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

UNITED STATES                                )       No. ACM 39866
          Appellee                           )
                                             )
                 v.                          )
                                             )       ORDER
Theodore W. BARNABY                          )
Technical Sergeant (E-6)                     )
U.S. Air Force                               )
             Appellant                       )       Panel 2

    On 20 January 2021, Appellant’s military appellate counsel submitted a
Consent Motion to Examine Sealed Material and Transmit to Civilian Coun-
sel. Specifically, it moved this court to examine sealed materials, trial tran-
script pages 25–37 and 46, 1 and Appellate Exhibits VI–XII, XIV, XV, XVII,
XVIII, and XIX; and to grant permission to electronically transmit copies of
these sealed materials to Appellant’s civilian appellate counsel, Ms. Bethany
Payton-O’Brien. Appellant’s counsel argues the examination of these materi-
als is “reasonably necessary to fulfill their responsibilities in this case.” Ap-
pellee consents to this motion.
    Materials presented or reviewed at trial and sealed, as well as materials
reviewed in camera, released to trial counsel or defense counsel, and sealed,
may be examined by appellate counsel upon “a colorable showing to the re-
viewing or appellate authority that examination is reasonably necessary to a
proper fulfillment of the appellate counsel’s responsibilities under the UCMJ,
this Manual, governing directives, instructions, regulations, applicable rules
of practice and procedure or rules of professional conduct.” Rule for Courts-
Martial (R.C.M.) 1113(b)(3)(B)(i). 2
    Upon this court’s review of the record, we noted an issue regarding Appel-
late Exhibit IX. On the record, at page 24 of the transcript, the military judge
states, “We’re going to mark the court’s ruling as Appellate Exhibit IX so

1The court notes that page 46 of the transcript was not under seal. Page 46 is where
the military judge ordered items under seal.
2All references in this order to the Rules for Courts-Martial and Uniform Code of
Military Justice are to the Manual for Courts-Martial, United States (2019 ed.).
                  United States v. Barnaby, No. ACM 39866


we’re just going to keep that as a place holder.” On page 44 of the transcript,
trial counsel states, “Ruling on Government Motion to Compel Family Advo-
cacy Records of the Accused, dated 19 November 2019. It is a 7-page docu-
ment marked Appellate Exhibit IX.” However, Appellate Exhibit IX does not
contain the military judge’s ruling. Instead, it contains an audio recording.
Appellate Exhibit XI appears to contain the same recording as Appellate Ex-
hibit IX. The military judge’s ruling is missing from the record of trial.
    R.C.M. 1112(d), in effect at the time pertinent to this case, provides for
correction of a record of trial found to be incomplete or defective after authen-
tication. R.C.M. 1112(d)(2)–(3) describes the procedure for return of the rec-
ord of trial to the military judge for correction. The court notes that R.C.M.
1112(d)(2) requires notice and opportunity for the parties to examine and re-
spond to the proposed correction.
   Accordingly, it is by the court on this 2d day of February, 2021,
ORDERED:
    The record of trial is RETURNED to the Chief Trial Judge, Air Force
Trial Judiciary, for action consistent with R.C.M. 1112, to resolve the matter
of the military judge’s ruling and the sealed Appellate Exhibit IX, and cor-
recting the record. Once corrected, the record will be returned to the court not
later than 1 March 2021. Thereafter, Article 66(b), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 866(b), will apply.
    If the record is not returned to the court by 1 March 2021, the Govern-
ment will inform the court in writing not later than 1 March that date of the
status of the Government’s compliance with this order. If, for any reason, it
proves impracticable or impossible to correct the record, the record will be
returned to the court not later than 1 March 2021 with an explanation by the
Chief Military Judge as to why the record cannot be corrected.
   The court’s ruling with regards to Appellant’s Consent Motion to Examine
Sealed Material and Transmit to Civilian Counsel is held in abeyance until
the record of trial is returned.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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