Filed: Jun. 02, 2021
Latest Update: Jun. 03, 2021
This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Eric R. PROCTOR, Technical Sergeant
United States Air Force, Appellant
No. 20-0340
Crim. App. No. S32554
Argued February 10, 2021—Decided June 2, 2021,
Military Judge: Christina M. Jimenez
For Appellant: Captain Ryan S. Crnkovich (argued); Mark
C. Bruegger, Esq. (on brief); Major David A. Schiavone.
For Appellee: Major Jessica L. Delaney (argued); Colonel
Shaun S. Speranza, Lieutenant Colonel Matthew J. Neil,
and Mary Ellen Payne, Esq. (on brief).
Judge HARDY delivered the opinion of the Court, in
which Judge SPARKS and Judge MAGGS joined. Chief
Judge STUCKY filed a dissenting opinion, in which
Judge OHLSON joined.
_______________
Judge HARDY delivered the opinion of the Court.
Over a year before Appellant’s court-martial, but after he
was known to have committed the misconduct for which he
was later convicted, Appellant’s commanding officer, Lieuten-
ant Colonel (Lt Col) MS, conducted a regularly scheduled
commander’s call with the entire squadron. Lt Col MS dis-
cussed a variety of topics during the call, including military
awards, civilian achievements, sexual assault, and recent
noncommissioned officer (NCO) misbehavior and poor deci-
sion-making. Although Lt Col MS did not mention any NCO
by name or reference any specific incidents of NCO miscon-
duct, his remarks about NCOs were motivated, in part, by his
knowledge of Appellant’s actions.
As part of the discussion about NCO misconduct, Lt Col
MS encouraged the squadron to support their fellow airmen,
no matter what process or difficulty the airman may be going
United States v. Proctor, No. 20-0340/AF
Opinion of the Court
through, but cautioned the squadron to not “enable” bad be-
havior. To illustrate this point, Lt Col MS related an anecdote
about a decision he made earlier in his career when he was
an NCO to not write a character letter on behalf of a junior
airman who was facing nonjudicial punishment for missing
curfew. Lt Col MS explained that he felt he could not write a
letter in support of the airman because the airman’s conduct
diminished good order and discipline in the unit.
Prior to his court-martial, Appellant filed a motion seek-
ing the dismissal of his case due to “actual and perceived un-
lawful command influence.” Appellant argued that Lt Col
MS’s statements during the commander’s call discouraged
Appellant’s coworkers from providing character letters or tes-
tifying on Appellant’s behalf. Both the trial court and the
United States Air Force Court of Criminal Appeals (AFCCA)
rejected Appellant’s claim, and we do as well. Although Ap-
pellant provided some evidence of unlawful command influ-
ence, we conclude that an objective, disinterested observer
would not harbor any significant doubts about the ultimate
fairness of Appellant’s court-martial proceeding. Accordingly,
we hold that there was no appearance of unlawful command
influence in this case, and we affirm the decision of the
AFCCA.
I. Background
At the time of his court-martial, Appellant was a technical
sergeant (E-6) assigned to the security forces squadron at
Schriever Air Force Base, Colorado. The specifics of the mis-
conduct that led to Appellant’s court-martial are not particu-
larly relevant to the legal issue before us. It is sufficient to
note that Appellant’s convictions were the result of miscon-
duct with other airmen in his squadron, including interac-
tions he had with his girlfriend, Staff Sergeant (SSgt) CM.
What is important, however, was the timing and details of
other events preceding Appellant’s court-martial. Appellant’s
commanding officer, Lt Col MS, originally preferred charges
against Appellant on June 7, 2017. These initial charges were
withdrawn without prejudice on August 1, 2017. About a
week later, on August 7, 2017, Lt Col MS held his biannual
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Opinion of the Court
commander’s call, which had been planned months in ad-
vance. At the time of the call, Lt Col MS knew that he was
going to prefer new charges against Appellant.
As noted above, Lt Col MS discussed a variety of topics
during the call, including his “NCO problem”—the recent poor
behavior exhibited by some of the squadron’s NCOs. In addi-
tion to Appellant’s misconduct, one NCO had been found out-
side of a nightclub with twice the legal limit of alcohol in his
system, another NCO had recently injured a junior airman
while improperly operating a motorcycle, and multiple other
NCOs had recently failed their physical assessments. Lt Col
MS later testified:
My goal [for the commander’s call] was to get NCOs
to start acting like NCOs, and other NCOs who were
holding the line, to call the other NCOs out. They
should be embarrassed when their NCOs are acting
a certain way and giving their corps a bad name.
Just like we get embarrassed when officers
misbehave.
Lt Col MS explained that this was “a situation where my unit
was suffering and members of my unit needed to understand
that the team was on top of things.”
During this discussion about NCOs who might be in trou-
ble or in need, Lt Col MS tried to explain “the difference be-
tween supporting airmen and enabling airmen.” He told the
squadron that they needed to support their fellow airmen no
matter what disciplinary or criminal process they might be
going through. But Lt Col MS also cautioned his squadron
that they shouldn’t enable bad behavior, and offered two anal-
ogies to explain what he meant.
First, Lt Col MS presented the example of a fellow airman
who suffers from alcohol or drug addiction. Lt Col MS high-
lighted the difference between supporting that person as they
struggle with the problem versus enabling them by going to
the liquor store and buying them the next bottle.
Second, Lt Col MS told a story about when he was an NCO
and one of the junior airmen under his supervision was in the
middle of Article 15, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 815 (2012), nonjudicial punishment pro-
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Opinion of the Court
ceedings for breaking curfew while deployed. The junior air-
man asked Lt Col MS to write a character statement on his
behalf, but Lt Col MS declined. Although we do not know ex-
actly how Lt Col MS described this incident during the com-
mander’s call, he later testified about it before the trial court.
He said that he explained to the airman that he was “ ‘here to
support you’ ” and that the airman could “ ‘come talk to [him]
any time.’ ” But Lt Col MS also told the airman that he was
“not putting [his] name on a piece of paper for you telling the
commander that he should consider reducing the punishment
and not take stripes from you.” Lt Col MS explained to the
junior airman that “[n]ot only did you disobey the order of the
mission commander, but I looked you in the eye and I told you
to make sure you are back on time. . . . You embarrassed eve-
rybody. You violated the order.”
Lt Col MS testified that this story related to both his com-
mitment to support the junior airmen under his supervision
and his duty to the Air Force. With respect to the latter, he
stated that his then-commander would probably have ques-
tioned his judgment and his ability as an investigator if he
had chosen to write the character statement for the junior air-
man. He testified that he did not know if making the opposite
decision would have had a negative impact on his career, but
he conceded that he probably would not have been his com-
mander’s investigator if he had advocated for not punishing
the junior airman who had diminished the good order and dis-
cipline of the unit.
During the commander’s call, Lt Col MS did not connect
this story with the NCO issues then present in the squadron.
He did not mention Appellant or anyone else by name, or ref-
erence any specific incidents of misconduct or ongoing admin-
istrative or disciplinary actions. Other than the story about
the junior airman from earlier in his career, Lt Col MS testi-
fied that he did not mention character letters.
After the commander’s call, a junior NCO who was Appel-
lant’s friend asked to meet with Lt Col MS. This junior NCO
had previously given a statement to law enforcement saying
that he “thought that the unit and Air Force were after [Ap-
pellant] and [Appellant] wasn’t that bad.” During their ensu-
ing conversation, Lt Col MS reinforced his expectation that
the junior NCO should “support [Appellant] when he needs
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Opinion of the Court
something. Just do not enable him.” Lt Col MS encouraged
the junior NCO to contact Appellant’s defense counsel, telling
him, “[y]ou call the defense. . . . That’s part of the process. You
call them. They are going to interview you. All I ever expect
anybody to do in this unit is just tell the truth.”
On August 14, 2017, a week after the commander’s call,
Lt Col MS preferred new charges and specifications against
Appellant for disobeying a lawful command, assault consum-
mated by battery, aggravated assault, and communicating a
threat, in violation of Articles 90, 128, and 134, UCMJ, 10
U.S.C. §§ 890, 928, 934 (2012). The trial on the merits in Ap-
pellant’s subsequent court-martial began August 23, 2018,
more than a year after the commander’s call, and almost two
months after Lt Col MS had changed duty stations to Joint
Base Charleston, South Carolina.
Prior to his court-martial, Appellant filed a pretrial mo-
tion to dismiss all charges due to the appearance of unlawful
command influence.1 Appellant argued that Lt Col MS’s mes-
sage during the commander’s call improperly influenced Ap-
pellant’s court-martial by discouraging the squadron from
writing character letters on his behalf. At the subsequent mo-
tions hearings, in addition to the testimony from Lt Col MS
referenced above, both defense and trial counsel called air-
men who were present at the commander’s call to give their
impression of the call. Their testimony demonstrated that dif-
ferent airmen came away with differing interpretations of the
message that Lt Col MS was trying to convey.
Master Sergeant (MSgt) CP understood Lt Col MS’s mes-
sage to be support your fellow airmen, even if they are in trou-
ble. Senior Airman (SrA) RE left the commander’s call feeling
that he was free to support anyone in the unit. Although he
had the impression that writing a character letter for some-
one in trouble might “rub [Lt Col MS] the wrong way,” he also
1 Appellant’s motion appeared to assert both unlawful com-
mand influence and the appearance of unlawful influence, seeking
dismissal with prejudice of all charges pursuant to Article 37,
UCMJ, “for actual and perceived unlawful command influence.” De-
fense counsel later clarified before the military judge that Appellant
was only asserting the appearance of command influence. Article
37, UCMJ, 10 U.S.C. § 837 (2012).
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Opinion of the Court
said that Lt Col MS’s message was unclear and left “a lot of
room for imagination.” Ultimately, SrA RE made clear that
he personally would not have any concern, based on the com-
ments made at the commander’s call, about writing a charac-
ter letter for someone in trouble, although he might feel dif-
ferently if he intended to stay in the Air Force for twenty
years. SSgt AG recalled the message to be that airmen should
rethink their position in the Air Force if they support certain
individuals or NCOs. He went on to explain that he was con-
fused by the message but felt that he could remain Appel-
lant’s friend, support Appellant, cooperate with Appellant’s
defense counsel, and if he chose, write a character letter on
behalf of Appellant, without facing any repercussions.
The airmen’s testimony from the motions hearing demon-
strated that at least some airmen connected Lt Col MS’s com-
ments about supporting but not enabling their fellow NCOs
to their own personal decisions about writing character let-
ters on behalf of Appellant. Nevertheless, no airmen testified
that Lt Col MS’s comments caused any airman to change his
mind about providing a character letter or otherwise assisting
Appellant’s defense.
At the conclusion of the hearings, the military judge de-
nied Appellant’s motion to dismiss the charges pursuant to
Article 37, UCMJ, holding that Appellant had “not presented
‘some evidence’ beyond mere allegation or speculation that
raises a claim of apparent [unlawful command influence] in
the adjudicative stage.” The military judge found that “the
squadron commander addressed his unit at a commander’s
call regarding NCO misconduct in general, and at a time
when the accused was no longer under preferred or referred
charges, nor in pretrial confinement” and that “[t]here [was]
no evidence before this court that witnesses once supportive
of the accused, [had] since altered any prior promise of sup-
port.” The military judge also found that there was no evi-
dence that Lt Col MS “was trying to influence the outcome of
a prospective court-martial involving the accused in either
the finding or the sentencing stage.”
A special court-martial composed of officer and enlisted
members found Appellant guilty, contrary to his pleas, of six
counts of disobeying an order, one count of assault consum-
mated by battery, and one count of wrongfully communicating
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United States v. Proctor, No. 20-0340/AF
Opinion of the Court
a threat, in violation of Articles 90, 128, and 134, UCMJ. Ap-
pellant was sentenced to a bad-conduct discharge, hard labor
without confinement for three months, and reduction of grade
to E-3.
On appeal, the AFCCA disagreed with the military judge
and held that Appellant had satisfied his initial burden of
showing “some evidence” of unlawful command influence.2
2020 CCA LEXIS 196, at *43, 2020 WL 2991773, at *14 (in-
ternal quotation marks omitted) (citation omitted). Neverthe-
less, the court then concluded that the Government had suc-
cessfully rebutted the allegation of apparent unlawful
command influence by proving beyond a reasonable doubt
that no fully informed, disinterested, objective observer would
doubt the fairness of Appellant’s court-martial.
Id. at *44,
2020 WL 2991773, at *15. The AFCCA based its conclusion
on the facts that: (1) none of the witnesses understood Lt Col
MS’s commander’s call message as one discouraging them
from writing character letters for Appellant; (2) the court-
martial occurred more than a year after the commander’s call;
(3) no airman testified that Lt Col MS would take any action
2 More precisely, the AFCCA held that “Appellant met his ini-
tial showing of ‘some evidence’ of apparent UCI.” United States v.
Proctor, No. ACM S32554, 2020 CCA LEXIS 196, at *43,
2020 WL
2991773, at *14 (A.F. Ct. Crim. App. June 4, 2020) (unpublished).
(emphasis added) (citation omitted); see also
id. at *44,
2020 WL
2991773, at *15 (“Nonetheless, we conclude that the evidence of ap-
parent UCI was rebutted by the Government’s proof . . . .” (empha-
sis added)). The AFCCA’s focus on evidence of apparent unlawful
command influence at this initial stage was a mistake. As the
AFCCA stated a few paragraphs earlier in the “Law” section of its
opinion: “When an appellant asserts there was an appearance of
unlawful command influence, the appellant initially must show
‘some evidence’ that unlawful command influence occurred.”
Id. at
*41,
2020 WL 2991773, at *13 (alterations in original removed) (in-
ternal quotation marks omitted) (quoting United States v. Boyce,
79
M.J. 242, 249 (C.A.A.F. 2017)). In light of the fact that (1) we review
the AFCCA’s unlawful command influence analysis de novo, and (2)
the AFCCA properly stated the law in the “Law” section of its opin-
ion, we do not believe that the AFCCA’s mistake raises any addi-
tional concerns. To avoid further confusion on this point, we treat
the AFCCA’s opinion as finding some evidence of actual rather than
apparent unlawful command influence throughout this opinion.
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Opinion of the Court
against them for their participation in the court-martial; (4)
there was no evidence that any airman refused to testify or
write a character letter in support of Appellant; and (5) there
was no evidence that a witness once supportive of Appellant
later withdrew or changed any assurance of support. Id. at
*43,
2020 WL 2991773, at *14.
We granted review of the following issue:
At an all-call prior to Appellant’s court-martial, Ap-
pellant’s squadron commander sought to address his
“NCO problem” by highlighting the negative career
impacts someone could suffer if they provided a
character letter for an accused airman. Did the Air
Force Court err when it found, beyond a reasonable
doubt, that this unlawful command influence did not
place an intolerable strain on the public’s perception
of the military justice system?
United States v. Proctor, 80 M.J. 346–47 (C.A.A.F. 2020) (or-
der granting review).
II. Discussion
This Court reviews allegations of unlawful command in-
fluence, including allegations of the appearance of unlawful
command influence, de novo. United States v. Bergdahl, 80
M.J. 230, 234 (C.A.A.F. 2020); United States v. Barry,
78 M.J.
70, 77 (C.A.A.F. 2018). We accept as true the military judge’s
findings of fact on a motion to dismiss for unlawful command
influence unless those findings are clearly erroneous. United
States v. Stirewalt,
60 M.J. 297, 300 (C.A.A.F. 2004).
Article 37(a), UCMJ, prohibits, in relevant part, any per-
son subject to the Uniform Code of Military Justice from “at-
tempt[ing] to coerce or, by any unauthorized means, influence
the action of a court-martial . . . or any member thereof, in
reaching the findings or sentence in any case. See Rule for
Courts-Martial (R.C.M.) 104(a) (2016).3 This Court has previ-
ously recognized two types of unlawful command influence
3 All references in this opinion to Article 37, UCMJ, are to the
version of that article that existed prior to the enactment of the Na-
tional Defense Authorization Act for Fiscal Year 2020, Pub. L. No.
116-92, 133 Stat. 1198 (2019). This opinion takes no stance as to
what changes, if any, the 2019 amendments to Article 37, UCMJ,
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Opinion of the Court
that can arise in the military justice system: actual unlawful
command influence and the appearance of unlawful command
influence. Bergdahl, 80 M.J. at 234; Boyce,
76 M.J. at 247.
Unlike actual unlawful command influence, a meritorious
claim of the appearance of unlawful command influence does
not require prejudice to an accused. Boyce,
76 M.J. at 248. In-
stead, the prejudice is what is done to the “public’s perception
of the fairness of the military justice system as a whole.”
Id.
A significant factor in determining whether the unlawful
command influence created an intolerable strain on the pub-
lic’s perception of the military justice system is whether the
“appellant was not personally prejudiced by the unlawful
command influence, or that the prejudice caused by the un-
lawful command influence was later cured.”
Id. at 248 n.5.
Under this Court’s jurisprudence, an accused who asserts
there was an appearance of unlawful command influence
bears the initial burden of showing “some evidence” that un-
lawful command influence occurred. Bergdahl, 80 M.J. at 234
(internal quotation marks omitted) (citation omitted); Boyce,
76 M.J. at 249 (internal quotation marks omitted) (citation
omitted). Although this is a low burden, the evidence pre-
sented by the Appellant to establish his prima facie case must
consist of more than “mere allegation or speculation.” Berg-
dahl,
80 M.J. at 234 (internal quotation marks omitted) (quot-
ing Boyce,
76 M.J. at 249).
If the accused presents “some evidence” of unlawful com-
mand influence, “the burden shifts to the government to prove
beyond a reasonable doubt that either: (a) the ‘predicate facts
proffered by the appellant do not exist,’ or (b) ‘the facts as pre-
sented do not constitute unlawful command influence.’ ” Id.
(citation omitted). If the government fails to rebut the ac-
cused’s factual showing, it may still prevail if it proves:
[B]eyond a reasonable doubt that the unlawful com-
mand influence did not place an intolerable strain
upon the public’s perception of the military justice
system and that an objective, disinterested observer,
fully informed of all the facts and circumstances,
require with respect to our appearance of unlawful command influ-
ence jurisprudence.
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United States v. Proctor, No. 20-0340/AF
Opinion of the Court
would not harbor a significant doubt about the fair-
ness of the proceeding.
Id. (alteration in original removed) (internal quotation marks
omitted) (citation omitted).
A. Some Evidence
We conclude that Appellant established “some evidence”
of unlawful command influence. Appellant argues that Lt Col
MS improperly attempted to influence the outcome of Appel-
lant’s court-martial by discouraging the airmen in his squad-
ron from supporting Appellant, either by writing character
letters or testifying on his behalf. Although we do not know
the precise details of what Lt Col MS said during his com-
mander’s call, the facts that are known are sufficient to estab-
lish a prima facie case that goes beyond mere allegation or
speculation.
First, Lt Col MS stated that part of the reason he dis-
cussed his “NCO problem” on the call was because of Appel-
lant’s misconduct and other circumstances surrounding his
case. As noted by the AFCCA, Appellant was among the un-
named NCOs who were the focus of Lt Col MS’s remarks,
something that members of the squadron who knew Appel-
lant would recognize. Proctor, 2020 CCA LEXIS 196, at *37–
38, 2020 WL 2991773, at *12–13. Although the original
charges against Appellant had been dismissed without preju-
dice at the time of the commander’s call, Lt Col MS knew that
he was going to prefer new charges against Appellant, and in
fact did so about a week later.
Second, it is undisputed that Lt Col MS told a story about
his decision to do exactly what Appellant claims Lt Col MS
wanted all of the airmen in the squadron to do: decline to
write a character letter on behalf of a fellow airman facing
disciplinary procedures. During the commander’s call, Lt Col
MS encouraged the squadron to support but not enable the
members of their squadron—such as Appellant—who might
be in trouble. The military judge concluded that these com-
ments were not intended to discourage the airmen from
providing character letters or testifying on Appellant’s behalf.
But Lt Col MS’s intent could have been misunderstood, and
the testimony from the motions hearing shows that at least
some of the airmen in the squadron understood there to be a
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Opinion of the Court
nexus between Lt Col MS’s remarks about not enabling NCOs
who might be in trouble and assisting in their defense.
Finally, none of the airmen from Appellant’s squadron
participated on his behalf during the sentencing phase of his
court-martial. Appellant offered four character letters, and
four witnesses (including two former airmen who served
alongside Appellant as security forces personnel at Schriever
Air Force Base) testified on Appellant’s behalf, but no mem-
ber of Appellant’s squadron provided a letter or testified.
Putting these facts together—Lt Col MS’s comments
about not writing a character letter, how some airmen under-
stood those comments, and the lack of support for Appellant
during sentencing from any of the airmen in his squadron—
we agree that Appellant presents a plausible theory of unlaw-
ful command influence that rises beyond mere speculation.
We therefore conclude that Appellant established “some evi-
dence” of unlawful command influence.
B. No Intolerable Strain on the
Military Justice System
Once an appellant has shown “some evidence” of unlawful
command influence, the government has three separate
means of rebutting the accused’s claim. Like the court below,
we do not consider the first two—(1) that “the predicate facts
proffered by the appellant do not exist,” or (2) “the facts as
presented do not constitute unlawful command influence”—
because we conclude that the case can be resolved under the
third. Bergdahl, 80 M.J. at 234 (internal quotation marks
omitted) (quoting Boyce,
76 M.J. at 249). Despite there being
some evidence of unlawful command influence, we are confi-
dent, beyond a reasonable doubt, that such influence “did not
place an intolerable strain upon the public’s perception of the
military justice system and that an objective, disinterested
observer, fully informed of all the facts and circumstances,
would not harbor a significant doubt about the fairness of the
proceeding.”
Id. (alteration in original removed) (internal
quotation marks omitted) (citation omitted). When we look at
the record as a whole, we conclude that although some of
Lt Col MS’s comments during the commander’s call may have
been unwise—at least without additional comments that
would have made it clear that he did not mean to suggest that
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Opinion of the Court
the airmen should not assist Appellant during his court-mar-
tial—“an objective, disinterested observer, fully informed of
all the facts and circumstances, would not harbor a significant
doubt about the fairness of the proceeding.” Id. (alteration in
original removed) (internal quotation marks omitted) (cita-
tion omitted).
First, this is a case where Appellant’s allegations of un-
lawful command influence were raised immediately and fully
litigated by his defense counsel before the military judge.
Lt Col MS conducted his commander’s call on August 7, 2017.
Less than three months later, on October 31, 2017, Appel-
lant’s defense counsel filed a motion seeking the dismissal of
Appellant’s charges pursuant to Article 37, UCMJ. The mili-
tary judge conducted a motions hearing on August 20, 2018,
providing Appellant with the opportunity to call witnesses
and present evidence in support of his claim of unlawful com-
mand influence. Despite the fact that Appellant’s defense
counsel had ten months to prepare for the motions hearing,
the record includes no evidence that any airman refused to
testify or write a character letter in support of Appellant for
sentencing. None of the witnesses at the hearing—including
those called by Appellant—stated that Lt Col MS’s comments
changed their mind about supporting Appellant. In the ab-
sence of any direct evidence from the motions hearing that
supports Appellant’s assertion that Lt Col MS’s comments
during the commander’s call discouraged his fellow airmen
from supporting him (despite Appellant’s obvious incentive to
discover and present any such evidence), we do not believe
that Appellant’s speculation about why his fellow airmen de-
clined to support him is sufficient to establish an “intolerable
strain” on the military justice system.
Second, the alleged causal connection between Lt Col MS’s
comments at the commander’s call and the level of support
Appellant received from his squadron during his court-mar-
tial is tenuous at best. The commander’s call was a regularly
occurring event that had been scheduled months ahead of
time, not a response to any of the events related to Appellant’s
misconduct. During the call, Lt Col MS never mentioned Ap-
pellant by name or specifically referenced any of his miscon-
duct. And, as discussed above, Appellant was not the only
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Opinion of the Court
NCO in the squadron who was having problems. Neverthe-
less, Appellant now asserts that Lt Col MS “intentionally set
out to deter his subordinates from vocalizing support for Ap-
pellant.” But, the military judge expressly found that there
was no evidence to support this allegation, a finding that we
do not believe to be clearly erroneous. While it is true that
Lt Col MS stated that he had Appellant’s conduct in mind
when discussing the squadron’s “NCO problem,” he also
stated that Appellant’s issues were only one part of a broader
trend of NCO misconduct. Again, we find no reason to as-
sume, absent any direct evidence, that the airmen in Appel-
lant’s squadron understood Lt Col MS’s instruction to sup-
port, but not enable their fellow airmen to be an order (or even
a request or a suggestion) not to write a character letter on
Appellant’s behalf for a court-martial proceeding that would
not take place until over a year later.
Third, we cannot disregard the fact that over a year
passed between Lt Col MS’s commander’s call and the start
of the trial on the merits in Appellant’s court-martial, and
that during that time Lt Col MS permanently relocated from
Colorado Springs, Colorado to Charleston, South Carolina.
He left the squadron on June 28, 2018, almost two months
before the trial on the merits in Appellant’s court-martial be-
gan on August 23, 2018. Given the passage of time between
the two events, the lack of any supporting evidence, and the
fact that Lt Col MS had permanently departed from Appel-
lant’s squadron months before Appellant’s court-martial be-
gan, we cannot conclude that Lt Col MS’s comments pre-
vented any airmen from writing Appellant a character letter
who otherwise intended to do so.
Finally, we underscore that there is no reason to believe
anything said by Lt Col MS had an effect on the outcome of
this case. Appellant only alleged the appearance of unlawful
command influence at the sentencing phase, so there is no
reason to question his findings of guilt. And during the sen-
tencing phase, it is not the case that Appellant had no sup-
port. Four people wrote character letters on Appellant’s be-
half, and four witnesses testified on his behalf during the
sentencing phase. Two of those witnesses were former secu-
rity forces personnel who served with Appellant at Schriever
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Opinion of the Court
Air Force Base, exactly the kind of witness that Appellant as-
serts that he was denied by Lt Col MS’s comments.
Although Appellant argues that his ability to present his
sentencing case was hindered, the panel gave Appellant much
of what his defense counsel asked for during sentencing.
Appellant faced a maximum sentence of one year
confinement, two-thirds forfeiture of pay for a year, reduction
to E-1, and a bad-conduct discharge. Appellant’s defense
counsel urged the panel to reject confinement, telling them
that it “accomplishes nothing” and suggesting alternatives
such as confinement to base and hard labor. The panel
apparently agreed, declining to sentence Appellant to any
form of confinement. The panel also rejected the
Government’s requests for forfeitures and to take all of
Appellant’s stripes. In the end, the panel sentenced Appellant
to hard labor without confinement for three months,
reduction of grade to E-3, and a bad-conduct discharge.
In light of these facts, we conclude that there would be no
basis for an impartial observer to believe that Appellant’s sen-
tence was affected by Lt Col MS’s statements during the com-
mander’s call or was otherwise unfair.
III. Conclusion
Deciding whether some evidence of unlawful command in-
fluence created an intolerable strain on the public’s percep-
tion of the military justice system is a fact-intensive inquiry.
Here, based on the totality of the circumstances, and in the
absence of any evidence that an airmen’s decision to support
or not support Appellant was affected by Lt Col MS’s com-
ments, we conclude, beyond a reasonable doubt, that “an ob-
jective, disinterested observer, fully informed of all the facts
and circumstances, would not harbor a significant doubt
about the fairness of the proceeding.” Bergdahl, 80 M.J. at
234 (alteration in original removed) (internal quotation
marks omitted) (quoting Boyce, M.J. 76 at 249). Accordingly,
we affirm the decision of United States Air Force Court of
Criminal Appeals.
14
United States v. Proctor, No. 20-0340/AF
Chief Judge STUCKY, with whom Judge OHLSON joins,
dissenting.
I agree with the majority that Appellant successfully
raised “some evidence” of unlawful influence. I part ways,
however, with their conclusion that a fully informed observer
would not harbor significant doubt about the fairness of Ap-
pellant’s sentencing proceeding.
Appellant’s squadron commander, Lieutenant Colonel (Lt
Col) MS explicitly drew a connection between airmen writing
a letter in support of a troubled noncommissioned officer
(NCO) and the trajectories of their own careers, and multiple
members of Appellant’s unit questioning their futures in the
Air Force if they wrote such letters for Appellant. Since the
Government failed to make an effort to cure this message or
show that no witnesses were dissuaded from testifying, Ap-
pellant has established the appearance of unlawful influence,
and I would reverse.
Depriving an accused of favorable character witnesses can
constitute unlawful influence. See United States v. Thomas,
22 M.J. 388, 396–97 (C.M.A. 1986). In Thomas, at multiple
briefings with his subordinates, a major general stated his
displeasure with commanders who, after recommending that
an accused be tried by “a court-martial authorized to adjudge
a punitive discharge,” nonetheless testified to the accused’s
character and recommended the convicted soldier remain in
the army.
Id. at 391–92. Our predecessor Court determined
that the commander’s comments “were later interpreted, or
misinterpreted, to reflect an intent that [anyone] from an ac-
cused’s unit[] should not give favorable presentencing testi-
mony on behalf of an accused.”
Id. at 392. As a result, the
Court decided that the comments amounted to unlawful in-
fluence. I believe a similar “interpretat[ion], or misinter-
pretat[ion]” happened here.
Lt Col MS admitted that he had Appellant in mind when
he made the statements at issue during the commander’s call
and that he “felt like [he] had to talk about things without
talking about them.” Apparently, the timing of these com-
ments led several of his NCOs to also believe Lt Col MS’s com-
ments were targeting Appellant’s situation.
United States v. Proctor, No. 20-0340/AF
Chief Judge STUCKY, dissenting
Lt Col MS’s general message was to “support, but do not
enable” fellow airmen. He told a story, chronicling his own
experiences as a staff sergeant (SSgt). He confessed that he
had declined to provide a character letter for another airman
because of what he perceived to be his duty to the Air Force,
and the negative consequences that could follow from “stick-
ing [his] neck out there” for someone in trouble. He indicated
that had he done so, his commander would have “question[ed]
[his] judgment” and might have declined to send him to mili-
tary police investigator school.
Lt Col MS drew a line between what he considered ac-
ceptable and unacceptable conduct and, as an example of this
distinction, he told a story about when he did not write a char-
acter letter for a fellow airman. He explained how writing one
could have had negative consequences for his job and his com-
petency in the eyes of his commander.
But Lt Col MS also made this association explicit in con-
nection with support for Appellant. During the investigation
of Appellant, SSgt MJ made a statement to law enforcement
that “he thought that the unit and the Air Force were after
[Appellant] and he wasn’t that bad.” When he read this com-
ment, Lt Col MS asked another NCO, “Sergeant, what’s going
on with [SSgt MJ]? I mean, he’s one of my best NCOs. In fact,
just this morning I just signed a letter of recommendation for
him to go be an FTAC guy,1 and it kind of just shocked me
that I read that.” Lt Col MS admitted that this “probably got
back” to SSgt MJ. SSgt MJ expressed no more support for Ap-
pellant and even avoided trial defense counsel’s calls.
At least one NCO thought the takeaway of the com-
mander’s call was, “[i]f you’re supporting an NCO that’s in
trouble, you might want to rethink your career. . . . then it
might put you in a negative light also, or you might be looked
at as the problem.” Senior Airman RE stated that if he were
1 An FTAC is a First Term Airmen Course representative who
helps airmen arriving from technical school transition to the oper-
ational Air Force. U.S. Air Force, First Term Airmen Courses receive
curriculum overhaul, https://www.af.mil/News/Article-Display/Ar-
ticle/1185635/first-term-airmen-courses-receive-curriculum-over-
haul/ (last visited June 2, 2021).
2
United States v. Proctor, No. 20-0340/AF
Chief Judge STUCKY, dissenting
planning on staying in the Air Force for twenty years (as op-
posed to the one year and nine months remaining on his en-
listment), then he would rethink whether to write a character
letter for Appellant, as he “wouldn’t want to rub my leader-
ship the wrong way.”
This is problematic. These NCOs expressed a belief that
those in power might look unfavorably on them if they wrote
a letter in support of Appellant. As Lt Col MS explained, their
careers might be affected if they “[stuck their] neck[s] out” for
an airman in trouble. And what constituted “sticking your
neck out”? Writing a character letter.
Additionally, SSgt AG testified that though he did not
“feel like he could not write, if asked, a character letter for
[Appellant],” he nevertheless “walked away from [Lt Col MS’s
commander’s call] believing that [Lt Col MS] was saying that
if you supported an airman or NCO such as [Appellant] who
is facing a court-martial then you needed to rethink your
choice of serving in the United States Air Force.” He clarified
to the military judge that his takeaway from the call was that
“support of airmen such as [Appellant] should indicate a re-
flection of your career.” He stated that he did not fear punish-
ment, but that if they supported Appellant, they “should re-
think their career choice.” SSgt AG also indicated that
multiple times he asked if Lt Col MS would be in the room
when he testified, as “it’s a little hard to say what I say when
there’s somebody in a position of power over me specifically in
that room.” (Emphasis added.)
Finally, the mere absence of Lt Col MS from the unit at
the time of sentencing is not enough, in my mind, to cure the
damage. As detailed above, several NCOs believed that a com-
mander might look unfavorably on a character letter for a
troubled airman. Their whole concept of what is appropriate
in the Air Force was tainted by that commander’s call. It
wasn’t just that Lt Col MS might punish them—but that if
they dared to write a letter, it reflected poorly on their fitness
for duty. Indeed, if they wrote a letter, they might want to
rethink their career; the subtext being that good NCOs do not
“stick[ their] neck[s] out” for those in trouble. Desiring to be
good NCOs, it is understandable that no one who was at the
commander’s call wrote a letter.
3
United States v. Proctor, No. 20-0340/AF
Chief Judge STUCKY, dissenting
The majority recognizes that “a meritorious claim of the
appearance of unlawful command influence does not require
prejudice to an accused. Instead, the prejudice is what is done
to the public’s perception of the fairness of the military justice
system as a whole.” United States v. Proctor, __ M.J. __, __ (9)
(C.A.A.F. 2021) (internal quotation marks omitted) (citations
omitted). Nevertheless, it implies Appellant failed to carry his
burden because he was unable to produce any evidence that
any airman had refused to testify or provide a character state-
ment. I believe this misstates the burden of proof.
Once the accused meets the “some evidence”
threshold, the burden shifts to the government to
prove beyond a reasonable doubt that either: (a) the
predicate facts proffered by the appellant do not ex-
ist, or (b) the facts as presented do not constitute un-
lawful command influence. If the government can-
not succeed at this step, it must prove beyond a
reasonable doubt that the unlawful command influ-
ence did not place an intolerable strain upon the
public’s perception of the military justice system and
that an objective, disinterested observer, fully in-
formed of all the facts and circumstances, would not
harbor a significant doubt about the fairness of the
proceeding.
United States v. Bergdahl, 80 M.J. 230, 234 (C.A.A.F. 2020)
(alteration in original removed) (internal quotation marks
omitted) (citation omitted). It is the Government’s duty to
prove beyond a reasonable doubt that that an objective,
disinterested observer would not harbor significant doubt
about the fairness of the proceedings. This the Government
failed to do.
Moreover, Appellant has presented significant indirect ev-
idence of the chilling effect of Lt Col MS’s words. Appellant
received favorable witness testimony from members of other
units, but none from his current unit—even those who had
expressed support for him earlier in the court-martial pro-
cess. Multiple members of Appellant’s current unit testified
that they were concerned with how support for Appellant
would reflect on their career. While they thought they could
testify for Appellant, I am concerned with the lingering effects
of Lt Col MS’s words, and more importantly, with the strain
4
United States v. Proctor, No. 20-0340/AF
Chief Judge STUCKY, dissenting
they put on the public’s perception of the military justice sys-
tem. Lt Col MS indicated that whom the NCO’s offer charac-
ter letters for reflected on their own fitness and character.
Even though the sentencing proceeding did not take place
until a year after Lt Col MS’s statements, the Government
has not shown that the effect of his words had diminished or
that he or anyone did anything to ameliorate the effect of his
words on his squadron.2 By connecting his NCOs’ support of
Appellant to their fitness for duty, Lt Col MS interfered with
Appellant’s ability to produce favorable sentencing witnesses
from his current unit. The Government failed to prove beyond
a reasonable doubt that this interference did not put an intol-
erable strain on the public’s perception of the military justice
system and amount to apparent unlawful influence. There-
fore, I respectfully dissent.
2 The majority states, “The military judge conducted a motions
hearing on August 20, 2018, providing Appellant with the oppor-
tunity to call witnesses and present evidence in support of his claim
of unlawful command influence.” Proctor, __ M.J. at __ (12). How-
ever, the military judge issued her unlawful command influence
ruling in February 2018. There is no indication in the joint appen-
dix or the parties’ briefs that the military judge revisited the un-
lawful command influence issue in August 2018.
5
