pet. granted, 76 M.J. 166 (C.A.A.F. 2017). 

“The likelihood of prejudice from propensity evidence is greatest when the evidence 

is solid and credible. In other words, weak evidence offered to show propensity 

poses less danger of contributing to the verdict.” Id. at 898. 

Similarly in United States v. Moore, this panel was presented with a case in 

which there was substantial evidence as to one offense, but less convincing evidence 

as to the other offenses. ARMY 20140875, 2017 CCA LEXIS 191 (Army Ct. Crim. 

App. 23 Mar. 2017), pet. granted, 76 M.J. , 2017 CAAF LEXIS 630 (C.A.A.F. 22 

June 2017) (order). We assessed that such a situation created a danger that strong 

evidence of one offense may bleed over to prove the offenses for which the evidence 

was not so strong. Id. at *10-14. Accordingly, we set aside all but the one offense. 

Id.
TOVARCHAVEZ—ARMY 20150250 

11 

In United States v. Denson, we set aside all the subject offenses because of 

concerns about propensity. ARMY 20150137, 2017 CCA LEXIS 564 (Army Ct. Cr. 

App. 18 Aug. 2017). In that case, the government presented evidence that several 

charged victims were assaulted in a manner that was arguably similar. An improper 

propensity inference was a rational response to these facts. Id. at *3-5. In such a 

case, an instruction that tells a panel they may infer that which there may have been 

a natural instinct to do anyway compounds the danger of an improper instruction. 

Most importantly, however, our analysis of prejudice for Hills violations is 

framed by the appellate posture of the issue on appeal.5

 In cases of preserved error, 

the burden falls on the government and the burden is proof of harmlessness beyond a 

reasonable doubt. Hills, 75 M.J. at 357. In cases of unpreserved error, the burden is 

on appellant to show material prejudice to a substantial right. Hoffman, M.J. , 

2017 CCA LEXIS 425, at *30-31.

Here, we cannot find a specific showing of prejudice in a case where 

propensity was not argued or discussed. Indeed, the absence of an objection by the 

defense and argument by the trial counsel is indicative of the low impact of 

propensity at the trial. 

For the reasons stated in Hoffman we find appellant has met the first two 

prongs of a plain error analysis and has demonstrated that the Hills instruction in 

this case was obvious error. Id. at *26-30. We, however, do not find appellant has 

met his burden of establishing prejudice, and therefore do not find plain error. 

CONCLUSION 

In light of this court’s inability to resolve the conflicting affidavits presented 

on appeal, the record of trial is returned to The Judge Advocate General for such 

action as is required to conduct a DuBay hearing on whether trial defense counsel 

were ineffective in their representation of appellant at trial.

As noted in our discussion, although the need for a DuBay hearing primarily 

results from the conflicting affidavits of appellant and his civilian defense counsel 

regarding the Facebook conversation between SPC JR and appellant, the DuBay

military judge shall consider all of appellant’s claims of ineffective assistance of 

counsel. However, the military judge is required to consider only those claims of 

ineffective assistance of counsel that have already specifically been identified by 

appellant’s briefs, Grostefon materials, and sworn affidavit. The Clerk of Court is 

 

5

 In Guardado and Moore we treated the Hills issue as preserved based upon the 

government’s concession or the parties framing of the issue. Guardado, 75 M.J. at 

905; Moore, 2017 CCA LEXIS 191, at *6. 
TOVARCHAVEZ—ARMY 20150250 

12 

directed to provide a copy of these materials to the DuBay judge. The military judge 

at the hearing will make findings of fact and conclusions of law as appropriate. 

Upon conclusion of the DuBay hearing, the record will be returned to this 

court for further review. 

 Senior Judge MULLIGAN and Senior Judge CAMPANELLA concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: