U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                       ________________________

                           No. ACM 39310
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                       Chase J. EASTERLY
            Senior Airman (E-4), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 12 April 2019
                       ________________________

Military Judge: Charles E. Wiedie, Jr.
Approved sentence: Dishonorable discharge, confinement for 7 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 25 April 2017 by GCM convened at Joint Base Pearl Harbor-
Hickam, Hawaii.
For Appellant: Major Todd M. Swensen, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain Mi-
chael T. Bunnell, USAF; Captain Sean J. Sullivan, USAF; Mary Ellen
Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Senior Judge HUYGEN delivered the opinion of the court, in which
Judge MINK joined. Judge POSCH filed a separate opinion concurring
in the result in part and dissenting in part.
                       ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
                    United States v. Easterly, No. ACM 39310


HUYGEN, Senior Judge:
    A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of attempted premeditated murder in violation of Arti-
cle 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880. 1,2 The
members adjudged a sentence of a dishonorable discharge, confinement for
seven years, forfeiture of all pay and allowances, and reduction to the grade
of E-1. The convening authority approved the sentence as adjudged.
    Appellant asserts six assignments of error: (1) whether the military judge
abused his discretion by admitting Appellant’s confidential communications
with a psychotherapist; 3 (2) whether the military judge abused his discretion
by admitting statements Appellant made in the presence of his first sergeant
without being advised of his rights under Article 31, UCMJ, 10 U.S.C. § 831;
(3)–(5) whether the conviction of attempted premeditated murder was legally
and factually insufficient because the Government failed to prove specific in-
tent and substantial step and because Appellant abandoned his effort to
commit murder; and (6) whether, at the time of the offense, Appellant lacked
the mental responsibility to commit the offense. We also specified the issue of
whether the military judge committed plain error by failing to instruct sua
sponte on the impact of a punitive discharge on permanent retirement for
physical disability, and we considered the issue of timely appellate review.
We find prejudicial error with regard to the military judge’s failure to in-
struct the court members on the impact of a punitive discharge on retire-
ment. Thus, we affirm the findings but set aside the sentence.

                                  I. BACKGROUND
   In September 2015, Appellant was deployed to southwest Asia. While
there, he had homicidal thoughts, which worried him. He told his deployed


1 The members found Appellant not guilty of communicating a threat in violation of
Article 134, UCMJ, 10 U.S.C. § 934. A charge for fraudulent enlistment in violation
of Article 83, UCMJ, 10 U.S.C. § 883, was withdrawn and dismissed after arraign-
ment.
2All references in this opinion to the UCMJ, Rules for Courts-Martial, and Military
Rules of Evidence are to the UCMJ and rules found in the Manual for Courts-
Martial, United States (2016 ed.) (MCM).
3 The trial transcript, exhibits, and briefs addressing the first assignment of error
were sealed pursuant to Rule for Courts-Martial (R.C.M.) 1103A. These portions of
the record and briefs remain sealed, and any discussion of sealed material in this
opinion is limited to that which is necessary for our analysis. See R.C.M. 1103A(b)(4).




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                  United States v. Easterly, No. ACM 39310


first sergeant about these thoughts, and, as a result, he was medically evacu-
ated to Landstuhl Regional Medical Center (Landstuhl), Germany and, after
a couple of weeks of treatment, to Travis Air Force Base, California. While at
Landstuhl, Appellant received his first diagnosis of schizophrenia.
   In October 2015, when Appellant reached his home station of Joint Base
Pearl Harbor-Hickam, Hawaii, he began treatment consisting of prescribed
medication and regular (usually weekly) sessions with a psychologist, Major
(Maj) ER. Maj ER confirmed the diagnosis of schizophrenia, which triggered
the process to evaluate Appellant for a discharge based on disability.
    On 26 April 2016, an Informal Physical Evaluation Board (IPEB) con-
firmed a specific diagnosis of “Schizophrenia Spectrum, Persistent Auditory
Hallucinations” and found Appellant unfit for military service. However, the
IPEB also found that Appellant’s condition existed prior to military service
and was not permanently aggravated by military service. The IPEB conclud-
ed that Appellant should be discharged with no compensable disability, de-
spite his “significant risk of recurrence and/or progression of his disease” and
need for “frequent follow-up with a medical specialist.”
   In May 2016, the victim of Appellant’s offense, EE, met Appellant through
a dating website. At the time, EE was approximately 60 years old and Appel-
lant was 22. EE testified at trial and recounted the following: Their first date
was a dinner on Monday, 23 May 2016. EE described Appellant as “charm-
ing” and “a Jimmy Stewart sort of nice.” After dinner, they drove in Appel-
lant’s car to the beach. EE was cold and wanted Appellant to put his arm
around her. He declined to do so, at which point EE wanted to go home. They
drove back to the restaurant. Appellant asked for a goodnight kiss, but EE
spurned him because he smelled like cigar smoke. On Tuesday night, they
went country dancing, and EE described Appellant as “a complete gentle-
man.” Appellant asked EE to go out with him on Wednesday, but she said no.
   That Friday, 27 May 2016, EE and Appellant went on their third date,
which was planned as a dinner and a nighttime hike. When Appellant
showed up in casual clothes, EE was disappointed because “the first night I
was with Jimmy Stewart, the second night I was with like John Wayne, and
then there’s this guy that looks like he’s going to fix his car,” an impression
that turned out to be prophetic. On the way to dinner, Appellant’s car broke
down, and EE pushed it into the restaurant parking lot while he steered. His
previously mild stutter became “thick” as he was making phone calls to ar-
range a tow. After dinner, they took a taxi to EE’s apartment so that she
could drive Appellant back to base. When they were about to get into her car,
he asked to use her bathroom and added that he could check what tools he
would need the next day to hang a mirror she had asked him to hang. Once in
her apartment, she pointed him toward the guest bathroom but, shortly af-

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                  United States v. Easterly, No. ACM 39310


terwards, found him in her bathroom. She told him to get out of her bath-
room, which she did not like guests to use, and he went into her bedroom and
sat on her bed. After they argued about a news story being reported on televi-
sion, Appellant was “very apologetic,” asked EE to let him “relax” her, and
offered to perform oral sex on her. She initially declined but then acquiesced.
According to EE, the oral sex was not “something that he was wanting to do
or skilled at.” She stopped Appellant by sitting up “like the Exorcist” and yell-
ing, “I hope someone’s having fun because I’m not.” Her outburst saddened
Appellant, who struggled to say that he wanted to take a short walk. EE said,
“why don’t you take a long walk,” and Appellant left the apartment.
    EE expected Appellant to return the next day, Saturday, 28 May 2016, to
hang a mirror and build an armoire for her. She called him repeatedly and
left voicemail messages, the last one ending with her calling him a “coward.”
He did not return her calls or otherwise respond.
    On the afternoon of Sunday, 29 May 2016, EE heard a knock on her
apartment door. She was not expecting anyone, assumed there was a deliv-
ery, and decided not to answer. She then heard Appellant say her name and
apologize repeatedly; she did not respond. After 10 to 15 minutes had passed,
Appellant called out to EE’s roommate, who was not at home, and said that
he was there to retrieve his wallet. EE did not want to talk with Appellant, so
she stayed out of Appellant’s view but watched through a window as Appel-
lant took “another look around” and left.
    In a videotaped interview by Air Force Office of Special Investigations
(AFOSI) agents that was presented at trial, Appellant described his actions of
the weekend as follows: on 27 May 2016, Appellant was at EE’s apartment
when “my body went like numb . . . . I just stared at a wall for a good like
five, 10 minutes. And then I told her I wanted to go for a walk.” He left the
apartment and took a taxi back to base.
    On 28 May 2016, Appellant had “the urge to want to hurt [EE]” and
thought, “I don’t want to do this but I can’t stop myself.” He went to the Base
Exchange and bought a knife, lighter, and lighter fluid. He gathered a bag of
“items,” including the knife, lighter, and lighter fluid, trash bags, gloves, ex-
tra clothes, bleach, and a dust mask. He planned to make sure he would not
get “caught” by using the bleach “for DNA,” specifically, to remove his DNA
from the knife and EE’s apartment, the gloves “for no [finger]prints,” and the
lighter and lighter fluid to start a fire in EE’s apartment, as he had learned
to do by watching television shows.
   On 29 May 2016, Appellant borrowed another Airman’s car and drove to
EE’s apartment complex. He parked a few blocks away and claimed that he
avoided the security cameras around the complex as he approached EE’s


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                  United States v. Easterly, No. ACM 39310


building. Once inside, he followed another resident on to the elevator and ar-
rived at EE’s apartment. Standing with his hands at his sides and his bag at
his feet, he knocked on her door, waited 5 to 10 minutes, and then knocked
again. While he was nervous, he also felt “a power of like strength almost,
feels like a thrill ride.” But as he stood at her door for a total of approximate-
ly 20 minutes, “my brain clicked, like went back to normal me. And I realized
what I had done.” He further explained to AFOSI, “thank God she wasn’t
home. . . . ‘Cause otherwise I may have done it. . . . I might have actually
harmed her in some way. I don’t think I actually would have . . . killed her,
but I’m sure I might have tried actually harm[ing her].” He initially remem-
bered leaving the building and throwing his bag into a dumpster but then re-
called taking it out of the dumpster and back to his dormitory room. Although
Appellant told AFOSI that, “the day after,” he spoke with a chaplain and
then went with the chaplain to see Maj ER, he actually spoke with a chaplain
three days later and went by himself to see Maj ER.
    Monday, 30 May 2016, was a federal holiday. On Wednesday, 1 June
2016, Appellant talked with a military chaplain, who referred Appellant to
Maj ER, the psychologist who had been treating him since October 2015. Ap-
pellant—of his own volition and by himself—went to see Maj ER. Events un-
folded as described below, and the day ended with Appellant voluntarily ad-
mitted for in-patient treatment at the Behavioral Health Unit of Tripler Ar-
my Medical Center (TAMC), Hawaii.
    On the following Monday, 6 June 2016, Appellant’s first sergeant, Master
Sergeant (MSgt) JM, became the first person to contact AFOSI about Appel-
lant. On 7 June 2016, AFOSI agents executed a search authorization and
seized from Appellant’s dormitory room a black bag that contained various
items, including a bottle of bleach, a multipurpose lighter, a bottle of lighter
fluid, a face dust mask, an eight-inch knife in a sheath, a trash bag, shorts,
and a t-shirt. Documents and security camera video footage from the Base
Exchange indicated that Appellant bought the knife and, in a separate trans-
action, the lighter and lighter fluid on 28 May 2016. Security camera video
footage from EE’s apartment complex showed Appellant, wearing a suit and
carrying a black bag, as he walked to and waited for the elevator in EE’s
apartment building on 29 May 2016. On 8 June 2016, AFOSI agents inter-
viewed Appellant while he was still an in-patient at TAMC.
    Meanwhile, the PEB process continued. On 21 June 2016, a Formal Phys-
ical Evaluation Board (FPEB) determined that Appellant “has a chronic dis-
ease [schizophrenia] that has no cure and is characterized by unpredictable
exacerbations and remissions. Clinical notes state that [Appellant] will re-
quire lifelong treatments.” Overriding the earlier finding of the IPEB, the
FPEB found that Appellant’s condition was permanently aggravated by mili-


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                  United States v. Easterly, No. ACM 39310


tary service. As a result, the FPEB recommended “Permanent Retirement”
with a disability rating of 100 percent.
    Also on 21 June 2016, Appellant was released from in-patient treatment
at TAMC and ordered into pretrial confinement, where he remained until he
was sentenced on 25 April 2017.

                               II. DISCUSSION
A. Psychotherapist–Patient Privilege
   Appellant first asserts that the military judge abused his discretion by
admitting Appellant’s confidential communications with a psychotherapist,
which were made to facilitate mental health treatment. We disagree.
   1. Additional Background
    During a motions hearing, Maj ER described a meeting with Appellant on
1 June 2016 when Appellant told her that he was worried he might hurt
someone. He explained that, a couple days earlier, a woman with whom he
had a brief sexual relationship “stood him up.” He then obtained items to kill
her and went to her home, but she was not there. While he was not planning
to try again, he was scared about the possibility that he might. When Maj ER
asked Appellant if he was willing to be admitted for in-patient mental health
treatment, he indicated that he was.
    Maj ER notified Appellant’s chain of command, specifically, his first ser-
geant, MSgt JM, that Appellant posed a potential danger to other people.
Maj ER considered her notice to be an exception to the psychotherapist–
patient privilege. Maj ER relayed to MSgt JM that Appellant had planned to
murder a woman with whom he had a brief sexual relationship; that he
bought certain items to kill her; and that he went to her apartment and
knocked on her door but she was not at home. Appellant identified EE only
by her first name and did not provide her telephone number or address. In
notifying Appellant’s unit and providing details about what Appellant had
told Maj ER, Maj ER was trying to convey the gravity of the situation and to
differentiate it from previous incidents when Appellant had told her about
homicidal thoughts he was having. Although Appellant had previously de-
scribed having such thoughts to Maj ER, he had never before described plan-
ning or taking any action to commit murder.
    After Maj ER spoke with MSgt JM, she provided the same information
about what Appellant had told her in two telephone calls to TAMC, first to
the Emergency Room attending physician and second to the Behavioral
Health Unit attending psychiatrist. Maj ER did so intending for Appellant to
be evaluated at the Emergency Room and then admitted for in-patient hospi-


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                  United States v. Easterly, No. ACM 39310


talization at the Behavioral Health Unit. She also expected that, if there was
a “duty to warn,” TAMC would handle it.
    Maj ER “handed off” Appellant to MSgt JM, and MSgt JM escorted Appel-
lant to TAMC. Maj ER expected MSgt JM to stay with Appellant until he was
admitted or to contact her if he was not. Although Maj ER was supporting
Appellant’s decision to seek voluntary admission for in-patient treatment at
TAMC, she was fully prepared to take the necessary steps to have him admit-
ted involuntarily if he changed his mind.
    At Appellant’s court-martial, the Defense moved to suppress Appellant’s
statements to Maj ER and derivative evidence pursuant to Mil. R. Evid. 513.
The military judge conducted a closed hearing and denied the motion based
on the exceptions articulated in Mil. R. Evid. 513(d)(4) and Mil. R. Evid.
513(d)(6). The military judge also determined that Maj ER did not disclose
more information than necessary.
   2. Law
    “We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Jenkins, 

, 428 (C.A.A.F.
2006) (citing United States v. Manns, 

, 166 (C.A.A.F. 2000)). “We
will reverse for an abuse of discretion if the military judge’s findings of fact
are clearly erroneous or if his decision is influenced by an erroneous view of
the law.” United States v. Gore, 

, 187 (C.A.A.F. 2004) (quoting
United States v. Sullivan, 

, 363 (C.A.A.F. 1995)). “[A] judge has a
range of choices and will not be reversed so long as the decision remains with-
in that range.” 

States v. Wallace, 

, 1217 n.3
(D.C. Cir. 1992)).
    Mil. R. Evid. 513(a) states the general rule for the psychotherapist–
patient privilege and provides that a patient has a privilege to refuse to dis-
close and to prevent anyone else from disclosing a confidential communica-
tion made to a psychotherapist for the purpose of facilitating diagnosis or
treatment. “Psychotherapist” includes a clinical psychologist or other mental
health professional. Mil. R. Evid. 513(b)(2). A “confidential” communication is
“not intended to be disclosed to third persons other than those to whom dis-
closure is in furtherance of the rendition of professional services.” Mil. R.
Evid. 513(b)(4).
    Mil. R. Evid. 513(d) describes seven exceptions to the psychotherapist–
patient privilege. The two relevant to Appellant’s case are when a psycho-
therapist “believes that a patient’s mental or emotional condition makes the
patient a danger to any person,” Mil. R. Evid. 513(d)(4), and when disclosure
is “necessary to ensure the safety and security of military personnel, military



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                  United States v. Easterly, No. ACM 39310


dependents, military property, classified information, or the accomplishment
of a military mission,” Mil. R. Evid. 513(d)(6).
   3. Analysis
    The record in Appellant’s case, which includes the military judge’s written
ruling denying the Defense’s motion to suppress Appellant’s statements to
Maj ER, makes clear that those statements qualified under Mil. R. Evid. 513
as confidential communications subject to the psychotherapist–patient privi-
lege. Appellant made the statements to Maj ER as his treating psychologist
for the purpose of facilitating mental health treatment, or, as Appellant put it
when explaining to AFOSI how he came to be admitted at TAMC, “I went
straight [to Maj ER], said I need the help.”
    Had Appellant not told Maj ER about his attempt to kill EE, the Govern-
ment, particularly AFOSI or any law enforcement agency, would never have
known of Appellant’s crime. The Airman whose car Appellant drove to EE’s
apartment on Sunday and who Appellant asked to sharpen his newly pur-
chased knife on Saturday had no idea of what Appellant intended; EE did
not—and had no reason to—suspect that Appellant presented a threat when
she saw him at her door on Sunday; and the chaplain who referred Appellant
to Maj ER let him make the decision to go and let him go unescorted. But be-
cause of what Appellant told Maj ER, she notified MSgt JM and providers at
TAMC; MSgt JM escorted Appellant to TAMC and was present during Appel-
lant’s medical examination; and MSgt JM connected what he saw in Appel-
lant’s dormitory room—the black bag and its contents—to what Maj ER had
disclosed to MSgt JM and what Appellant had said when being admitted to
TAMC about Appellant’s plan to commit murder. As a result, MSgt JM con-
tacted AFOSI; AFOSI seized the bag and interviewed Appellant; and Appel-
lant provided the details of what he had done.
    Appellant now contends that the military judge abused his discretion by
not suppressing the statements Appellant made to Maj ER and all of the fruit
that sprang from that purportedly poisonous tree. We are not persuaded. The
military judge issued a written denial of the Defense’s motion to suppress,
which laid out his bases and reasoning with more than sufficient information
to leave us with a definite and firm conviction that the military judge did not
commit any error, much less abuse his discretion. In the denial, the military
judge addressed the three concerns Appellant raised at trial and raises again
on appeal, and we find in the military judge’s determinations neither a clear-
ly erroneous finding of fact nor an erroneous view of the law.
    First, Appellant points to Maj ER’s testimony that, at the time Appellant
made the confidential communications, he “did not have an active plan [to
kill EE] or intention to go out and do it again.” Appellant argues that the Mil.


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                  United States v. Easterly, No. ACM 39310


R. Evid. 513(d)(4) exception requires a “present” danger and that, when he
went to see Maj ER, more than two days had passed since his attempt to kill
EE and he did not want to hurt anyone at that time. We agree with Appel-
lant’s reading of Mil. R. Evid. 513(d)(4) to require a “present” danger insofar
as a strictly “past” danger would be insufficient to trigger the exception. For
example, Appellant’s homicidal thoughts before his September 2015 medical
evacuation would not have allowed Maj ER to disclose his confidential com-
munications to her in May 2016.
    However, we disagree with Appellant’s reading insofar as he would have
“present” mean “at that exact moment.” As the military judge explained, Maj
ER disclosed Appellant’s confidential communications because she believed
he was a “present” danger. While Maj ER played her part in Appellant’s vol-
untary admission for in-patient treatment at TAMC, she was fully prepared
to have him admitted involuntarily. No more than Maj ER and the military
judge, we cannot ignore the fact that Appellant went to see Maj ER on 1 June
2016 not only because he had planned and attempted to kill EE the weekend
before but also because he was scared he might try again. That Maj ER be-
lieved Appellant was a danger to anyone and thus the Mil. R. Evid. 513(d)(4)
exception applied was a fact-specific determination for the military judge that
we decline to override. See 

–31 (holding that
“[w]hether the exceptions [to Mil. R. Evid. 513] apply is necessarily a fact-
specific determination for a military judge to consider with an accurate
awareness of the facts underlying the dispute” and that the military judge
properly applied Mil. R. Evid. 513(d)(4) and (6) where the appellant made a
verbal threat while “brandishing” a knife and, two days later, made the con-
fidential communications at issue on appeal).
    Second, Appellant asserts that the Mil. R. Evid. 513(d)(6) exception did
not apply because EE was a civilian and therefore he did not endanger the
safety and security of himself or other military personnel, military depend-
ents, military property, or a military mission. However, the military judge
explained that he applied the exception specifically because of Appellant’s
military status:
       [Appellant] is a military member assigned to a military unit.
       While he remains a member of that military unit, he has a role
       to play in the accomplishment of the mission. His fitness for
       duty has a direct impact on his ability to perform his Air Force
       function. . . . [T]here was a real and immediate concern about
       his fitness for duty.
As with the Mil. R. Evid. 513(d)(4) exception, the application of the Mil. R.
Evid. 513(d)(6) exception was a fact-specific determination for the military
judge that we leave undisturbed.

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                  United States v. Easterly, No. ACM 39310


    Third, Appellant claims that Maj ER disclosed more privileged infor-
mation than was necessary to have Appellant admitted at TAMC and there-
fore more than was necessary to ameliorate the danger Appellant presented
or to ensure military safety and security. To support this claim, Appellant
relies on Air Force Instruction 44–172, Mental Health, ¶ 6.6.2 (13 Nov. 2015),
which directs mental health practitioners to “provide the minimum amount of
information to satisfy the purpose of the disclosure.” The military judge re-
solved the issue to our satisfaction by finding that the attempt to kill EE “was
very different in [Maj ER’s] mind” from the previous incidents when Appel-
lant experienced homicidal thoughts; his “unit needed to understand how this
situation was different”; and “this was best accomplished by explaining what
[Appellant] had done that made it different.” Thus, the military judge’s deci-
sion to deny the Defense’s motion to suppress Appellant’s statements to Maj
ER was well within the range of choices available to him, rested on neither a
clearly erroneous finding of fact nor an erroneous view of the law, and did not
constitute an abuse of discretion.
B. Article 31, UCMJ, Rights Advisement
    Appellant next avers that the military judge abused his discretion by ad-
mitting statements Appellant made while seeking medical treatment and in
the presence of his first sergeant, MSgt JM, without being advised of his
rights under Article 31, UCMJ. We are not convinced.
   1. Additional Background
   On 1 June 2016, Maj ER “handed off” Appellant to MSgt JM. During a
motions hearing, MSgt JM described what happened next: Appellant and
MSgt JM first drove separately to Appellant’s dormitory, where Appellant
parked his car and changed clothes. Appellant then rode with MSgt JM to the
TAMC Emergency Room.
    At the Emergency Room, Appellant, accompanied by MSgt JM, checked in
at the front desk and, after a brief wait, was shown to an examination room
where his vital signs were checked and a blood sample taken. Still accompa-
nied by MSgt JM, Appellant was shown to another examination room. As de-
scribed by MSgt JM, a woman—identified later in the record as a nurse—
came into the room and asked Appellant questions such as “was he feeling
anything on his skin, hearing any voices, seeing any visions, stuff like that.”
She did not ask and Appellant did not offer why Appellant was at TAMC. Af-
ter the woman left, a man—identified later as the Emergency Room attend-
ing physician, Dr. RD—came in and asked Appellant several questions, in-
cluding why he was there. MSgt JM remembered Appellant telling Dr. RD
that Appellant bought everything he needed “to commit the perfect murder”
and that he did not go through with it because “she wasn’t home.” After addi-


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                       United States v. Easterly, No. ACM 39310


tional questions and answers, Dr. RD left. Another man who MSgt JM de-
scribed as a “doctor” and was the Behavioral Health Unit attending psychia-
trist 4 entered the room, had MSgt JM step out, and asked MSgt JM what was
happening with Appellant. After the doctor and MSgt JM spoke, the doctor
told MSgt JM that he would be with Appellant for an hour to an hour and a
half and that MSgt JM could leave during that time. After an hour had
passed, MSgt JM returned and waited outside the examination room. The
doctor came out and informed MSgt JM that Appellant had voluntarily
“agreed to be admitted to the Behavioral Health Unit.”
    When Dr. RD, the Emergency Room attending physician, examined Ap-
pellant, MSgt JM was present. According to Dr. RD, it is “typical” for “com-
mand members” to be present during an examination of a military-member
patient if the patient is “brought in by command.” Furthermore, Dr. RD does
not have “command” leave unless the patient so requests. 5 The purpose of Dr.
RD’s examination is to determine if the patient is “medically cleared” for ad-
mission to the Behavioral Health Unit. If Dr. RD decides that “nothing else
needs to be done from a medical standpoint,” a psychiatrist conducts an eval-
uation and decides whether to admit the patient.
    Dr. RD began Appellant’s examination by asking what had brought Ap-
pellant to the Emergency Room. According to Dr. RD’s notes, Appellant said
that he had “gotten the idea in his head to . . . go and kill a girl. . . . He got his
materials. . . . Went to her home. She wasn’t home and he said he panicked
and realized he would have killed her.”
    After Appellant was admitted on Wednesday, 1 June 2016, MSgt JM next
saw Appellant when he visited Appellant on Friday, 3 June 2016. Appellant
asked him if he could bring Appellant a uniform and toiletries from Appel-
lant’s dormitory room, which he agreed to do on Monday, 6 June 2016. When
MSgt JM went to Appellant’s dormitory room that Monday, he first looked for
a bag to carry everything. He saw an unzipped black bag, opened it, saw
items that he assumed Appellant referenced as the items Appellant bought
“to commit the perfect murder,” including trash bags, bleach, black shorts,
and a dust mask, and closed the bag. After collecting the things he had come


4   There is no definitive by-name identification of the “doctor” in the record.
5 Dr. RD described his interactions with patients as “privileged” but, when ques-
tioned, clarified that he was referring to “physician-patient confidentiality” and pro-
tections for health information that he guessed would fall under the Health Insur-
ance Portability and Accountability Act (HIPAA). He was not referring to any privi-
lege for psychiatry or mental health treatment or diagnosis.




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                    United States v. Easterly, No. ACM 39310


for and putting them in another bag, MSgt JM looked in the first bag again
“to make sure I saw what I thought I saw,” left the first bag in the room, de-
parted the room, and contacted AFOSI that same day.
    On 7 June 2016, AFOSI agents executed a search authorization and
seized from Appellant’s dormitory room the black bag that MSgt JM had
looked in the day before. On 8 June 2016, AFOSI agents interviewed Appel-
lant while he was still an in-patient at TAMC. Before asking Appellant about
the events of 28–29 May 2016, one of the agents advised Appellant of his
rights under Article 31, UCMJ. After asking a few questions and acknowledg-
ing his understanding of his rights, Appellant waived them.
    At Appellant’s court-martial, the Defense moved to suppress his state-
ments to Maj ER and TAMC personnel, including those statements made in
the presence of MSgt JM, and derivative evidence pursuant to Article 31,
UCMJ, and the Fifth Amendment to the United States Constitution, U.S.
CONST. amend. V. The military judge conducted a hearing and denied the
motion because there was no requirement to advise Appellant of his Article
31, UCMJ, rights, including the right against self-incrimination, before he
made the statements at issue. 6
    2. Law
    The standard of review of a military judge’s decision to admit or exclude
evidence for an abuse of discretion is as stated above. “When there is a mo-
tion to suppress a statement on the ground that rights’ warnings were not
given, we review the military judge’s findings of fact on a clearly-erroneous
standard, and we review conclusions of law de novo.” United States v. Swift,

, 446 (C.A.A.F. 2000) (citing United States v. Ayala, 

,
298 (C.A.A.F. 1995)) (additional citation omitted).
    Article 31(a), UCMJ, articulates a military member’s right against self-
incrimination. 10 U.S.C. § 831(a). Article 31(b), UCMJ, requires that a person
subject to the UCMJ first inform a military member suspected of an offense
of “the nature of the accusation” and advise the member of the right against
self-incrimination before interrogating the member or asking for a statement.
10 U.S.C. § 831(b); see also Mil. R. Evid. 305(c)(1).


6 Unlike during motions practice at trial, Appellant now limits his claim of an Article
31, UCMJ, rights violation to the statements Appellant made in the presence of
MSgt JM while Appellant was seeking admission and treatment at TAMC. As a re-
sult, we do not address the applicability of Article 31, UCMJ, to the statements Ap-
pellant made to Maj ER and the Behavioral Health Unit attending provider, which
statements were made outside of MSgt JM’s presence.




                                          12
                  United States v. Easterly, No. ACM 39310


   3. Analysis
    The only self-incriminating statements Appellant made in MSgt JM’s
presence while Appellant was seeking medical treatment were the state-
ments to Dr. RD, the TAMC Emergency Room attending physician. In partic-
ular, MSgt JM recalled Appellant telling Dr. RD that Appellant bought items
“to commit the perfect murder.” MSgt JM thought he saw those items when
he opened a bag in Appellant’s dormitory room and then contacted AFOSI.
    The Article 31, UCMJ, issue raised by Appellant is a two-part question of
first whether Dr. RD was required to advise Appellant of his rights and sec-
ond whether MSgt JM was required to do so. The military judge answered
both parts in the negative, as do we.
    In the military judge’s written denial of the Defense’s motion to suppress
the statements made to medical personnel in MSgt JM’s presence, the judge
cited, inter alia, United States v. Loukas, 

, 387 (C.M.A. 1990), for
the general proposition that Article 31(b), UCMJ, applies if a military mem-
ber is questioned by someone acting in a law enforcement or disciplinary ca-
pacity. See also United States v. Cohen, 

, 49–50 (C.A.A.F. 2006).
We find no error with the military judge’s determination that Dr. RD and
MSgt JM were not acting in such a capacity and therefore neither was re-
quired to advise Appellant of his Article 31, UCMJ, rights. See also United
States v. Moses, 

, 134–35 (C.A.A.F. 1996) (“[I]n United States v.
Fisher, 21 U.S.C.M.A. 223, 

(1972), this Court held that a mili-
tary doctor was not required to give Article 31(b) warnings before asking
questions for the purpose of diagnosing a patient.”). We further note, as did
the military judge, that MSgt JM did not interrogate Appellant or ask him for
a statement about his offense, did not use the medical process or medical per-
sonnel to circumvent Article 31, UCMJ, and was present during Dr. RD’s
medical examination to ensure Appellant’s health and safety by ensuring he
was admitted for in-patient treatment. Accordingly, we find that the military
judge did not abuse his discretion by admitting the statements Appellant
made to Dr. RD in the presence of MSgt JM without Appellant being advised
of Appellant’s Article 31, UCMJ, rights.
C. Legal and Factual Sufficiency
    Appellant challenges the legal and factual sufficiency of his conviction of
attempted premeditated murder in three respects: (1) the Government failed
to prove specific intent; (2) the Government failed to prove substantial step;
and (3) Appellant abandoned his effort to commit murder. We conclude that
Appellant’s conviction is legally and factually sufficient.




                                      13
                  United States v. Easterly, No. ACM 39310


   1. Additional Background
    The evidence at trial indicated that the romantic relationship developing
between Appellant and EE came to an abrupt end with an awkward sexual
encounter on 27 May 2016. On 28 May 2016, while EE was leaving angry
voicemail messages, Appellant bought an eight-inch knife, lighter fluid, and a
lighter. On 29 May 2016, he drove to EE’s apartment and twice knocked on
her door with a bag at his feet containing the knife, lighter fluid, and lighter
as well as a bottle of bleach, face dust mask, trash bags, shorts, and a t-shirt.
After he waited for 20 or so minutes, he left.
    When interviewed by AFOSI on 8 June 2016, Appellant made several,
seemingly inconsistent statements. He described his state of mind during the
events of 28–29 May 2016 as “I still knew what I was doing somewhat, but
my brain, like I could not stop myself from doing things.” He also claimed
that he “actually didn’t want to do anything. So as far as I know I didn’t ac-
tually like actually do anything wrong. But you know I did have the thoughts
that I did want to do something but [I] wasn’t in my right mind at the time.”
Appellant admitted, “[The] only other time I’ve actually felt like I had actual
thoughts of wanting to harm someone was when I was deployed.” Comparing
the deployed incident to the charged incident, Appellant described the former
as “I only had thoughts. I never took any sort of action at all. . . . I wasn’t
even close to . . . wanting to harm someone or anything like that ‘cause I
stopped myself so soon. This time I had [no] chance to stop myself.”
   While Appellant conceded that “[i]f she were home I’m pretty sure I
would’ve harmed her in some way,” he found it significant that he wore “a
thousand dollar suit” to EE’s apartment:
       I wouldn’t want to mess that up . . . with blood or anything. I
       think that’s like another small part of me that was like . . .
       you’re not [going] to do this . . . ‘cause why would I wear a
       thousand dollar suit to do that. That doesn’t even make sense.
Furthermore, when Appellant “realized what [he] was doing,” he “went home”
and “never went back again,” a fact he thought important because “I’m sure if
I really wanted to do it I would’ve gone back again to her house, which I nev-
er did.” Yet, he also told AFOSI, “thank God she wasn’t home. . . . [O]therwise
I may have done it. . . . I might have actually harmed her in some way. I don’t
think I actually would have . . . killed her, but I’m sure I might have tried ac-
tually harm[ing her].”
   2. Law
   We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 

, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-

                                       14
                  United States v. Easterly, No. ACM 39310


ciency is limited to the evidence produced at trial. United States v. Dykes, 

, 272 (C.M.A. 1993) (citations omitted). The test for legal sufficiency
of the evidence is “whether, considering the evidence in the light most favor-
able to the prosecution, a reasonable factfinder could have found all the es-
sential elements beyond a reasonable doubt.” United States v. Turner, 

, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 

, 319 (1979)).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 

, 134 (C.A.A.F. 2001) (citations omitted).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasona-
ble doubt.” 

. “In conducting this unique appellate role,
we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presump-
tion of innocence nor a presumption of guilt’ to ‘make [our] own independent
determination as to whether the evidence constitutes proof of each required
element beyond a reasonable doubt.’” United States v. Wheeler, 

,
568 (A.F. Ct. Crim. App. 2017) (alteration in original) (quoting 

), aff’d, 

(C.A.A.F. 2018). The term “beyond a rea-
sonable doubt” does “not mean that the evidence must be free from conflict.”

States v. Lips, 

, 684 (A.F.C.M.R. 1986)).
    In order for Appellant to be found guilty of attempted premeditated mur-
der under Article 80, UCMJ, the Government was required to prove beyond a
reasonable doubt that (1) Appellant did a certain overt act, that is, went to
the residence of EE with a knife and other items, purposely avoided security
cameras, snuck on to the elevator, and knocked on her door; (2) the act was
done with the specific intent to commit premeditated murder; (3) the act
amounted to more than mere preparation; and (4) the act apparently tended
to effect the commission of the intended premeditated murder. See Manual
for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 4.b.
   An attempt requires more than preparation; it requires an overt act.
       The overt act required . . . is a direct movement toward the
       commission of the offense. . . . The overt act need not be the
       last act essential to the consummation of the offense. For ex-
       ample, an accused could commit an overt act, and then volun-
       tarily decide not to go through with the intended offense. An
       attempt would nevertheless have been committed, for the com-
       bination of a specific intent to commit an offense, plus the
       commission of an overt act directly tending to accomplish it,
       constitutes the offense of attempt.



                                      15
                   United States v. Easterly, No. ACM 39310

   Although failure to complete the offense is not a defense, voluntary aban-
donment is. 

(4).
        It is a defense to an attempt offense that the person voluntarily
        and completely abandoned the intended crime, solely because
        of the person’s own sense that it was wrong, prior to the com-
        pletion of the crime. The voluntary abandonment defense is not
        allowed if the abandonment results, in whole or in part, from
        other reasons, for example, the person . . . decided to await a
        better opportunity for success, was unable to complete the
        crime, or encountered unanticipated difficulties . . . .

    The elements of premeditated murder under Article 118, UCMJ, 10
U.S.C. § 918, are (1) that a certain person is dead; (2) that the death resulted
from an act or omission of the accused; (3) that the killing was unlawful; and
(4) that, at the time of the killing, the accused had a premeditated design to
kill. 

Premeditated murder is explained as “murder committed
after the formation of a specific intent to kill someone and consideration of
the act intended.” 

“The existence of premeditation may be
inferred from the circumstances.” 

Intent
    Appellant’s contention that the Government failed to prove his specific in-
tent to kill EE relies on his ambivalent statements to AFOSI, such as “I
might have actually harmed her in some way. I don’t think I actually would
have actually gone through [with it] and killed her,” and the fact that, while
standing at her apartment door, he never took the knife out of the bag. Con-
versely, the Government points to Appellant’s statement that he “bought eve-
rything he needed to commit the perfect murder” and his plan to use those
items to kill EE and evade detection by law enforcement: stab EE with a
knife but wear gloves to avoid leaving his fingerprints at the scene of the
crime, pour bleach on the knife and in the apartment to remove his DNA,
change from bloody clothes to clean ones, and light the apartment on fire to
destroy the evidence. The Government’s argument rests on the legal premise
that the intent to commit premeditated murder can be shown by direct or cir-
cumstantial evidence, United States v. Davis, 

, 83 (C.A.A.F. 1998)
(citation omitted), and the logical conclusion that, had Appellant intended
only to harm EE, he would have needed only a means to do so and not every-
thing “to commit the perfect murder.”
   We are persuaded by the Government’s argument. While Appellant never
explicitly stated that he intended to kill EE, such a statement was not neces-

                                       16
                   United States v. Easterly, No. ACM 39310


sary for the Government to prove specific intent. See 

find
the evidence sufficient to determine Appellant’s specific intent to kill EE de-
spite his attempts to minimize the deadly nature of his actions during his
AFOSI interview. He had developed a plan to “harm” EE and gathered par-
ticular items to cover up his crime of “harming” EE. But Appellant made no
attempt to hide his identity from EE, the “harm” was to be done with a knife,
and the cover-up involved setting the apartment on fire. The circumstantial
evidence supports the logical conclusion that Appellant intended to kill EE by
stabbing her to death, lest she survive any lesser harm and identify him as
the perpetrator.
    Considering the totality of the evidence, both direct and circumstantial,
and drawing every reasonable inference from that evidence in favor of the
prosecution, we are convinced that a reasonable factfinder could have found
beyond a reasonable doubt all the essential elements of attempted premedi-
tated murder, including that Appellant had the specific intent to commit the
offense. Furthermore, we have weighed the evidence in the record of trial and
made our own independent determination that the Government proved be-
yond a reasonable doubt each required element of the convicted offense, in-
cluding Appellant’s specific intent to kill EE as a premeditated act.
    4. Substantial Step
    Appellant asserts on appeal, as he did at trial, that the Government failed
to prove that Appellant took a substantial step to committing premeditated
murder and thus failed to prove that Appellant attempted the offense. 7 Ap-
pellant argues that his actions did not include taking out the knife, trying to
break into EE’s apartment, waiting for EE, or returning to the apartment
and therefore amounted only to “mere preparation.” We are instead persuad-
ed by the Government’s position and the actions Appellant did take: he
bought a knife, borrowed a car, drove to EE’s apartment, got on to the eleva-
tor without notifying her, and twice knocked on the door in a 20-minute time
period during which he waited for her to answer with a bag at his feet that
contained the knife to kill her and items to cover up the crime. These actions
constitute a substantial step, or overt act.
   Understanding that the overt act need not be the last act essential to
committing the offense, see MCM, pt. IV, ¶ 4.c.(2), we determine that Appel-


7 The Defense moved for a finding of not guilty pursuant to R.C.M. 917 “as there was
insufficient evidence to establish a substantial step that tended to effectuate the
commission of the murder of [EE] by knife.” The military judge denied the motion,
and Appellant does not now challenge that denial.




                                        17
                  United States v. Easterly, No. ACM 39310


lant’s overt act, particularly the last step of knocking, waiting, and knocking
again, completed the attempt offense. See United States v. Brooks, 

, 498–99 (C.A.A.F. 2005) (conviction for attempted carnal knowledge of a
child under the age of 12 was found legally sufficient where the appellant
brought a stuffed animal and other gifts suitable for a young child to a
planned meeting with the purported eight-year-old girl and was apprehended
at the door of the hotel room where the meeting was supposed to occur); Unit-
ed States v. Schweitzer, No. ACM 39212, 2018 CCA LEXIS 453, at *2–13
(A.F. Ct. Crim. App. 8 May 2018) (unpub. op.), rev. denied, 

(C.A.A.F. 2018) (conviction for attempted sexual assault of a child under the
age of 16 was found legally and factually sufficient where the appellant
bought condoms, put them in the glove box of his car, drove to the home of
the purported 14-year-old girl, and knocked on the back door). As Appellant
himself admitted, “thank God she wasn’t home. . . . [O]therwise I may have
done it.” See United States v. King, 

, 52 (C.A.A.F. 2012) (holding
that the appellant’s request for the victim to lift her shirt was an “overt act”
sufficient to constitute attempt and that, but for her refusal to do so, the ap-
pellant would have committed the offense of indecent conduct). A reasonable
factfinder could have found beyond a reasonable doubt that Appellant took a
substantial step and therefore attempted to commit premeditated murder,
and we are convinced beyond a reasonable doubt of the same.
   5. Abandonment
   The military judge instructed the court-martial panel members that the
“defense of voluntary abandonment has been raised by the evidence.” The
military judge continued:
       If you’re satisfied, beyond a reasonable doubt, of each of the el-
       ements of attempted premeditated murder . . . you may not
       find [Appellant] guilty . . . if, prior to the completion of [the of-
       fense], [Appellant] abandoned his effort to commit the offense,
       under circumstances manifest in a complete and voluntary re-
       nunciation of [Appellant]’s criminal purpose. . . . Renunciation
       of a criminal purpose is not voluntary if it is motivated, in
       whole or in part . . . by the inability to commit the crime. Re-
       nunciation is not complete if it is motivated by a decision to
       postpone the criminal conduct until a more advantageous time.
       The burden is on the prosecution to establish [Appellant]’s
       guilt, beyond a reasonable doubt. Consequently, unless you are
       satisfied, beyond a reasonable doubt, that [Appellant] did not
       completely and voluntarily abandon his criminal purpose, you
       may not find [Appellant] guilty . . . .



                                        18
                  United States v. Easterly, No. ACM 39310


    Appellant contends that, while standing at the door of EE’s apartment, he
realized what he was doing and that it was wrong, so he left, thus abandon-
ing his plan to harm EE. Had the evidence supported this theory—Appellant
abandoned his plan solely because of his own sense that it was wrong—then
we would agree that the defense of voluntary abandonment would prevent a
finding of guilt. But the evidence does not support this theory.
    In Appellant’s interview by AFOSI, he explained why he did not execute
his plan when he said, “[T]hank God she wasn’t home. . . . ‘Cause otherwise I
may have done it. . . . I might have actually harmed her in some way. I don’t
think I actually would have . . . killed her, but I’m sure I might have tried ac-
tually harm[ing her].” This admission, combined with Appellant’s actions of
knocking twice and waiting for 20 minutes and his recollection that he first
threw his bag in a dumpster but then retrieved it and took it back to his dor-
mitory room, convinces us beyond a reasonable doubt that he did not execute
his plan simply because he was unable to—not because he realized that what
he was doing was wrong. A reasonable factfinder could have made the same
determination and found beyond a reasonable doubt that Appellant did not
completely and voluntarily abandon his plan to kill EE.
    In summary, we find the Government carried its burden to prove that
Appellant specifically intended to kill EE and that he took a substantial step
towards accomplishing that objective and thus attempted to commit premedi-
tated murder. We also find Appellant did not completely and voluntarily
abandon his criminal plan. A reasonable factfinder could have found beyond a
reasonable doubt all the essential elements of the offense with which Appel-
lant was charged and convicted, and we are convinced beyond a reasonable
doubt of his guilt. Therefore, his conviction is legally and factually sufficient.
D. Lack of Mental Responsibility
    In Appellant’s final assignment of error, he claims that, because of his di-
agnosed schizophrenia, he lacked the mental responsibility at the time of the
offense to commit the offense and therefore his conviction was legally and fac-
tually insufficient. We are not persuaded.
   1. Additional Background
    Appellant was first diagnosed with schizophrenia when he was medically
evacuated to Landstuhl in September 2015. In October 2015, Maj ER con-
firmed the diagnosis, and the disability evaluation process began. In April
2016, an IPEB found Appellant unfit for military service and recommended
his discharge with no compensable disability. In June 2016, an FPEB over-
rode the IPEB and recommended “Permanent Retirement” with a disability
rating of 100 percent.



                                       19
                  United States v. Easterly, No. ACM 39310


   When AFOSI interviewed Appellant on 8 June 2016, he had been an in-
patient at the TAMC Behavioral Health Unit since 1 June 2016 and would
remain there until 21 June 2016. After checking with the unit’s attending
psychiatrist, the AFOSI agents met Appellant, advised him of his Article 31,
UCMJ, rights, which he waived, and then conducted the interview, which
was videotaped and played at trial.
    During the interview, Appellant made several references to his mental
state during the events of 28–29 May 2016, beginning with the following:
       I wasn’t in my right mind. Like my brain like clicked, to like
       where it switched. . . . [I have] schizophrenia, so I hear voices
       and like see things. So with that like I’ve had a series of like
       strange events to where I actually like lose time and things like
       that, to where I don’t know what I did. And this is kind of like
       one of those times to where I still knew what I was doing
       somewhat, but my brain, like I could not stop myself from do-
       ing things. So that’s kind of what happened, almost like a psy-
       chotic break in a way, to where like I didn’t understand it.
       That’s why I immediately went over here, sought treatment,
       ‘cause I was like I don’t know what’s going on.
Appellant went on to describe his actions of the weekend in significant detail.
Although his memory was not completely accurate and he misremembered
the three-day gap between when he went to EE’s apartment and when he
talked with the chaplain, he did not appear to suffer memory loss for any sig-
nificant action or period of time during the weekend of 28–29 May 2016.
    After the Government rested its case during the findings portion of Appel-
lant’s trial, the military judge and counsel discussed the possibility of a de-
fense of lack of mental responsibility and expert opinion testimony by
Maj ER, which the judge decided to allow. When the court-martial resumed
the next day, the military judge denied the Defense’s motions for findings of
not guilty and then asked whether the Defense was “going to offer the de-
fense of [lack of] mental responsibility.” The civilian defense counsel respond-
ed, “The defense intends to rest when we go back on the record,” and the De-
fense in fact rested without presenting any evidence on any matter, including
lack of mental responsibility.
    For findings, the military judge instructed the court-martial panel mem-
bers that the “evidence in this case raises the issue of whether [Appellant]
lacked criminal responsibility for the [charged offenses and lesser included
offenses] as a result of a severe mental disease or defect.” The military judge
continued with a lengthy instruction that informed the members if, when,
and how to consider the defense. The instruction also covered the presump-


                                      20
                  United States v. Easterly, No. ACM 39310


tion of mental responsibility, the defense burden “of proving by clear and
convincing evidence that [Appellant] was not mentally responsible,” and the
procedure to decide the issue. The military judge then said:
       To summarize, you must first determine whether [Appellant],
       at the time of these offenses, suffered from a severe mental dis-
       ease or defect. If you are convinced by clear and convincing evi-
       dence that [Appellant] did suffer from a severe mental disease
       or defect, then you must further consider whether he was una-
       ble to appreciate the nature and quality or the wrongfulness of
       his conduct. If you are convinced by clear and convincing evi-
       dence that [Appellant] suffered from a severe mental disease or
       defect, and you are also convinced by clear and convincing evi-
       dence that he was unable to appreciate the nature and quality
       or wrongfulness of his conduct, then you must find [Appellant]
       not guilty only by reason of lack of mental responsibility.
    During closing argument for findings, the Government addressed mental
responsibility by pointing out that the Defense presented “zero evidence” that
Appellant lacked mental responsibility at the time of the offense. The De-
fense countered that “the documents that are important, that show a lack of
mental responsibility are Prosecution Exhibits 23 and 24.” Those exhibits
were the respective forms documenting the results of the IPEB and FPEB, or,
as the Defense explained them, “one that shows that [Appellant is] 100% dis-
abled for schizophrenia, and the specific diagnosis is other specified schizo-
phrenia disorder with auditory hallucinations.” The Defense went on to argue
that Appellant could not appreciate the wrongfulness of his actions because of
his serious mental disease or defect of schizophrenia.
   2. Law
    The standard of review of legal and factual sufficiency is as stated above.
“It is an affirmative defense in a trial by court-martial that, at the time of the
commission of the acts constituting the offense, the accused, as a result of a
severe mental disease or defect, was unable to appreciate the nature and
quality or the wrongfulness of the acts.” Article 50a(a), UCMJ. 10 U.S.C. §
850a(a); see also R.C.M. 916(k). “The accused has the burden of proving the
defense of lack of mental responsibility by clear and convincing evidence.” Ar-
ticle 50a(b), UCMJ, 10 U.S.C. § 850a(b); R.C.M. 916(b)(2).
       The affirmative defense of lack of mental responsibility re-
       quires the accused to prove, by clear and convincing evidence,
       that at the time of the offense, (1) the accused suffered from a
       “severe mental disease or defect,” and (2) as a result of that
       mental disease or defect, the accused was “unable to appreci-


                                       21
                  United States v. Easterly, No. ACM 39310


       ate” either (a) the “nature and quality” of his acts, or (b) the
       “wrongfulness” of his acts.
United States v. Mott, 

, 323 (C.A.A.F. 2013) (quoting Article 50a,
UCMJ, 10 U.S.C. § 850a (2006)). Wrongfulness is determined using an “objec-
tive standard.” 

    In United States v. Martin, the United States Court of Appeals for the
Armed Forces (CAAF) decided to test for “reasonableness” non-guilt findings
of fact made by members on the question of mental responsibility but to test
for “clear error” such findings if made by a military judge. 

, 107
(C.A.A.F. 2001). Testing for reasonableness, an appellate court should reject
non-guilt findings of fact made by members on the question of mental respon-
sibility “only if no reasonable trier of fact could have failed to find that the
[accused’s lack of mental responsibility] at the time of the offense was estab-
lished by clear and convincing evidence.” 

   3. Analysis
    As the Defense simultaneously acknowledged and argued at trial, the on-
ly evidence to prove Appellant’s lack of mental responsibility was the evi-
dence from the IPEB and FPEB. The document from the IPEB showed that
Appellant had a diagnosis of “Schizophrenia Spectrum, Persistent Auditory
Hallucinations,” which many of the trial participants shortened to “schizo-
phrenia.” The document from the FPEB indicated that, because of Appellant’s
diagnosis, he was recommended for “Permanent Retirement” with a disability
rating of 100 percent.
    Assuming arguendo that it is appropriate to shorten the diagnosis of
“Schizophrenia Spectrum, Persistent Auditory Hallucinations” to a diagnosis
of “schizophrenia” and that schizophrenia is a severe mental disease or de-
fect, we turn to the question of whether, as a result of schizophrenia, Appel-
lant was unable to appreciate the nature and quality or the wrongfulness of
the acts constituting the offense of attempted premeditated murder. Appel-
lant’s own statements, especially those made to AFOSI, indicate that he
could. Appellant bought, collected, and put in a bag the items he believed he
needed to “commit the perfect murder.” He claimed he evaded the security
cameras as he approached EE’s apartment. He was prepared to destroy not
only any evidence he left at the scene of the crime but also the crime scene
itself in order to avoid getting caught. These statements lead us to conclude
that, even if Appellant was not fully in control of all his mental faculties at
the time of the offense, he was never unable to appreciate the nature and
quality or the wrongfulness of his actions. Thus, we determine that a reason-
able panel could have found that Appellant failed to carry his burden to prove
by clear and convincing evidence that he was not mentally responsible at the


                                      22
                  United States v. Easterly, No. ACM 39310


time of the offense. In other words, the defense of lack of mental responsibil-
ity fails the test for reasonableness and was not proven. See 

. Appellant’s conviction of attempted premeditated murder remains le-
gally and factually sufficient.
E. Retirement Instruction
    We specified the following issue: whether the military judge committed
plain error by failing to instruct sua sponte on the impact of a punitive dis-
charge on permanent retirement for physical disability. Despite the thorough
brief submitted by Appellee, we find plain error and set aside the sentence.
   1. Additional Background
   The documentation of the IPEB and FPEB findings and recommendations
was offered by the Government and admitted during the findings portion of
Appellant’s court-martial as Prosecution Exhibits 23 and 24 respectively.
    During the presentencing proceeding, the Defense called Colonel
(Col) DB, a psychiatrist and the Director of the Center for Forensic Behavior-
al Sciences, Walter Reed National Military Medical Center, Washington, Dis-
trict of Columbia. Col DB testified that “a finding of 100% disability. . . .
What that would afford [a person severely disabled by an illness], in addition
to disability payments is, lifelong access to medical care and treatment
through the [Veterans Affairs (VA)] system . . . .” As Prosecution Exhibits 23
and 24 indicated and Col DB explained, Appellant’s 100 percent disability
rating acknowledged that Appellant’s mental health condition would require
long-term treatment and “likely interfere with [his] ability to lead a produc-
tive life in any occupation.” In Appellant’s written and verbal unsworn
statements, he expressed his hope that he could continue to receive medica-
tions through the VA, which he could not if he was punitively discharged. The
Defense did not present evidence on the impact of a punitive discharge on
permanent disability retirement, which is what the FPEB recommended.
    When the military judge and counsel discussed sentencing instructions,
the Defense did not request and the military judge did not ask about an in-
struction on the impact of a punitive discharge on permanent retirement for
physical disability. The Government did request an instruction on collateral
consequences, which the military judge modified. After a defense objection
and discussion on the record, the military judge further modified the instruc-
tion and decided to give it.
   The military judge instructed the members on, inter alia, the effects of a
punitive discharge, including that “[s]uch a discharge deprives one of sub-
stantially all benefits administered by the Department of Veterans Affairs
and the Air Force establishment.” The military judge later instructed, “The
consequences that flow from a federal conviction, other than the punishment,

                                      23
                   United States v. Easterly, No. ACM 39310


if any you impose, are collateral consequences of the conviction. The collateral
consequences stemming from a federal conviction should not be part of your
deliberations in arriving at a sentence.”
    The Government argued for a sentence that included ten years of con-
finement and a dishonorable discharge. The Defense argued that ten years of
confinement and a dishonorable or bad-conduct discharge were not appropri-
ate and noted that a punitive discharge “strips [Appellant] of all his benefits.
It strips him of all his Veteran[s] Affair[s] benefits.”
   Although there had been discussion of the FPEB’s recommendation for
permanent disability retirement during the findings portion of trial, there
was no mention of Appellant’s eligibility for retirement during the presen-
tencing proceeding when the members were present.
   2. Law
    In United States v. Boyd, the CAAF articulated the general proposition
that, “[w]hen an accused is eligible for retirement, ‘the potential loss of re-
tirement benefits [is] a proper matter for consideration by factfinders[.]’” 

, 220 (C.A.A.F. 2001) (second and third alterations in original) (quot-
ing United States v. Sumrall, 

, 209 (C.A.A.F. 1996)) (additional
citation omitted). The CAAF then considered retirement for length of service
and temporary disability retirement. 

Regarding the former, the
Defense requested an instruction, which request the military judge denied.
The CAAF concluded that “any failure to instruct the members about the im-
pact of a dismissal on future retirement benefits did not have a substantial
influence on the sentence.” 

    Regarding Boyd’s temporary disability retirement, the Defense did not
request an instruction. The CAAF determined that “[b]ecause the defense did
not request an instruction on the impact of a punitive discharge on temporary
disability retirement, we will grant relief only if the military judge’s failure to
instruct sua sponte was plain error. See United States v. Grier, 

, 34
(C.A.A.F. 2000) . . . .” 

In Boyd, “there was no factual predicate for
an instruction on temporary disability retirement,” as no evidence about the
appellant’s eligibility for disability retirement was presented to the members.

held therefore “that there was no error at all, much less plain
error.” 

by the CAAF in Boyd (and the Government in its brief on the is-
sue we specified), Grier holds, “To be plain error: (1) there must be an error;
(2) the error must be plain (clear or obvious); and (3) the error must affect the
substantial rights of the 

(citing United States v.
Powell, 

, 463 (C.A.A.F. 1998)).



                                        24
                      United States v. Easterly, No. ACM 39310


      3. Analysis
    As Appellee repeatedly points out, the Defense did not request an instruc-
tion on the impact of a punitive discharge on permanent disability retire-
ment. Therefore, we will grant relief only if the military judge’s failure to in-
struct sua sponte was plain error.
    First, we find there was error. Contrary to Appellee’s assertion, there was
an evidentiary predicate that established Appellant’s eligibility for perma-
nent disability retirement: the FPEB findings and recommendation presented
to the members in the form of Prosecution Exhibit 24. See 

(holding that there was no error where there was no “factual predicate,”
or any evidence presented to the members reflecting the appellant’s eligibility
for disability retirement). Despite this evidence before the members, the mili-
tary judge did not ask the Defense about or sua sponte give a retirement in-
struction, and the members were not instructed on whether or how to consid-
er the impact of a punitive discharge on permanent disability retirement.
    Second, we find the error was clear or obvious. Prosecution Exhibits 23
and 24 were both discussed during the findings portion of trial, particularly
when the Defense first objected to Prosecution Exhibit 23 but then withdrew
the objection after the Government offered Prosecution Exhibit 24. In addi-
tion, the Government argued during findings that Appellant was concerned
about his retirement pay and 100 percent disability compensation when he
communicated the threat to kill any doctor who changed his diagnosis. 8 As
the assistant trial counsel put it, “There is a reason he made that threat. He
needed to make sure that that diagnosis did not change and . . . that his med-
ical retirement would go through.” Furthermore, Prosecution Exhibit 24, Ap-
pellant’s documented diagnosis, and the FPEB’s recommendation for retire-
ment and disability compensation were all discussed before and while Col DB
testified as a defense sentencing witness. Outside of the presence of the panel
but on the record, the military judge himself described Prosecution Exhibit 24
as “the official retirement . . . . this is the Air Force, on [Appellant’s] perma-
nent record, saying, you know, you are hereby retired and this is based upon
this diagnosis.” The military judge then asked the trial counsel “Is that not
correct?” and “But the Air Force is prepared to retire [Appellant] with a diag-
nosis of schizophrenia, correct?” The trial counsel responded “yes.”
    Third, we find the error of the military judge’s failure to instruct on re-
tirement affected the substantial rights of Appellant, specifically, his right to
have the court-martial panel members consider all of the information they

8   As noted previously, Appellant was found not guilty of this charge.




                                            25
                  United States v. Easterly, No. ACM 39310


were allowed to consider before they adjudged his sentence. Underlying our
assessment of the effect of the error is the premise articulated by CAAF that
retirement pay “is a critical matter of which the members should be informed
in certain cases before they decide to impose a punitive discharge.” United
States v. Luster, 

, 71 (C.A.A.F. 2001) (citation omitted). Unlike in a
case where an accused may become eligible for retirement based on years of
service at a future date, see, e.g., 

–21, Appellant was go-
ing to be permanently retired with a 100 percent disability rating once the
FPEB issued its findings and recommendation. It was a matter of when, not
if. In addition, the 100 percent disability rating meant lifetime care and
treatment for the mental health condition that was not only the sole driver of
Appellant’s retirement but also a central matter in Appellant’s trial.
    Our consideration of the effect of the error in Appellant’s case is further
informed by the context in which it occurred. While the military judge gave
the standard instruction on the effects of a punitive discharge, including the
deprivation “of substantially all benefits administered by the Department of
Veterans Affairs and the Air Force,” the CAAF has determined that “[w]here
a servicemember is perilously close to retirement . . . a general collateral-
consequences instruction disregarding the effects of a punitive discharge on
retirement will not suffice.” United States v. Talkington, 

, 217
(C.A.A.F. 2014) (quoting United States v. Greaves, 

, 139 (C.A.A.F.
1997)). Furthermore, it is significant that the military judge gave—at the
Government’s request and over the Defense’s objection—a collateral conse-
quences instruction that in effect directed the members not to consider the
impact on Appellant’s permanent disability retirement when deciding his
sentence. As the CAAF described in Talkington, “[t]he general rule concern-
ing collateral consequences is that ‘courts-martial [are] to concern themselves
with the appropriateness of a particular sentence for an accused and his of-
fense, without regard to the collateral administrative effects of the penalty
under consideration,’” even if the collateral consequences may be referenced
in an accused’s unsworn 

–16 (second alteration in
original) (quoting United States v. Griffin, 

, 424 (C.M.A. 1988)).
But retirement is different:
       [I]n reality, the impact of an adjudged punishment on the bene-
       fits due an accused who is eligible to retire is often the single-
       most important sentencing matter to that accused and the sen-
       tencing authority. Thus, it is only in a theoretical sense that
       the effect a punitive discharge has on retirement benefits can
       be labeled collateral. Moreover, the impact on benefits -- what-
       ever it may be -- can only be a direct and proximate conse-
       quence of the sentence.



                                      26
                  United States v. Easterly, No. ACM 39310

.
    Lastly, we reject Appellee’s contention that Appellant was not prejudiced
because “his crime was such that a punitive discharge was a foregone conclu-
sion.” While we appreciate the gravity of Appellant’s convicted offense of at-
tempted premeditated murder, we also weigh Appellant’s particular circum-
stances as a young man who will be released from confinement before he
turns 30, who faces a lifetime of uncertain educational and employment op-
portunities, and who must deal with a mental health condition that was per-
manently aggravated by military service and that, if left untreated, could
make him a danger to himself and others. The court-martial process provides
for sentencing by members or a military judge at the election of the accused,
includes a presentencing proceeding in which the Government, victim, and
the accused all have the opportunity to be heard, and does not involve sen-
tencing guidelines. Aside from mandatory-minimum punishments, there is no
aspect of an adjudged sentence that is a foregone conclusion.
    We therefore conclude that the military judge’s failure to instruct sua
sponte on the impact of a punitive discharge on Appellant’s permanent re-
tirement for physical disability was plain error. We set aside the sentence
and authorize a sentence rehearing. See 

.
F. Timeliness of Appellate Review
    We review de novo whether an appellant has been denied the due process
right to a speedy post-trial review and appeal. United States v. Moreno, 

, 135 (C.A.A.F. 2006) (citations omitted). A presumption of unrea-
sonable delay arises when appellate review is not completed and a decision is
not rendered within 18 months of the case being docketed. 

When a
case is not completed within 18 months, such a delay is presumptively unrea-
sonable and triggers an analysis of the four factors laid out in Barker v.
Wingo, 

, 530 (1972): “(1) the length of the delay; (2) the reasons
for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice.” 

(citations omitted).
    Appellant’s case was originally docketed with the court on 22 August
2017. The delay in rendering this decision by 22 February 2019 is presump-
tively unreasonable. However, we determine no violation of Appellant’s right
to due process and a speedy post-trial review and appeal.
    Analyzing the Barker factors, we find the length of the delay—seven
weeks—is not excessively long. The reasons for the delay include the time re-
quired for Appellant to file his brief on 9 July 2018 and the Government to
file its answer on 28 August 2018. The court then specified an issue for the
parties to brief by 20 February 2019. Appellant has not asserted his right to
speedy appellate review. With regard to possible prejudice, we recognize that


                                     27
                  United States v. Easterly, No. ACM 39310


Appellant began his seven years of confinement on 25 April 2017. Because of
our conclusion on the specified issue, we are setting aside the sentence and
authorizing a sentence rehearing. Having also considered the potential effect
of appellate delay on a rehearing, we still find no prejudice to Appellant re-
sulting from the delay for the court to complete appellate review of his case.
    Finding no Barker prejudice, we also find the delay is not so egregious
that it adversely affects the public’s perception of the fairness and integrity of
the military justice system. As a result, there is no due process violation. See
United States v. Toohey, 

, 362 (C.A.A.F. 2006). In addition, we de-
termine that Appellant is not due relief even in the absence of a due process
violation. See United States v. Tardif, 

, 223–24 (C.A.A.F. 2002).
Applying the factors articulated in United States v. Gay, 

, 744
(A.F. Ct. Crim. App. 2015), aff’d, 

(C.A.A.F. 2016), we find the de-
lay in appellate review justified and relief for Appellant unwarranted.

                               III. CONCLUSION
    The findings are AFFIRMED and the sentence is SET ASIDE. A rehear-
ing on the sentence is authorized. Articles 59(a) and 66(c), UCMJ, 10 U.S.C.
§§ 859(a), 866(c) (2016).


POSCH, Judge (concurring in the result in part and dissenting in part):
    I agree with my esteemed colleagues in the majority on the resolution of
Appellant’s six assignments of error and the issue of timely appellate review
and affirm the findings of guilty of attempted premeditated murder in viola-
tion of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880. Howev-
er, I respectfully dissent with regard to the majority’s conclusion that the mil-
itary judge’s failure to instruct on the effect of a punitive discharge on Appel-
lant’s apparent eligibility for permanent disability retirement materially
prejudiced Appellant’s substantial rights under Article 59(a), UCMJ, 10
U.S.C. § 859(a).
    Ultimately, the court must determine whether any error of law had a
“substantial influence on the sentence” adjudged by the court-martial. See
United States v. Boyd, 

, 221 (C.A.A.F. 2001) (concluding that “any
failure to instruct the members about the impact of a dismissal on future
[length of service] retirement benefits did not have a substantial influence on
the sentence.”) (citing Kotteakos v. United States, 

, 765 (1946)).
“If so, then the result is material prejudice to Appellant's substantial rights.”
United States v. Griggs, 

, 410 (C.A.A.F. 2005) (setting out the test
for the erroneous admission or exclusion of evidence). See also United States



                                       28
                      United States v. Easterly, No. ACM 39310


v. Sanders, 

, 346 (C.A.A.F. 2009); United States v. Bridges, 

, 249 (C.A.A.F. 2008).
    Assuming arguendo that the military judge’s failure to sua sponte instruct
on the impact of a punitive discharge on permanent disability retirement was
error that was clear or obvious, I cannot conclude, after considering all the
sentencing evidence and weighing Appellant’s conviction against his sen-
tence, that, if there was error, it was prejudicial.
    Appellant never sought the retirement instruction that the majority today
concludes the military judge was required to give. Nor did the Defense pre-
sent evidence or argument 1 with regard to the effect that a punitive discharge
would have on Appellant’s eligibility for disability retirement pay that might
result from the recommendation by the Formal Physical Evaluation Board
(FPEB) that Appellant was medically unfit to serve, 2 distinct from disability
pay and benefits administered by the Department of Veterans Affairs (VA). 3
It was the recognized loss of these latter benefits that was a significant focus
of Appellant’s sentencing case. The Defense argued that a dishonorable dis-
charge would “strip[ ] [Appellant] of all his [VA] benefits” and that, consider-
ing “how expensive [Appellant’s] medications are,” a punitive discharge was
not in Appellant’s interest or society’s. Nonetheless, the members considered
Prosecution Exhibits 23 and 24, along with Col DB’s testimony and Appel-
lant’s verbal and written unsworn statements, 4 and adjudged a punitive dis-
charge, knowing full well that doing so would deprive Appellant “of substan-
tially all benefits administered by the Department of Veterans Affairs and



1 As the Defense may have deduced, the possibility that an appellant would receive
retirement benefits can be a reason for adjudging a punitive discharge. See, e.g.,
United States v. Stargell, 

, 93 (C.A.A.F. 1998) (finding no error where the
appellant was “knocking at retirement’s door” and trial counsel argued the appellant
“will get an honorable retirement unless you give him a [bad-conduct discharge].”).
2   The fitness determination is made by the Air Force. See 10 U.S.C. § 1201.
3 Col DB testified that a finding of 100 percent disability would afford Appellant ac-
cess to disability payments as well as medical treatment through the VA system.
4   Appellant explained to the panel in his verbal unsworn statement inter alia:
          I will continue to try to get help no matter what the sentence is. I am
          worried though about my ability to continue to receive medication. I
          hope that I can continue to receive medications through the VA. I
          know that it will not be easy to determine what an appropriate sen-
          tence is. I ask for your leniency and mercy. I ask that you give me
          hope that I can continue to receive my medication once I leave jail.




                                            29
                   United States v. Easterly, No. ACM 39310


the Air Force,” as the military judge properly instructed the members that it
would.
    This was not a case “where the decision to award a punitive discharge
was such a close call.” See United States v. Luster, 

, 72 (C.A.A.F.
2001) (finding prejudicial error in the exclusion of sentencing evidence of the
appellant’s expected retirement pay after he was convicted of a single specifi-
cation of wrongful use of marijuana). This case stands in stark contrast to
Luster, where the crime was relatively minor and the appellant “had no rec-
ord of prior convictions or non-judicial punishments (although he was not a
perfect airman).” 

was convicted of attempting a cruel and
savage premeditated murder. If not for EE’s decision to not open the door to
her home, Appellant might have killed her with his eight-inch knife as Appel-
lant intended and then covered up the crime, using his lighter, lighter fluid,
trash bags, gloves, extra clothes, dust mask, and bottle of bleach.
   Because the members were convinced that the more severe punitive dis-
charge was appropriate and knew that a dishonorable discharge would sever
Appellant’s eligibility for medical treatment from the VA, I find it to be im-
probable on these facts that Appellant would have fared better and avoided a
punitive discharge altogether if the military judge had instructed the mem-
bers sua sponte on the possible loss of disability retirement pay as a result of
the FPEB’s recommendation.
    The majority also finds error affecting Appellant’s substantial rights, in
part, because of a collateral consequences instruction given by the military
judge. 5 The instruction that the majority finds concerning read, “the conse-
quences that flow from a federal conviction, other than the punishment, if
any you impose, are collateral consequences of the conviction. The collateral
consequences stemming from a federal conviction should not be part of your
deliberations in arriving at a sentence.” The majority concludes that this in-
struction “in effect directed the members not to consider the impact on Appel-
lant’s permanent disability retirement when deciding his sentence.” (Empha-
sis added.) I disagree. Had the instruction, in fact, charged that the collateral
consequences of Appellant’s sentence should not be part of the member’s de-
liberations, I might be more aligned with the majority’s conclusion. But it did
not. I would be persuaded to agree with the majority’s conclusion if the in-


5 The Government asked for this instruction after Appellant’s mother testified that
Appellant might have difficulty “finding a job, because of a felony [conviction].” The
military judge provided the instruction after concluding that her testimony alluded to
a collateral consequence of Appellant’s court-martial conviction.




                                         30
                    United States v. Easterly, No. ACM 39310


struction directed the members to disregard the consequences of a sentence
that included a punitive discharge (in conflict with the VA benefits instruc-
tion), but it did no such thing. Rather, the military judge properly informed
the panel that the consequences that flowed from Appellant’s federal convic-
tion—other than, obviously, the punishment itself—were collateral and
should not be a part of their deliberations. See United States v. Talkington,

, 216–17 (C.A.A.F. 2014) (“Collateral consequences” of a court-
martial conviction are ordinarily not germane to determining an appropriate
sentence because the collateral consequence “operates independently of the
sentence adjudged.”). This is in contrast to an “impact on benefits” as a “di-
rect and proximate consequence of the sentence.” 

(emphasis added)
(citing United States v. Griffin, 

, 425 (C.M.A. 1988)). 6 I conclude
the collateral consequences instruction in Appellant’s case was both proper
and benign.
    I am not persuaded that the military judge’s failure to instruct sua sponte
on the impact of a punitive discharge on Appellant’s permanent retirement
for physical disability had a substantial influence on the sentence and thus
materially prejudiced Appellant’s substantial rights. The adjudged dishonor-
able discharge may not have been a foregone conclusion as Appellee argues,
but it was not a close call either. See 

. I would not, there-
fore, set aside the sentence but would instead affirm the sentence as ad-
judged and approved by the convening authority.


                      FOR THE COURT



                      CAROL K. JOYCE
                      Clerk of the Court




6A collateral consequence may be the result of a conviction of a crime or the result of
a particular sentence. A collateral consequences instruction may address either or
both (i.e., a “general” collateral consequences instruction in the case of the latter).
Compare, e.g., United States v. Talkington, 

, 216–17 (C.A.A.F. 2014) (ad-
dressing both conviction and sentence), with, e.g., United States v. Greaves, 

, 136–37 (C.A.A.F 1997) (addressing sentence only).




                                          31