UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39642

________________________

UNITED STATES

Appellee

v.

Kalab D. WILLMAN

Staff Sergeant (E-5), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 2 September 2020

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Military Judge: John C. Degnan.

Approved sentence: Dishonorable discharge, confinement for 1 year, and 

reduction to E-4. Sentence adjudged 6 November 2018 by GCM convened 

at Vandenberg Air Force Base, California.

For Appellant: Major Megan E. Hoffman, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant 

Colonel Brian C. Mason, USAF; Lieutenant Colonel G. Matt Osborn, 

USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military 

Judges.

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

RICHARDSON joined. Judge MEGINLEY filed a separate opinion concurring in part and in the result.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________

POSCH, Senior Judge:
United States v. Willman, No. ACM 39642

2

In accordance with Appellant’s unconditional guilty plea pursuant to a pretrial agreement (PTA), a general court-martial composed of a military judge 

sitting alone found Appellant guilty of one charge and specification of indecent 

recording of the private area of BM on divers occasions in violation of Article 

120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920c.1 The military judge sentenced Appellant to a dishonorable discharge, confinement for 

one year, and reduction to the grade of E-4. At action, the convening authority 

approved the adjudged sentence. In accordance with the terms of the PTA and 

Article 58b, UCMJ, 10 U.S.C. § 858b, the convening authority also waived 

mandatory forfeitures of Appellant’s pay and allowances for a period of six 

months, or upon his release from confinement, whichever was sooner, with the 

waiver commencing on 8 November 2018, for the benefit of Appellant’s dependent daughter.2

Appellant raises two issues pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982): (1) whether Appellant is entitled to relief because he was 

compelled to give testimonial information after invoking his right to an attorney and refusing to answer questions; and (2) whether Appellant suffered cruel 

and unusual punishment in violation of the Eighth Amendment3 and Article 

55, UCMJ, 10 U.S.C. § 855, when he was not given proper medical treatment 

while in confinement. Alternatively, Appellant contends that the conditions of 

his post-trial confinement render his sentence inappropriately severe, warranting relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c).4

 

1 All references in this opinion to the Uniform Code of Military Justice, Rules for 

Courts-Martial (R.C.M.), and Military Rules of Evidence are to the Manual for CourtsMartial, United States (2016 ed.).

2 The PTA placed no limitation on the sentence the convening authority could approve. 

Among the Government’s PTA concessions, the convening authority agreed to dismiss 

with prejudice a charge and its specifications that alleged Appellant possessed and 

viewed child pornography.

3 U.S. CONST. amend. VIII.

4 In addition to these issues, we note the action waived mandatory forfeitures and directed Appellant’s pay and allowances “to be paid to AW, spouse of [Appellant], for the 

benefit of [Appellant’s] dependent daughter.” Based on the record before us, AW is 

Appellant’s dependent daughter and not his spouse; and this error is repeated in the 

court-martial order (CMO). Although Appellant is silent about the error in the action, 

he asserts the CMO error “did not prejudice Appellant or the relief ordered by the 

Convening Authority,” and “Appellant does not raise it as an error here.” We find no 

prejudice to Appellant by the error in either the action or the CMO, and conclude that 

instructing the convening authority to withdraw the action and substitute a corrected 

action, see R.C.M. 1107(g), is not warranted.
United States v. Willman, No. ACM 39642

3

Finding no error materially prejudicial to the substantial rights of Appellant, we affirm.

I. BACKGROUND

Appellant’s conviction is founded on his plea of guilty to making recordings

of the private area of BM, a sixteen-year-old female, without legal justification 

or authorization. Appellant met BM in an Internet chat forum and began communicating with her in private through texts and online video chat sessions. 

In time, their conversations became sexual and they showed each other their 

bodies and masturbated during some of these sessions. On 14 occasions, Appellant used his personal laptop computer to record BM engaging in sexually 

explicit conduct, including masturbating and lasciviously exhibiting her genitals and pubic area to Appellant. BM did not consent to Appellant making recordings of her during these sessions and was unaware she was being recorded.

Appellant’s conduct came to the attention of military authorities at Vandenberg Air Force Base (AFB) after BM’s mother learned that Appellant sent 

her daughter a picture of himself with his shirt pulled up to reveal his stomach. 

BM’s mother filed a police report and the matter was ultimately referred to 

agents of the Air Force Office of Special Investigations (AFOSI) at Vandenberg 

AFB. At the time she reported Appellant’s conduct, BM’s mother was not fully 

aware of details of Appellant’s online relationship with her daughter and the 

extent of their sexual communications.

AFOSI agents opened an investigation and, on 7 November 2016, took Appellant into custody. Before questioning Appellant about his relationship with 

BM, an agent advised Appellant of his rights, including the right to have counsel present at the interview. See Article 31, UCMJ, 10 U.S.C. § 831; Mil. R. 

Evid. 305. Following the rights advisement, Appellant declined to answer questions and requested legal counsel. 

The same day Appellant was questioned, AFOSI agents conducted a search

of Appellant’s home and seized multiple electronic devices. The AFOSI agents

presented Appellant with a search authorization and a written order dated 7 

November 2016 and signed by the military magistrate. The written order directed Appellant “to unlock any and all electronic devices seized pursuant to 

the search and seizure authorization. This include[d] any fingerprint, password, pin number, or other forms of security systems for the electronic devices.”

The military magistrate also ordered Appellant “to disable all security and/or 

lock settings for any and all electronic devices seized pursuant to this search 

and seizure authorization.” According to the AFOSI report of investigation, 

when presented with the search authorization and the written order, Appellant 

unlocked his phone and disabled the security settings.
United States v. Willman, No. ACM 39642

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Later in their investigation, the AFOSI agents presented Appellant with 

an additional written order to unlock his other electronic devices. This order 

was from the alternate military magistrate at Vandenberg AFB. Appellant refused to comply with the order and was issued a letter of reprimand (LOR) by 

his commander, Colonel KB, for disobeying the direct orders given to him by 

the military magistrates.5

A week after AFOSI agents seized Appellant’s electronic devices, a preliminary search of Appellant’s cell phone revealed it did not have the applications 

that Appellant and BM used to meet and communicate over the Internet. Those 

applications were discovered in software that was installed on Appellant’s personal laptop computer. The AFOSI agents’ initial review of Appellant’s phone

also turned up no contraband; however, the AFOSI agents found a picture of 

Appellant with his shirt pulled up and displaying his abdomen. The AFOSI 

report of investigation suggests that this picture corroborated BM’s account of 

receiving a picture from Appellant that showed his stomach. Analysis of Appellant’s laptop uncovered evidence of Appellant’s communications with BM,

including videos Appellant recorded of BM and the software Appellant used to 

record their online sessions.

II. DISCUSSION

A. Appellant’s Right against Self-Incrimination

Appellant contends he is entitled to relief because he was compelled to give 

testimonial information when AFOSI agents unlawfully ordered him to unlock 

his electronic devices after he invoked his right to an attorney and refused to 

answer questions. In reference to the LOR he received from his commander, 

Appellant claims he is entitled to relief for the almost two years of stress he 

experienced having to report for duty knowing that his commander was upset 

with him for disobeying the unlawful orders that were given to him by the military magistrates. Appellant contends that the only meaningful relief this 

 

5 Inexplicably, the letter of reprimand (LOR) that is attached to the AFOSI report of 

investigation censures Appellant for disobeying an order from the primary military 

magistrate on 7 November 2016, even though the AFOSI report indicates that Appellant complied with the order. Also according to the AFOSI report, Appellant was given 

two additional written orders to unlock his electronic devices, on 5 January 2017 and 

19 January 2017, which he failed to obey, but neither incident is referenced in the LOR 

and the orders are not included in the record. The report indicates that Appellant refused to comply with these orders on the advice of an area defense counsel. Nonetheless, the failure of the record to explain the facts underlying the LOR that Appellant 

received is not dispositive to our decision.
United States v. Willman, No. ACM 39642

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court can grant is to set aside his conviction because he has already served his 

sentence and is out of confinement.

1. Additional Background

As part of his obligation under the PTA, Appellant agreed to “[w]aive all 

waivable motions.” The military judge conducted an extensive inquiry with Appellant to ensure Appellant understood the meaning and effect of this condition. At one point, the military judge explained:

[Y]our [PTA] states that you waive or give up the right to make 

waivable motions. I advise you that certain motions are waived 

or given up if your defense counsel does not make the motion 

prior to entering your plea. Additionally, other motions, even if 

not waived by guilty plea, are nonetheless waived if not brought 

up during the trial. Some motions, however, such as motions to 

dismiss for lack of jurisdiction, for example, can never be given 

up. Do you understand that this term of your [PTA] means that 

you give up the right to make any motion, which by law is given 

up when you plead guilty?

Appellant replied, “Yes, sir.”

The military judge then asked Appellant, “Do you understand that this 

term of your [PTA] means you give up the right to make any motion if it is not 

raised during the trial?” Appellant responded, “Yes, Your Honor.” Appellant 

acknowledged that no one forced him to agree to this term, and that even 

though the term originated with the Government, Appellant acknowledged he 

freely and voluntarily agreed to the term in order to receive the benefit of the 

PTA.

Appellant entered an unconditional plea of guilty to knowingly and wrongfully making a recording of the private area of BM without her consent on divers occasions. During the guilty plea inquiry with the military judge, Appellant explained that he “recorded approximately 14 videos” of BM’s private area 

“using software installed on [his] laptop.” Appellant explained that he and BM 

would have online “video chat sessions” and that he recorded the videos on his 

laptop. At one point, the military judge asked Appellant what electronic device

Appellant used to communicate with BM. Appellant replied, “Via my laptop, 

sir.” Appellant would later agree that the 14 video recordings at issue were 

found on his laptop computer.

2. Law

It is well-settled law that an unconditional guilty plea generally waives any 

objection related to the factual question of guilt. Rule for Courts-Martial 

(R.C.M.) 910(j); see also United States v. Mooney, 77 M.J. 252, 254 (C.A.A.F. 
United States v. Willman, No. ACM 39642

6

2018). “Objections that do not relate to factual issues of guilt are not covered 

by this bright-line rule, but the general principle still applies: [a]n unconditional guilty plea generally ‘waives all defects which are neither jurisdictional 

nor a deprivation of due process of law.’” United States v. Schweitzer, 68 M.J. 

133, 136 (C.A.A.F. 2009) (quoting United States v. Rehorn, 26 C.M.R. 267, 268–

69 (C.M.A. 1958)). The United States Court of Appeals for the Armed Forces 

(CAAF) has observed, “[w]hile the waiver doctrine is not without limits, those 

limits are narrow and relate to situations in which, on its face, the prosecution 

may not constitutionally be maintained.” United States v. Bradley, 68 M.J. 279, 

282 (C.A.A.F. 2010) (citations omitted).

Consequently, an appellant who has entered an unconditional guilty plea 

ordinarily may not raise on appeal an error previously waived at trial. United 

States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016) (citing United States v. Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009); United States v. Gladue, 67 M.J. 311, 

313 (C.A.A.F. 2009)). However, this “ordinary” rule does not apply to statutory 

review by a military court of criminal appeals (CCA) under Article 66(c), 

UCMJ. Id. “Article 66(c) empowers CCAs to consider claims . . . even when 

those claims have been waived.” Id. (quoting United States v. Chin, No. ACM 

38452, 2015 CCA LEXIS 241, at *9–11 (A.F. Ct. Crim. App. 12 Jun. 2015) (unpub. op.), aff’d, 75 M.J. 220 (C.A.A.F. 2016)). This is because CCAs maintain 

an “affirmative obligation to ensure that the findings and sentence in each such 

case are ‘correct in law and fact . . . and should be approved.’” Id. at 223 (quoting United States v. Miller, 62 M.J. 471, 472 (C.A.A.F. 2006) (alteration in original)).

“If an appellant elects to proceed with Article 66, UCMJ, review . . . . the 

CCAs are required to assess the entire record to determine whether to leave 

an accused’s waiver intact, or to correct the error.” Id. (citation omitted). This 

requirement does not mean an unconditional guilty plea is without meaning or 

effect. Id. “Waiver at the trial level continues to preclude an appellant from 

raising the issue” on appeal, id. (citing Gladue, 67 M.J. at 313–14), and an 

“unconditional guilty plea continues to serve as a factor for a CCA to weigh in 

determining whether to nonetheless disapprove a finding or sentence.” Id.

3. Analysis

At the time Appellant was ordered to unlock his electronic devices, the 

CAAF had not decided United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017); 

however, Mitchell was decided before Appellant was arraigned and is factually 

similar to the conduct of the AFOSI agents after Appellant invoked his right 

to counsel. In Mitchell, the appellant’s phone had been seized in accordance 

with a valid search authorization. Id. at 416. However, after being advised of 

his rights under custodial interrogation, the appellant invoked his right to 

counsel. Id. Law enforcement officials then asked the appellant to input the 
United States v. Willman, No. ACM 39642

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passcode to unlock his phone, and the appellant complied. Id. The CAAF concluded that the Government violated the appellant’s Fifth Amendment6 right 

to counsel as protected by Edwards v. Arizona, 451 U.S. 477 (1981), when he 

was asked to enter his phone’s passcode in the absence of counsel. Mitchell, 76 

M.J. at 415.

Appellant contends that because an AFOSI agent unlawfully made Appellant unlock his phone, the AFOSI agents should never have been allowed to 

use the evidence on his phone to build the case against him. Although AFOSI 

agents did not find contraband on Appellant’s phone, they did discover a picture of him with his shirt raised. Appellant claims AFOSI agents used this 

photograph to corroborate information they obtained from BM and, consequently, the AFOSI’s investigation materially benefited from the illegal search 

of Appellant’s phone.

Even if we assume Appellant’s claim of error reaches his laptop computer 

where the 14 charged images were found, we nonetheless decline to grant relief. By his unconditional plea of guilty, Appellant waived the issues of the invocation of the right to counsel and the lawfulness of the orders to unlock his 

phone and other devices and to disable their security settings. R.C.M. 910(j). 

Appellant acknowledged on the record that he was not forced to agree to that 

term of the PTA, and this court finds no reason to question Appellant’s voluntary waiver. Furthermore, the Government did not offer the LOR that Colonel 

KB served on Appellant as evidence at the sentencing hearing as part of the 

personnel records of the accused. See R.C.M. 1001(b)(2). Thus, we find Appellant was not prejudiced by any error or action by a Government official.7

Further, we conclude Appellant’s claims are neither jurisdictional nor was

Appellant denied the due process of law, and thus are waived insofar as our 

consideration of the factual question of his guilt on appeal. See R.C.M. 910(j); 

Schweitzer, 68 M.J. at 136. We have determined to leave Appellant’s waiver 

intact. See Chin, 75 M.J. at 222.

B. Conditions of Post-Trial Confinement

For the first time on appeal, Appellant urges this court to find he was subjected to impermissible confinement conditions in violation of Article 55, 

UCMJ, and the Eighth Amendment. Appellant also contends the conditions 

 

6 U.S. CONST. amend. V.

7 Based on our review of the record, we need not decide the prejudicial impact of Colonel 

KB’s 11 January 2017 reprimand of Appellant for disobeying orders to unlock his devices after Appellant asked for legal counsel, particularly the portion that reads, 

“[m]ake no mistake, these were lawful orders from properly appointed military magistrates . . . .”
United States v. Willman, No. ACM 39642

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warrant sentencing relief under this court’s Article 66(c), UCMJ, authority to 

approve only so much of a sentence that, based on the entire record, should be 

approved. We are not persuaded.

1. Additional Background

After the conclusion of Appellant’s sentencing hearing on 6 November 2018, 

Appellant waived his right to submit matters in clemency on 27 February 2019, 

and the convening authority took action the next day. In his appeal, Appellant 

submitted a sworn declaration and asked this court to reduce his sentence because he did not receive proper medical treatment for an injury that occurred 

in December 2018 when he was confined at the Naval Consolidated Brig in 

Charleston, South Carolina. Appellant did not raise a claim of improper medical treatment to the convening authority when he waived clemency.

Appellant explains in his declaration that near the end of December, another inmate stepped on his foot during a game of flag football, causing significant bruising to his large toe and toenail. Over the next two to three weeks his

toenail swelled and became painful. It discharged pus and became detached 

from the nail bed. On 14 January 2019, Appellant reported to sick call for a 

medical evaluation. A medical staff member concluded that no action was 

needed. Appellant requested the nail be removed and that the issue be raised 

to a supervisor. The supervisor refused to remove the nail, applied an antiseptic, and gave Appellant instructions to return to sick call should the issue 

worsen. Later that evening, the nail completely detached from the nail bed 

when Appellant removed his boots and socks.

Approximately three weeks later, Appellant returned to sick call to have 

his condition reevaluated because the nail was regrowing over the exposed nail 

bed in an unusual manner and with significant discoloration, and caused pain

when Appellant donned his socks and boots each morning. Appellant was again 

told by medical personnel that no action was needed and to return to sick call 

if additional symptoms or issues developed. In his 3 September 2019 declaration to this court, Appellant states that in the months since the onset of the 

issue, he is unable to put on socks and shoes without “slow and methodical 

effort.” His nail has yet to regenerate fully and it remains an unusual color and 

form.

In response to Appellant’s sworn statement, the Government provided a 

sworn declaration from a legal officer at the Naval Consolidated Brig. The declaration states that Appellant served a period of confinement at the facility 

from 28 November 2018 until 11 August 2019, and he sustained an injury to 

his toe during a recreational activity. After a medical evaluation, a member of 

the medical staff determined the best course of action was to let the nail remain 

intact until it fell off spontaneously because removing the nail would have left 
United States v. Willman, No. ACM 39642

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Appellant’s toenail matrix exposed, which could increase the chances of an injury or infection. An antiseptic solution was administered “to decrease the 

amount of surface pathogens to help prevent further infection.” Appellant was 

advised he could cover the area with a plastic bandage to prevent the nail from 

catching on his socks. The medical staff member concluded there was no mandate to remove Appellant’s toenail. The declaration explained that in the opinion of the medical staff member, toenails can grow back abnormally or discolored after a traumatic event to the nail bed and it may take months or years 

for the nail to fully grow. Lastly, the declaration asserted that a review of Appellant’s prisoner record did not contain any requests for redress or grievances.

2. Law

“Both the Eighth Amendment and Article 55, UCMJ, prohibit cruel and 

unusual punishment. In general, we apply the Supreme Court’s interpretation 

of the Eighth Amendment to claims raised under Article 55, UCMJ, except 

where legislative intent to provide greater protections under Article 55, UCMJ, 

is apparent.” United States v. Gay, 74 M.J. 736, 740 (A.F. Ct. Crim. App. 2015)

(citing United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000)), aff’d, 75 M.J. 

264 (C.A.A.F. 2016).

“[T]he Eighth Amendment prohibits two types of punishments: (1) those 

‘incompatible with the evolving standards of decency that mark the progress 

of a maturing society’ or (2) those ‘which involve the unnecessary and wanton 

infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) 

(quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). A violation of the 

Eighth Amendment is shown by demonstrating:

(1) an objectively, sufficiently serious act or omission resulting 

in the denial of necessities; (2) a culpable state of mind on the 

part of prison officials amounting to deliberate indifference to 

[appellant]’s health and safety; and (3) that [appellant] “has exhausted the prisoner-grievance system . . . and that he has petitioned for relief under Article 138, UCMJ, 10 U.S.C. § 938

[2000].”

Id. (third and fourth alterations in original) (footnotes omitted) (quoting United 

States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)).

The CAAF has emphasized that “[a] prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding posttrial confinement conditions.” United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 

2007) (citing United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001)). “This 

requirement ‘promot[es] resolution of grievances at the lowest possible level 

[and ensures] that an adequate record has been developed [to aid appellate 

review].’” Id. at 471 (alterations in original) (quoting Miller, 46 M.J. at 250). 
United States v. Willman, No. ACM 39642

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Except under some unusual or egregious circumstance, an appellant must 

demonstrate he or she has exhausted the prisoner grievance process provided 

by the confinement facility and has petitioned for relief under Article 138, 

UCMJ, 10 U.S.C. § 938. White, 54 M.J. at 472 (citation omitted).

Under Article 66(c), UCMJ, we have broad authority and the mandate to 

approve only so much of the sentence as we find “correct in law and fact and 

determine, on the basis of the entire record, should be approved.” See also 

United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002) (observing that the 

“legislative history of Article 66 reflects congressional intent to vest broad 

power in the Courts of Criminal Appeals”). The scope of our Article 66(c), 

UCMJ, authority to consider claims of post-trial confinement conditions “is 

limited to consideration of these claims as part of our determination of sentence appropriateness.” United States v. Towns, 52 M.J. 830, 833 (A.F. Ct. 

Crim. App. 2000) (citation omitted), aff’d, 55 M.J. 361 (C.A.A.F. 2001). “It is 

also limited to claims based on post-trial treatment that occurs prior to the 

action of the convening authority and which is documented in the record of 

trial.” Id. (citing Article 66(c), UCMJ). 

3. Analysis

a. Article 55, UCMJ, and the Eighth Amendment

We conclude that even if the facts, as asserted by Appellant in his declaration, are true, Appellant has not met his burden to establish prison officials 

failed to administer proper medical treatment, and, thus, grounds for relief.8

Article 55, UCMJ, prohibits infliction of “[p]unishment by flogging, or by 

branding, marking, or tattooing on the body, or any other cruel or unusual 

punishment.” The Eighth Amendment prohibits “deliberate indifference to serious medical needs of prisoners,” whether manifested by prison guards “intentionally denying or delaying access to medical care or intentionally interfering 

with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104–05 

(1976) (citation omitted). However, “[m]edical malpractice does not become a 

constitutional violation merely because the victim is a prisoner. In order to 

state a cognizable claim, a prisoner must allege acts or omissions sufficiently 

harmful to evidence deliberate indifference to serious medical needs.” Id. at 

106. “Deliberate indifference” requires that the responsible official must be 

aware of an excessive risk to an inmate’s health or safety and disregard that 

 

8 Having applied the decisional framework announced in United States v. Ginn, 47 M.J. 

236, 248 (C.A.A.F. 1997), for evaluating conditions of post-trial confinement, and considered the entire record, we find we can resolve the issues raised by Appellant without 

additional factfinding. See United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F. 2004).
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risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious 

harm.” Id. at 842 (citation omitted). However, “prison officials who [lack]

knowledge of a risk cannot be said to have inflicted punishment.” Id. at 844.

Apart from Appellant’s factual declaration, we find no basis for the assertions made by Appellant’s counsel on behalf of Appellant that (1) Appellant’s

“serious and potentially disabling medical issue—an infected toe—was 

brushed aside by brig medical personnel and not taken seriously;” (2) “[t]he 

brig sick bay officials’ lack of concern led to a long-term infection and permanent damage to the digit that continues to this day;” and that (3) “[t]here is no 

explanation for the conditions under which Appellant was kept except that the 

confinement facility officials deliberately and willfully disregarded Appellant’s 

well-being.” The most Appellant shows from the post-trial declarations is that 

the treatment of his injured toe was aimed at preventing infection. Appellant 

has not shown that either alternative or additional medical interventions 

would have restored his health to the same condition before the injury happened.

In the present case, the information provided by Appellant in his appeal 

lacks evidence that prison officials were aware of a substantial risk of serious 

harm to Appellant’s health or safety and disregarded that risk. We find that 

Appellant has not presented evidence to establish wrongful intent, namely, 

that any official failed to properly administer treatment for the purpose of increasing Appellant’s suffering or the severity of his sentence. Appellant has not 

shown conduct of prison officials that rises to the level of “deliberate indifference to serious medical needs of prisoners” proscribed by the Eighth Amendment whether manifested by prison guards “intentionally denying or delaying 

access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104–05. Moreover, a review of Appellant’s case 

does not reveal any information to suggest that Appellant attempted to use a

grievance process to address his complaint. See Wise, 64 M.J. at 469; White, 54

M.J. at 471.

We find Appellant’s post-trial claims do not demonstrate circumstances 

warranting relief under Article 55, UCMJ, or the Eighth Amendment. Even if 

the facts as asserted by Appellant are true, there is insufficient evidence to 

objectively conclude that a sufficiently serious act or omission occurred which 

resulted in the denial of necessities. See Lovett, 63 M.J. at 215. The information

falls far short of wrongful intent, namely, a culpable state of mind of an identifiable official which constituted deliberate indifference to Appellant’s health 

and safety. See id. Finally, the record does not provide evidence that Appellant

attempted to use a grievance process to address complaints of mistreatment.
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See id. Accordingly, Appellant does not warrant relief under Article 55 or the 

Eighth Amendment and we conclude his sentence is correct in law.

b. Appropriateness of Sentence

Having resolved Appellant’s Article 55 and Eighth Amendment claims, we 

next consider if our review of whether Appellant’s sentence should be approved

“on the basis of the entire record,” Article 66(c), UCMJ, permits or precludes 

our consideration of the post-trial confinement conditions Appellant presents

for the first time on appeal. We conclude Article 66(c) limits our review of the 

appropriateness of the sentence to the record and thus precludes consideration 

of Appellant’s statements of fact about those conditions.

In United States v. Jessie, the CAAF observed that some of the court’s precedents hold that CCAs “may consider only what is in the record” when reviewing a sentence under Article 66(c). 79 M.J 437, 440 (C.A.A.F. 2020) (citation 

omitted). The CAAF noted that the leading case for these precedents is United 

States v. Fagnan, 30 C.M.R. 192 (C.M.A. 1961), in which the appellant asked 

the Army Board of Review to reject his punitive discharge based on a favorable 

psychiatric assessment and a favorable report regarding his conduct while in

confinement. Jessie, 79 M.J. at 441 (citing Fagnan, 30 C.M.R. at 193). The 

Board of Review declined to consider these documents, explaining that because 

the submission “concerns matters which occurred months after the convening 

authority acted upon the sentence and forwarded the record of trial, it is not a 

part of the record subject to review under Article 66.” Id. (quoting Fagnan, 30 

C.M.R. at 193). The United States Court of Military Appeals, the predecessor 

to the CAAF, affirmed, holding that under Article 66(c), UCMJ, “the board of

review is expressly restricted by Congress to the ‘entire record’ in assessing the

appropriateness of the sentence.” Id. (quoting Fagnan, 30 C.M.R. at 194). The 

Jessie court reiterated the reasoning in Fagnan that “if military justice proceedings are to be ‘truly judicial in nature,’ then the appellate courts cannot 

‘consider information relating to the appropriateness of sentences when it has

theretofore formed no part of the record.’” Id. (quoting Fagnan, 30 C.M.R. at 

195).

In Jessie, our superior court concluded that “Fagnan established a clear 

rule that the CCAs may not consider anything outside of the ‘entire record’ 

when reviewing a sentence under Article 66(c), UCMJ.” Id. (citation omitted).

Specifically in regard to conditions of post-trial confinement, “[t]he rule in 

Fagnan does not preclude the CCAs from considering prison conditions when 

reviewing a sentence under Article 66(c), UCMJ, if the record contains information about those conditions.” Id. at 441–42 (emphasis added); see also id. at 

444 n.10 (“Because both the sentence appropriateness and correctness in law 

determinations require a decision based upon the ‘entire record,’ we need not 
United States v. Willman, No. ACM 39642

13

determine whether posttrial confinement conditions fall under one or both provisions.”).

Here, the “entire record”9 contains no information about the conditions of 

Appellant’s post-trial confinement. Although we exercised our authority to consider outside-the-record matters to determine if Appellant’s sentence is correct 

in law under Article 55, UCMJ, and the Eighth Amendment, see United States 

v. Erby, 54 M.J. 476, 478 (C.A.A.F. 2001), we are precluded from considering 

Appellant’s statement of facts about these conditions to determine if his sentence is appropriate and “should be approved” as part of our Article 66(c) review. Jessie, 79 M.J. at 441. In United States v. Gay, the CAAF affirmed a 

decision of this court that reduced an appellant’s sentence under Article 66(c) 

because prison officials, without justification, had made him serve part of his

sentence in maximum security solitary confinement. 75 M.J. 264, 266 (C.A.A.F. 

2016). However, information about these conditions was part of the record of 

trial because the appellant had requested additional confinement credit when 

he complained about the conditions to the convening authority. Id. at 265–66. 

Unlike Gay, neither the record of trial nor the matters attached to Appellant’s 

record of trial mentions the conditions Appellant raises for the first time after 

the convening authority took action in Appellant’s case.

It may seem incongruous to consider outside-the-record matters to evaluate

Appellant’s Article 55 and Eighth Amendment claims, and then not consider 

those matters in this court’s sentence appropriateness review under Article 

66(c). Nonetheless, our superior court has declined to further erode precedents 

like Fagnan, noting, “[w]e see nothing in the statutory text [of Article 66(c)] 

requiring special treatment for all appeals raising statutory or constitutional 

claims.” Jessie, 79 M.J. at 444. The CAAF further rejected the contention “that 

appellants should have the right to supplement the record whenever they raise 

claims of constitutional or statutory violations.”10 Id. at 443.

We depart from our esteemed colleague concurring in the result in regard 

to the position that was taken by Chief Judge Johnson in United States v. Matthews, No. ACM 39593, 2020 CCA LEXIS 193 (A.F. Ct. Crim. App. 2 Jun. 2020) 

 

9 See R.C.M. 1103(b)(2) (contents of the record) and R.C.M. 1103(b)(3) (matters attached to the record). In addition, the “entire record” includes briefs and arguments 

that appellate counsel and an appellant personally present regarding matters that are 

already in the record of trial, R.C.M. 1103(b)(2), or have been attached to the record of 

trial under R.C.M. 1103(b)(3). See Jessie, 79 M.J. at 440–41 (citing United States v. 

Healy, 26 M.J. 394, 396 (C.M.A. 1988)).

10 “The ‘entire record’ restriction . . . applies equally whether the CCA is reviewing a 

sentence’s correctness in law, reviewing a sentence’s correctness in fact, or determining 

whether a sentence should be approved.” Jessie, 79 M.J. at 444 (footnote omitted).
United States v. Willman, No. ACM 39642

14

(unpub. op.) (J. Johnson, C.J., concurring in the result). Like this case, the 

Matthews appellant raised his Article 55, UCMJ, and Eighth Amendment 

claims for the first time on appeal and based them on material outside the 

original record of trial. Matthews, unpub. op. at *12. Chief Judge Johnson 

simply concluded that the question of this court’s authority to grant sentence 

appropriateness relief under Article 66(c), UCMJ, for claimed violations of Article 55, UCMJ, and the Eighth Amendment was not before the CAAF in Jessie, 

and thus “the CAAF’s position on this point is undecided and unclear.” Matthews, unpub. op. at *16–17 (J. Johnson, C.J., concurring in the result). In our

view, the CAAF’s majority opinion was resolute and clear.

Following the court’s Article 66(c) mandate to approve only so much of a

sentence that, based on “the entire record, should be approved,” we conclude 

the record contains no support to grant sentencing relief on the basis of Appellant’s claims about the conditions of post-trial confinement.

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 the sentence are AFFIRMED.11

MEGINLEY, Judge (concurring in the result):

I agree with the majority in that Appellant is not entitled to relief for cruel 

or unusual conditions of post-trial confinement in violation of the Eighth 

Amendment1 or Article 55, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 855. Nor do I believe the conditions Appellant describes render his 

sentence inappropriately severe, warranting relief under Article 66(c), UCMJ, 

10 U.S.C. § 866(c).

However, I disagree with the premise that we are precluded from considering the appropriateness of Appellant’s sentence pursuant to Article 66, UCMJ, 

10 U.S.C. § 866, in a case such as this where Appellant raises his Eighth 

Amendment and Article 55, UCMJ, claims for the first time on appeal, and

supports his claim with material that is outside of the original record of trial.

I agree with the observations made by Chief Judge Johnson in his concurring 

 

11 Although not raised by the parties, we note an error in the CMO where the charged 

article is incorrectly identified as Article “120” rather than “120c.” We direct the publication of a corrected CMO to remedy this error. 

1 U.S. CONST. amend. VIII.
United States v. Willman, No. ACM 39642

15

opinion in United States v. Matthews, No. ACM 39593, 2020 CCA LEXIS 193 

(A.F. Ct. Crim. App. 2 Jun. 2020) (unpub. op.), in his assessment of our superior 

court’s recent decision in United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020):

Article 66, UCMJ, is the fundamental source of this court’s authority to review any issue, to include alleged violations of the 

Eighth Amendment and Article 55, UCMJ. It does seem incongruous (to borrow the majority’s term) to find that, under Jessie, 

we have jurisdiction to review alleged violations of the Eighth 

Amendment and Article 55, UCMJ, based on material outside 

the original record of trial, but to find we lack jurisdiction to consider such materials for the purpose of “affirm[ing] only such 

findings of guilty and the sentence . . . as [we] find correct in law 

and fact and determine, on the basis of the entire record, should 

be approved”—which is our fundamental charge and mandate in 

accordance with the text of Article 66 itself. See United States v. 

Gay, 75 M.J. 264, 268 (C.A.A.F. 2016). 

Matthews, unpub. op. at *17–18 (J. Johnson, C.J., concurring in the result).

I am troubled by the precedent that will be set if a hard-line rule is established that Courts of Criminal Appeals cannot consider anything outside of the 

record for post-trial issues unless an Eighth Amendment or Article 55 issue is 

raised. Since United States v. Fagnan, 30 C.M.R. 192 (C.M.A. 1961), was decided, prison and confinement systems have greatly evolved, post-trial processing has undergone a massive transformation, and most importantly, appellants have changed. The Department of Defense is coming to terms with the 

racial and gender disparity issues that have existed in our military justice system for quite some time. We have also learned to recognize the need to make 

accommodations in our confinement systems for certain segments of our military population which may have been marginalized or ignored, such as those 

who may identify as gay, lesbian, or transgender.

How these evolving issues will play out in post-punishment context is unknown. Yet, the time to include post-trial matters in the record is nearly irrelevant; gone are the days when an appellant could be in confinement for months 

before action. Now, depending on how quickly a legal office can process a record, entry of judgment can take place in a matter of days. 

Nor do I believe in the notion we could, or should, require our Airmen to 

seek relief for these issues solely in the federal court system. We have an obligation to be prepared to consider non-traditional post-trial confinement issues 

as part of our charge. Courts of Criminal Appeals need flexibility in post-trial 

submissions so that we can continue to reconcile injustices and shortcomings 

in order to continue to adapt to our ever-changing military population. I agree 
United States v. Willman, No. ACM 39642

16

with the point made by Judge Sparks in his dissenting opinion in Jessie, noting:

The majority is correct that Article 66, UCMJ, instructs the

lower courts to review issues “on the basis of the entire record.”

But it also entrusts the lower court with the weightier responsibility of ensuring an accused's sentence is “correct in law.” Confining our review only to the existing record, without exception,

would limit the lower court’s ability to do this.

Jessie, at 448 (Sparks, J., dissenting).

By closing the door on non-Eighth Amendment and Article 55 claims, we 

are perhaps closing the door on due process and First Amendment2 issues (as 

seen in Jessie), and other matters we simply cannot anticipate—matters that 

were not envisioned when Fagnan was decided.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

 

2 U.S. CONST. amend. I.