UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, K.M. MCDONALD, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

DON W. BAILEY, JR.

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201200370

SPECIAL COURT-MARTIAL

Sentence Adjudged: 20 April 2012.

Military Judge: LtCol Robert G. Palmer, USMC.

Convening Authority: Commanding Officer, 4th Marine Corps 

District, New Cumberland, PA.

Staff Judge Advocate's Recommendation: Col E.R. Kleis, 

USMC.

For Appellant: LT Carrie E. Theis, JAGC, USN.

For Appellee: LT Ann E. Dingle, JAGC, USN.

16 September 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A military judge, sitting as a special court-martial, 

convicted the appellant, pursuant to his pleas, of two 

specifications of failure to obey a lawful general order, in 

violation of Article 92, Uniform Code of Military Justice, 10 

U.S.C. § 892. The military judge sentenced the appellant to 

confinement for four months, reduction to pay grade E-1, and a 
2

bad-conduct discharge. A pretrial agreement provided that all 

confinement in excess of thirty days would be suspended, but the 

convening authority (CA) vacated the suspension when the 

appellant violated a military protective order (MPO). As a 

result, the CA approved the sentence as adjudged and, except for 

the punitive discharge, ordered it executed.

This case is before us upon remand by the Court of Appeals 

for the Armed Forces (CAAF). We begin with a brief recitation 

of the case’s procedural posture. In his original appeal, the 

appellant assigned two errors: first, that his civilian counsel 

was ineffective for failing to submit clemency matters to the 

CA, and second, that the CA wrongfully withdrew from the 

pretrial agreement due to violation of an MPO that lacked a 

valid military purpose.1 In our initial decision, United States 

v. Bailey, No. 201200370, 2013 CCA LEXIS 76, unpublished op.

(N.M.Ct.Crim.App. 7 Feb 2013) (per curiam), we affirmed the 

findings and sentence as approved by the CA. The appellant then 

filed a motion for leave to file a supplemental assignment of 

error, which we denied on 28 February 2013. 

The appellant’s subsequent appeal resulted in the CAAF 

setting aside our earlier opinion and returning the case to the 

Judge Advocate General of the Navy for remand to this court for 

further consideration after the consideration of our review in 

United States v. Kish, No. 201100404, 2014 CCA LEXIS 358, 

unpublished op. (N.M.Ct.Crim.App. 17 Jun 2014), which is now 

completed. United States v. Bailey, 73 M.J. 54 (C.A.A.F. 2013)

(summary disposition). The appellant now raises an additional 

assignment of error: that he was deprived of his constitutional 

right to an impartial judge.

After carefully considering the record of trial and the 

submissions of the parties, we conclude that the findings and 

sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ. 

 

1 The second assignment of error was raised pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982).
3

Factual and Procedural Background

The appellant was serving as a recruiter when he became 

intimately involved with a high school student (the student) who 

was a prospective recruit applicant. He sent her sexually 

explicit text messages, exchanged sexually explicit photographs, 

visited her family home after-hours, and had sexual intercourse 

with her. The student was 17 years old during the first 

instance of sexual intercourse, and turned 18 a few days before 

her relationship with the appellant was discovered.

On 29 April 2011, the appellant signed a DD Form 2873, the 

MPO, which forbade him from initiating any communication with 

the student for a period of three years. The MPO was issued by 

the appellant's commanding officer.

In May 2012, after being released from confinement, the 

appellant sent a Facebook message2 to the student. The CA 

subsequently appointed an officer to inquire into whether by 

doing so the appellant violated the terms of the pretrial 

agreement. The appellant was represented by counsel at the 

hearing, who argued that the order lacked a valid military 

purpose because the appellant was no longer a recruiter and the 

student was no longer a minor or a prospective recruit 

applicant. The appointed officer concluded that the appellant 

violated the MPO and recommended that the CA withdraw from the 

pretrial agreement, which he did. The appellant requested that 

the CA order a post-trial Article 39(a), UCMJ, session and 

submitted a motion to the military judge who presided over his 

court-martial requesting a post-trial Article 39(a) session to 

address the legality of the MPO. Both the CA and military judge 

denied his request. The military judge also denied the 

appellant’s motion to seal portions of the record regarding the 

student’s sexual behavior. 

On 21 June 2012, the military judge presented a 

Professional Military Education (PME) lecture to five Marine law 

school students on active duty for the summer. During this 

training, the military judge made several statements drawing 

 

2 The order specifically named Facebook messaging as a prohibited form of 

communication.
4

into question his impartiality. These statements were the 

subject of a hearing pursuant to United States v. DuBay, 37 

C.M.R. 411 (C.M.A. 1967). During this court’s review of the 

Kish case following the DuBay hearing, we made detailed Findings 

of Fact and Conclusions of Law which we adopt in considering the 

appellant’s case. Kish, 2014 CCA LEXIS 358 at *15-39 

(hereinafter DuBay Ruling). Based on the context of these 

statements, this court concluded that the military judge “was 

voicing not his own biases or prejudices, but instead a mindset 

that he believes a junior counsel must adopt to be a tenacious 

and zealous advocate.” Id. at *38. This court further 

concluded that the military judge was not actually biased 

against accused service members within the meaning of RULE FOR 

COURTS-MARTIAL 902(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 

ed.). Id. 

Additional facts that concern the procedural posture of 

this case or are necessary to discuss the assignments of error 

are incorporated below.

Discussion

We review whether a military judge’s post-trial actions 

demonstrate actual or apparent bias de novo.

3 “‘An accused has 

the right to an impartial judge.’” United States v. Martinez, 

70 M.J. 154, 157 (C.A.A.F. 2011) (quoting United States v. 

Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001)). There is a “strong 

presumption that a [military] judge is impartial.” United 

States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001). While 

R.C.M. 902(b) lists various circumstances where actual bias may 

require disqualification, R.C.M. 902(a) states that a military 

judge shall “disqualify himself or herself in any proceeding in 

which that military judge’s impartiality might reasonably be 

questioned.” “The appearance standard is designed to enhance 

public confidence in the integrity of the judicial system.” 

 

3 The CAAF has applied this standard when facing questions that the appellant 

could not reasonably have raised at trial. See, e.g., United States v. Rose, 

71 M.J. 138, 143 (C.A.A.F. 2012) (reviewing de novo the deficient performance 

and prejudice aspects of an ineffective assistance of counsel claim); United 

States v. Stefan, 69 M.J. 256, 258 (C.A.A.F. 2010) (considering de novo the 

qualification of a staff judge advocate to make the post-trial 

recommendation).
5

Quintanilla, 56 M.J. at 45 (citing Liljeberg v. Health Service 

Acquisition Corp., 486 U.S. 847, 860 (1988)). 

The appellant alleges both actual and apparent bias. As 

this court has already held that the military judge’s PME 

statements do not support a determination of actual bias against 

service member defendants, DuBay Ruling at *38, we limit our 

review here to whether there was apparent bias concerning the 

appellant’s case. 

The test we apply is “whether, taken as a whole in the 

context of this trial, a court-martial’s legality, fairness, and 

impartiality were put into doubt by the military judge’s 

actions.” Martinez, 70 M.J. at 157 (citation and internal 

quotation marks omitted). This test may be met when there is 

“‘any conduct that would lead a reasonable man knowing all the 

circumstances to the conclusion that the judge’s impartiality 

might reasonably be questioned.’” Id. at 158-59 (quoting United 

States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982)). 

The appellant quotes the military judge’s PME statements, 

arguing that their close relationship in time to the appellant’s 

court-martial indicates an actual bias on the part of the 

military judge.4 Again, we limit our examination to whether this 

temporal relationship supports a finding of apparent bias. We 

find it does not. Absent any conduct during the court-martial 

that would lead a reasonable person to question whether the 

military judge’s PME comments were in fact reflective of a 

personal bias, any closeness in time is meaningless.

The appellant has cited no examples at his court-martial 

where the military judge acted improperly or in any way 

demonstrated a lack of impartiality. A thorough reading of the 

record reveals none. To the contrary, the military judge was 

particularly careful to avoid hearing or seeing any inadmissible 

evidence offered by the Government.5 Unlike in Kish, the 

military judge did nothing at trial to bring his impartiality 

 

4 The PME lecture occurred 72 days after the appellant’s court-martial. 

5 Examples include directing the trial counsel to “shut . . . down” a 

telephonic witness when she launched into a narrative on objectionable

matters, and questioning sua sponte the admissibility of several documents in 

Prosecution Exhibit 6. Record at 79 and 100-02. 
6

into question.6 Thus, in this case, the effect of the PME 

comments is not compounded with anything at trial to reach the 

level of undermining public confidence in the judicial system’s 

integrity. 

The appellant does cite to the punitive discharge as 

evidence of bias, saying it reflects the military judge’s need 

to “crush [convicted] Marines and get them out.” Appellant’s 

Brief of 3 Jul 2014 at 21-22. Unless the bad-conduct discharge 

is inappropriately severe, however, this argument is circular, 

in effect saying that the judge’s bias toward awarding a 

punitive discharge is evidenced by his awarding a punitive 

discharge. Based on our review of the record, including the 

appellant’s extenuation and mitigation evidence, and giving 

“‘individualized consideration’ of the particular accused ‘on 

the basis of the nature and seriousness of the offense and 

character of the offender,’” we do not find the sentence 

inappropriately severe. United States v. Snelling, 14 M.J. 267, 

268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 C.M.R. 

176, 180-81 (C.M.A. 1959)). We, therefore, do not conclude the 

bad-conduct discharge supports a finding of apparent bias.7

As we noted in Kish, the military judge’s statements during 

the PME lecture “reflect exceptionally poor judgment and invite 

questions regarding judicial temperament and professionalism.” 

DuBay Ruling at *38. An examination of the entire circumstances 

surrounding the PME lecture, however, places the statements 

properly in context. We are satisfied that any reasonable 

person knowing all the circumstances of the lecture, as well as 

the manner in which the military judge conducted the proceedings 

in this case, would not question the integrity of the judicial 

system. Unlike in Kish, there is no “nexus between the military 

judge’s conduct during [Kish’s} trial and his later comments” at 

the PME lecture. Kish, 2014 CCA LEXIS 358 at *13. Rather, the 

contrast between the military judge’s comments and his 

performance during the court-martial tends to underscore this 

court’s conclusion that he was speaking during the lecture in 

 

6 We also note that, unlike in Kish, the appellant here pleaded guilty. 

7 This conclusion is further supported by the military judge’s recommendation 

that the CA suspend the bad-conduct discharge. 
7

character, and not in his own voice. Accordingly, we find no 

apparent bias. 

Original Assignments of Error

Based upon our concluding there was no apparent bias, we 

find it unnecessary to revisit the military judge’s post-trial 

ruling regarding the lawfulness of the MPO. For the reasons set 

forth in our opinion of 7 February 2013, we find the remaining 

assignments of error without merit.

Conclusion

The findings and sentence as approved by the CA are 

affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court