This opinion is subject to revision before publication UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________ UNITED STATES Appellee v. Rodney B. BOYCE, Airman United States Air Force, Appellant No. 16-0546 Crim. App. No. 38673 Argued December 7, 2016—Decided May 22, 2017 Military Judge: Christopher F. Leavey For Appellant: James S. Trieschmann Jr., Esq. (argued); Captain Annie W. Morgan (on brief); Major Michael A. Schrama. For Appellee: Major Thomas J. Alford (argued); Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief). Judge OHLSON delivered the opinion of the Court, in which Chief Judge ERDMANN and Judge SPARKS joined. Judge STUCKY filed a separate dissenting opin- ion. Judge RYAN also filed a separate dissenting opin- ion. _______________ Judge OHLSON delivered the opinion of the Court. Contrary to Appellant’s pleas, a military panel with en- listed representation sitting as a general court-martial con- victed Appellant of one specification of rape on divers occa- sions and two specifications of assault consummated by a battery in violation of Articles 120 and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 928 (2012). The panel acquitted Appellant of one specification of rape and two specifications of assault. The panel sentenced Appellant to a reduction in grade to E-1, forfeiture of all pay and allowances, and confinement for four years. The military judge ruled that the convening authority could not approve the reduction in grade. Pursu- ant to that ruling, the convening authority approved only so much of the adjudged sentence as extended to the forfeiture and confinement. The United States Air Force Court of United States v. Boyce, No. 16-0546/AF Opinion of the Court Criminal Appeals affirmed the findings and granted a six day credit1 against the sentence in Appellant’s case. We granted review of the following issue: The Chief of Staff of the Air Force advised the conven- ing authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening au- thority’s subsequent referral of charges unlawfully in- fluenced by the threat to his position and career? United States v. Boyce, 75 M.J. 402, 402–03 (C.A.A.F. 2016). Following our review of the entire record, we conclude that an objective disinterested observer with knowledge of all the facts and circumstances would harbor a significant doubt about the fairness of the court-martial proceedings and therefore conclude that there is the appearance of un- lawful command influence in this case. We therefore reverse the findings and the sentence in this case without prejudice and return the case to the Judge Advocate General with a rehearing authorized. I. Background The underlying facts leading to the charges and convic- tions in this sexual assault case are not directly relevant to the issue before us. We therefore proceed only with a recita- tion of those facts that are pertinent to the unlawful com- mand influence allegation. During the relevant time period, Lieutenant General (Lt Gen) Craig A. Franklin was the commander of the Third Air Force. On February 26, 2013, Lt Gen Franklin used his clemency authority under Article 60, UCMJ, 10 U.S.C. § 860 (2012), to set aside the findings and sentence in the unrelat- ed case of United States v. Wilkerson. Wilkerson was a lieu- tenant colonel (Lt Col) in the Air Force and had been con- victed at court-martial of aggravated sexual assault. Lt Gen Franklin’s decision to set aside Wilkerson’s conviction was 1 One day of credit was for the reprimand Appellant received as nonjudicial punishment for a crime that he was later convicted of committing at his court-martial. The other five days of credit were for excessive post-trial delay without the showing of actual prejudice. 2 United States v. Boyce, No. 16-0546/AF Opinion of the Court against the advice of his Staff Judge Advocate (SJA), Colonel (Col) Joseph Bialke, who recommended clemency in the form of an adjusted sentence. In a March 12, 2013, letter to then-Secretary of the Air Force Michael B. Donley, Lt Gen Franklin sought to explain his decision in the Wilkerson case. He wrote: Obviously it would have been exceedingly less volatile for the Air Force and for me professionally, to have simply approved the finding of guilty. This would have been an act of cowardice on my part and a breach of my integrity. As I have previously stated, after considering all matters in the entire record of trial, I hold a genu- ine and reasonable doubt that Lt Col Wilkerson com- mitted the crime of sexual assault. Also on March 12, 2013, General (Gen) Mark A. Welsh III, who recently had been promoted to Chief of Staff of the Air Force, e-mailed Lt Gen Franklin, writing: “It’s going to be a little uncomfortable for awhile. Hang in there.” Lt Gen Franklin’s clemency action garnered considerable negative attention from Congress and the media.2 However, despite this backlash, Lt Gen Franklin continued to defend his Wilkerson decision. Indeed, he later tried to intervene on behalf of then-Lt Col Wilkerson in order to have his promo- tion to colonel approved upon his release from confinement. In a different case addressing sexual assault, United States v. Oropeza, Lt Gen Franklin explained his thought process prior to dismissing the charges in the Wilkerson case as follows: Yes, I thought about [my career advancement in the military] just knowing that this was probably going to get Congressional interest and the Senate, who con- firms GOs [general officers] for Three and Four Star billets, so whether or not I was going to go to another Three-Star Billet after this job, or maybe get a Four- Star billet, you know, I knew this would probably make this my last job potentially, so yeah, I knew this was going to have probably [sic] future impact on me. 2 A member of the Senate Armed Services Committee com- mented on Lt Gen Franklin’s decision to set aside the findings and sentence against Wilkerson, saying that commanders need to be held “accountable” for overturning sexual assault convictions. 3 United States v. Boyce, No. 16-0546/AF Opinion of the Court When asked if he had any regrets about his decision be- cause of the subsequent political “fallout,” Lt Gen Franklin replied, “No, I’ll tell you I am sleeping like a baby at nighttime. I made the right decision even amidst all the at- tacks.” On September 3, 2013, Lt Gen Franklin declined to refer charges against an airman in the case of United States v. Wright. This was done prior to trial and consistent with the recommendation of his SJA, Col Bialke. The charges in that case also involved sexual assault allegations. See 75 M.J. 501, 502 (A.F. Ct. Crim. App. 2015) (en banc). Shortly after Lt Gen Franklin dismissed the charges and specifications, then-Judge Advocate General of the Air Force, Lt Gen Rich- ard Harding, called Col Bialke regarding the Wright case. Id. at 503. Col Bialke said that Lt Gen Harding told him: “the failure to refer the case to trial would place the Air Force in a difficult position with Congress; absent a ‘smok- ing gun,’ victims are to be believed and their cases referred to trial; and dismissing the charges without meeting with the named victim violated an Air Force regulation.” Id. On December 20, 2013, Deborah Lee James was appoint- ed as Secretary of the Air Force. On December 23, 2013, Lt Gen Franklin read what he described as an article in which a senator indicated he would be retiring soon. On December 27, 2013, the Chief of Staff of the Air Force, Gen Welsh, tel- ephoned Lt Gen Franklin and informed him that the new Secretary had “lost confidence” in him and that he had two options: voluntarily retire from the Air Force at the lower grade of major general, or wait for the Secretary to remove him from his command in the immediate future. Three hours after this call, Lt Gen Franklin decided to retire. In his written retirement request, Lt Gen Franklin stated: “My decisions as a General Court Martial [sic] convening author- ity [(GCMCA)] have come under great public scrutiny,” and “media attention … will likely occur on subsequent sexual assault cases I deal with.” On the same day that Lt Gen Franklin was contacted by the Chief of Staff, he received the referral package regarding Appellant’s case, which included sexual assault charges. On January 6, 2014, Lt Gen Franklin referred Appellant’s case to a general court-martial. Two days later he publicly an- 4 United States v. Boyce, No. 16-0546/AF Opinion of the Court nounced that he would step down from his position as Third Air Force Commander on January 31, 2014, and would offi- cially retire two months later. On January 28, 2014, Lt Gen Franklin was interviewed by Appellant’s defense counsel. The affidavit documenting this interview reflects that Lt Gen Franklin stated the fol- lowing: he decided to refer Appellant’s case “independently”; there “probably is an appearance of UCI [unlawful command influence] but I wasn’t affected by it”; and it “would be fool- ish to say there is no appearance of UCI.” On February 13, 2014, the Government provided an affi- davit to the trial court in response to a defense motion to dismiss all charges against Appellant due to unlawful com- mand influence. In this affidavit, Lt Gen Franklin stated: “Any comments by superior government officials, both civil- ian and military, had absolutely no impact on my decision- making as a convening authority,” and “I did not and would not allow improper outside influence to impact my inde- pendent and impartial decisions as a GCMCA.” However, he also conceded in the affidavit that his decision in the Wilker- son case “has been and continues to be a subject of substan- tial public controversy,” and noted that the charges which he had declined to refer in the Wright case “had been re- preferred by the Air Force District of Washington.” In ruling on the defense’s motion, the military judge stated that although the defense had met its initial burden of demonstrating that there was some evidence of unlawful command influence: [I]t had absolutely no impact on this particular case. There could be an argument, in fact, that General Franklin may be the most bombproof of any convening authority out there simply because of … his retire- ment, and the fact that he has, on occasion, seemingly gone against the interests of others in the military. In his later written ruling, the military judge stated that the “Court is convinced beyond a reasonable doubt that there was no UCI or apparent UCI in [either] the accusato- rial or adjudicative phases of this proceeding.” On appeal, the Air Force Court of Criminal Appeals concurred with the military judge’s analysis. 5 United States v. Boyce, No. 16-0546/AF Opinion of the Court II. Applicable Law It has long been a canon of this Court’s jurisprudence that “[unlawful] [c]ommand influence is the mortal enemy of military justice.”3 United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). “Indeed,” as Chief Judge Everett noted in Thomas, “a prime motivation for establishing a civilian Court of Military Appeals was to erect a further bulwark against impermissible command influence.” Id. And im- portantly, our Court’s fulfillment of that responsibility “is fundamental to fostering public confidence in the … fairness of our system of justice.” United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006). Two types of unlawful command influence can arise in the military justice system: actual unlawful command influ- ence and the appearance of unlawful command influence. From the outset, actual unlawful command influence has commonly been recognized as occurring when there is an improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case. See United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991); see also United States v. Allen, 31 M.J. 572, 584 (N.M.C.M.R. 1990) (“Unlawful command influence … is im- permissible command control.”). As reflected below, howev- er, it took decades for this Court’s jurisprudence to define 3 The principal statutory provision prohibiting unlawful com- mand influence is Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2012), which states in pertinent part: “No person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial … or any member thereof.” The Sec- retary of the Air Force is not a person subject to the UCMJ, and it could be argued that it was her conduct—rather than the conduct of the Chief of Staff of the Air Force—that raised the issue of un- lawful command influence in this case. Nevertheless, we need not address the factual issue of who was the key actor in this case on the legal issue of whether improper influence by a civilian official not subject to the UCMJ may present a due process error of con- stitutional dimension, because the Government unequivocally conceded at oral argument that our jurisprudence pertaining to unlawful command influence applies in the instant case, and we deem it appropriate to accept that concession in the course of ana- lyzing the assigned issue. 6 United States v. Boyce, No. 16-0546/AF Opinion of the Court the contours of what constitutes a meritorious claim of an appearance of unlawful command influence. Initially our Court did not differentiate between actual unlawful command influence and the appearance of unlaw- ful command influence. Over the years, however, we have explored the distinctions between the two. The first known acknowledgment of the impropriety of an appearance of unlawful command influence arose in 1954. In a concurring opinion in United States v. Knudson, 4 C.M.A. 587, 598, 16 C.M.R. 161, 172 (1954) (Brosman, J., concurring in the result), Judge Brosman wrote: [T]he unfortunate circumstance that the convening authority had previously and openly damned one of these functionaries as an abuser of discretion gives the conduct of the trial an especially unpleasant aroma. Viewing the record as a whole, I am fortified in my be- lief that the appearance of “command influence” is vivid enough here to require reversal. (Emphasis added.) The first time that a majority of the Court of Military Appeals cited an appearance of unlawful command influence as a basis for reversing the conviction of a servicemember occurred ten years later. In United States v. Johnson, 14 C.M.A. 548, 551, 34 C.M.R. 328, 331 (1964), the Court stat- ed: In approaching a problem of this nature, the apparent existence of “command control,” through the medium of pretrial communication with court members, is as much to be condemned as its actual existence. As a matter of principle, any doubt in the matter must be resolved in favor of the accused. (Emphasis added.) The Court further stated, “The appearance, or the exist- ence, of command influence provides a presumption of prej- udice.” Id. (emphasis added). It took another three decades for the standard that we now use in determining whether there was an appearance of unlawful command influence to emerge. Once again, it was a separate opinion that led the way. Judge Wiss stated: 7 United States v. Boyce, No. 16-0546/AF Opinion of the Court One judge even went so far as to suggest [that] “[t]he practice of ranking appellate judges should be discon- tinued. In the absence of specific objective criteria, an objective, disinterested observer fully informed of the facts would entertain a significant doubt that justice was being done” and would perceive an appearance of command influence. United States v. Mitchell, 39 M.J. 131, 151 (C.M.A. 1994) (Wiss, J., concurring in part, dissenting in part, and concur- ring in the result) (alteration in original) (quoting United States v. Mitchell, 37 M.J. 903, 930 (N.M.C.M.R. 1993) (Reed, J., concurring in the result)).4 This language was adopted in a majority opinion four years later. See United States v. Calhoun, 49 M.J. 485, 488 (C.A.A.F. 1998) (“[We] decline to enshrine a right to private civilian counsel paid for by the Government unless an objective, disinterested ob- server, with knowledge of all the facts, could reasonably con- clude that there was at least an appearance of unlawful command influence over all military and other government defense counsel.” (emphasis added)). A further refinement of this Court’s jurisprudence re- garding the appearance of unlawful command influence oc- curred a few years later. Quoting United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979), and citing “‘the spirit of the Code,’” this Court in United States v. Stoneman favorably cited our previous observation that “‘[t]he appearance of un- lawful command influence is as devastating to the military justice system as the actual manipulation of any given tri- al.’” 57 M.J. 35, 42 (C.A.A.F. 2002). And importantly, in Stoneman we more explicitly explained the distinction be- tween actual unlawful command influence and the appear- ance of unlawful command influence: The question whether there is an appearance of unlaw- ful command influence is similar in one respect to the question whether there is implied bias, because both are judged objectively, through the eyes of the commu- nity…. Even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an “intolerable strain on public per- 4 The Navy-Marine Corps Court of Military Review acknowl- edged that some of this language was adapted from the case of United States v. Berman, 28 M.J. 615, 616 (A.F.C.M.R. 1989). 8 United States v. Boyce, No. 16-0546/AF Opinion of the Court ception of the military justice system.” See United States v. Wiesen, 56 MJ 172, 175 (2001). Id. at 42–43 (emphasis added) (citations omitted). Chief Judge Erdmann wove together the various strands of our jurisprudence on this topic a decade ago in United States v. Lewis, 63 M.J. 405, 413 (C.A.A.F. 2006). In doing so, he first stated that in order for a claim of actual unlawful command influence to prevail, an accused must meet the burden of demonstrating: (a) facts, which if true, constitute unlawful command influence; (b) the court-martial proceed- ings were unfair to the accused (i.e., the accused was preju- diced); and (c) the unlawful command influence was the cause of that unfairness. Id. Next, in regard to an appearance of unlawful command influence, Chief Judge Erdmann wrote: Congress and this court are concerned not only with eliminating actual unlawful command influence, but also with “eliminating even the appearance of unlawful command influence at courts-martial.” United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979).… [T]he “‘ap- pearance of unlawful command influence is as devas- tating to the military justice system as the actual ma- nipulation of any given trial.’” Simpson, 58 M.J. at 374 (quoting Stoneman, 57 M.J. at 42–43). Thus, “disposi- tion of an issue of unlawful command influence falls short if it fails to take into consideration … the ap- pearance of unlawful command influence at courts- martial.” Id. Whether the conduct of the Government in this case created an appearance of unlawful command in- fluence is determined objectively. Stoneman, 57 M.J. at 42. “Even if there was no actual unlawful command in- fluence, there may be a question whether the influence of command placed an ‘intolerable strain on public per- ception of the military justice system.’” Id. at 42–43 (quoting United States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)). The objective test for the appearance of unlawful command influence is similar to the tests we apply in reviewing questions of implied bias on the part of court members or in reviewing challenges to military judges for an appearance of conflict of interest. We focus upon the perception of fairness in the military justice system as viewed through the eyes of a reason- able member of the public. Thus, the appearance of un- 9 United States v. Boyce, No. 16-0546/AF Opinion of the Court lawful command influence will exist where an objec- tive, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding. Id. at 415 (alteration in original) (citations omitted). As can be seen from the above, unlike actual unlawful command influence where prejudice to the accused is re- quired, no such showing is required for a meritorious claim of an appearance of unlawful command influence.5 Rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.6 Consequently, consistent with Chief Judge Erd- mann’s opinion in Lewis, it is sufficient for an accused to demonstrate the following factors in support of a claim of an appearance of unlawful command influence: (a) facts, which if true, constitute unlawful command influence; and (b) this unlawful command influence placed an “intolerable strain” on the public’s perception of the military justice system be- cause “an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.” Id. (internal quotation marks omitted) (citation omitted). In light of these two factors, the following process ensues when an appellant asserts there was an appearance of un- 5 A determination that an appellant was not personally preju- diced by the unlawful command influence, or that the prejudice caused by the unlawful command influence was later cured, is a significant factor that must be given considerable weight when deciding whether the unlawful command influence placed an “in- tolerable strain” on the public’s perception of the military justice system. However, such a determination ultimately is not disposi- tive of the underlying issue of whether the public taint of an ap- pearance of unlawful command influence still remains. 6 We discern no tension between this standard and our holding in United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999), that “the alleged unlawful command influence [must have] a logical connection to the court-martial.” A conclusion that there was a “logical connection” to a court-martial is not the same thing as a conclusion that there was prejudice to the individual accused. Ra- ther, “logical connection” is merely a germaneness requirement. 10