Articles Posted in New Cases

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.

 

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think.  You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea.  The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies.  I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted.  But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently.  Message to TC, you have a duty to your client to protect us from an errant judge.  You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.

For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder.  In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense.  Because of the court’s resolution of these errors they did not address the remaining five.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside.  Charge II and its sole specification (false official statement) are dismissed with prejudice.  A rehearing on the remaining charges is authorized.”

1.  On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”

2.  The military appellate courts have been taking a hard look at the issue of what is or isn’t a “official statement” for purposes of a UCMJ prosecution at court-martial.  The NMCCA has evaluated the facts in Brown’s case and determined that the circumstances surrounding his alleged false statements were not official.

 While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant.  But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention.  We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.

3.  The more important decision of the court related to errors in the admission of adverse character evidence.  Essentially the prosecution offered and the military judge admitted a number of allegations about Brown’s character that is best described as evidence of predisposition.  Under the circumstances of this case predisposition evidence is inadmissible.

This case illustrates several points.

1.  The defense must be alert and object to efforts by the prosecution to adduce improper character evidence.  In this case the military defense counsel do a decent job at trial at objecting and preserving the issues.

2.  The prosecution has to be careful in seeking to prove guilt by offering inflammatory character information.  When they do that they risk taking a winnable case and making appellate issues.

The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page).  The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF:  We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

The first step in CAAF’s analysis was to decide that – yes – the evidence was legally insufficient for the finding of guilty. CAAF discussed and affirmed the obvious, that the trial counsel had failed to have evidence admitted showing the underlying drug which comprised the ecstasy in this case was on the controlled substances lists.  “In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.”  Slip op. at 8.

The court then turns to the judicial notice issue and immediately “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.”  Slip op. at 10.  The court cites to a SCOTUS case, the Rules Advisory Committee Notes, and its own case of United States v. Williams, 17 M.J. 207 (C.M.A. 1984).

The court states the problem that AFCCA “took the “extraordinary step” of taking judicial notice of an element not proven by the Government.”  Slip op. at 11.  Such a step is error and is not justified because there was a failure of notice and opportunity to be heard and the AFCCA judicially noted an element of the offense. Id.

CCA’s and CAAF may still take appellate judicial notice.  Future litigation, if trial counsel continue to fail will likely be focused on what the court means with the statement:

a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.

Similar to what the court said thirty years ago in Williams:

Judicial notice is a procedure for the adjudication of certain facts or matters without the requirement of formal proof. It cannot, however, be utilized as a procedure to dispense with establishing the government’s case.

The court relied heavily on the due process issue and Williams.  Williams was a case where the government failed to introduce or get judicial notice of a regulation banning the sale of marijuana.

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date?  Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause.  See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Here is Prof. Colin Miller TG’s blog on the retroactive application of FRE 413-414.

In addition to oral argument in Vazquez (link to argument here), the court issued several opinions of relevance to military trial and appellate practitioners:  what are the “rules” and standards for IAC in regard to pretrial negotiations.

Lafler v. Cooper and Missouri v. Frye.

the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.

——————-

the Court vacated the decision of the Sixth Circuit and remanded the case for further proceedings. Also by a vote of five to four, the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.

h/t SCOTUSBlog  for the above quick summaries.

Here is the lead in to Frye by Justice Kennedy.

The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel. See Strickland v. Washington, 466 U. S. 668, 686 (1984).  This case arises in the context of claimed ineffective assistance that led to the lapse of a
prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.  The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.  If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance.  Other questions relating to ineffective assistance with respect to plea offers, including the question of proper remedies, are considered in a second case decided today. See Lafler v. Cooper[.]

Neither of the two cases relate to Denedo/Padilla or Miller issues.

The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question.

Frye Slip op. at  8.

This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.

Frye Slip op. at 9.

I don’t know about others, but I’ve always considered this to be the rule for courts-martial.  I can’t see how you can properly represent an  accused and not pass on PTAOs that have originated from the government.  Here the counsel didn’t pass on the offer.  The case is remanded for the appellant to show prejudice:  that he would have accepted the offer, it wouldn’t have been cancelled, and the judge would have accepted the plea.  This error ought to be reasonably infrequent.

Lafler is the harder case.  The appellant was advised of the deal.  But on the advice of counsel rejected the deal, went to trial, and got a heavier sentence.  Strickland’s two prong analysis applies.  It appears the parties agreed that the counsel’s advice was so wrong to be IAC.  Lafler, slip op. at 1.  That means the issue was how to apply Strickland and prejudice.  The court went into a lengthy discussion of the potential remedies but ultimately “remanded for further proceedings consistent with this opinion.”

I see Lafler generating some post-trial litigation – and the potential for a quagmire.  Does counsel provide IAC when she recommends turning down a PTA prior to the 32?  Or does the IAC have to relate to a PTA that is closer in time to the trial when the investigation is complete, there has been sufficient discovery, and there has been a fuller case development?  In other words how much information does the defense counsel have to have to properly advise on a deal.  Keep in mind that the government is usually pretty restrictive on discovery in the early stages of a case.  How much extra time is prejudicial.  In Lafler the appellant was sentenced to 3.5 times more confinement.  What if it’s a SPCM.  Counsel recommends turning down an offer for four months and the accused is convicted and sentenced to six (a 50% increase)?  What if it’s a GCM.  Counsel recommends turning down an offer of one year for pleas to a sexual assault, fraternization, providing alcohol, adultery, and 107.  The accused is then acquitted of the sexual assault (so no registration), is convicted on everything else, and then gets 18 months (a 50% “penalty” for turning down the deal)?   Can something like this not happen in courts-martial?

Here is how the media is casting the decisions.

Defendants who receive deficient or absurdly bad plea bargaining advice from their lawyers have had their constitutional rights violated and may have their sentences thrown out[.]

Huffington Post

The U.S. Supreme Court said for the first time that criminal defendants have a constitutional right to a competent lawyer when they are offered a chance to plead guilty in exchange for a reduced sentence.

Voting 5-4, the justices today sided with two men who say they received inadequate legal advice. One said his lawyer never told him of a plea offer, and the other said his attorney convinced him he couldn’t be convicted of intent to murder because the victim was shot below the waist.

Bloomberg News

A divided Supreme Court on Wednesday laid out new standards for criminal plea bargains, saying defense lawyers must do a competent job advising and informing their clients of prosecutors’ offers of less prison time for convictions and guilty pleas.

Justice Antonin Scalia, in a rare move, dissented aloud from the bench, calling the decisions "absurd" and warning courts would be flooded with appeals from criminals now claiming their plea bargain rights were violated, despite the fact that there is no legal right to a plea bargain.

Associated Press

The NMCCA has issued a published opinion in United States v. Walker.  This case began its appellate life with a death penalty sentence.

In 2008, this court issued an opinion, United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008), in which we affirmed one of the findings of guilty to violating Article 118, UCMJ, except for the language “with premeditation,” set aside the finding of guilty to the armed robbery specification, and affirmed the findings of guilty for the remaining charges and specifications.  We set aside the sentence and authorized the CA to hold a rehearing on the armed robbery and the excepted language as it pertained to the one murder specification, and on sentencing.  Id. at 757.  At the conclusion of the findings rehearing, a general court-martial composed of officer and enlisted members found the appellant guilty of armed robbery and premeditated murder.  The appellant was sentenced for all of his offenses to confinement for life, a dishonorable discharge, reduction to pay grade E-1, and a reprimand. 

I take this to be Life, not LWOP; which NMCCA has affirmed.

After carefully considering the record of trial and the parties‟ briefs, we conclude that this court erred in our 2008 opinion to the extent that we authorized a partial rehearing on the sole element of premeditation for the one Article 118, UCMJ, specification.  That portion of the proceeding violated the
appellant‟s constitutional protection against Double Jeopardy.  Accordingly, we set aside the finding of guilty from the rehearing as to Specification 1 under Charge III, and reaffirm our earlier finding of guilty of the lesser included offense of unpremeditated murder.  We find that the remaining findings, including the finding of guilty at the rehearing of armed robbery and the findings affirmed in our 2008 opinion,

NMCCA has decided United States v. Walton.  In that case they dismissed an adultery and indecent language conviction based on Fosler, without discussion of the issue.  I sort of assume they feel comfortable that Lansford,  Gibson (which I posted here) and Leubecker (which I posted here) sufficiently explain NMCCA’s thinking on how to deal with Fosler.

However, I would note that Walton was a fully contested rape case which resulted in a NG on the rape.  I was the defense counsel (and no I didn’t file a motion).  We were too busy with the false rape allegation.  (The “rape victim” called her friend after the sex, appeared to say she liked it, “and would do it again.”  When she and accused were investigated for alcohol and fraternization the “victim” admitted consensual sex, or words to that effect.  After she was advised of a potential summary court-martial and shortly after the erroneous (IMHO) sexual assault training, the “victim” claimed rape.)

Anyway, the point about NMCCA’s decision is that it was a contested case, not a guilty plea case like Lansford, Gibson,and Leubecker, and the issue wasn’t raised at trial.  It appears that NMCCA will rely on the same rationale as they have expounded for guilty plea cases?  Keep in mind that this was a clear fraternization case, albeit beginning as a false rape allegation.

I was also interested to hear during the Dominique oral argument the other day, one of the appellate judges asked the defense counsel whether they (NMCCA) has been deciding the Fosler trailer cases correctly.  Dominique has a Fosler issue; so my perception that the judge was polling the audience (perception from the tone and words) was likely just that, my own perception.  Apparently a similar question has been asked in a prior oral argument to which the appellate counsel had apparently said ‘no.’

CAAF has decided three cases, Blazier of course being one of them.  I was the trial defense counsel in the case so no comment from me on the case so far.  Here is the brief for petitioner in Bullcoming v. New Mexico.  Professor Friedman has posted this at his excellent confrontationblog site.  I had anticipated CAAF might await a decision in Bullcoming.  But, in discussions with DMLHS last night it appeared that Bullcoming wouldn’t likely be argued until early 2011, and there are a potential lot of military cases building up.

United States v. Staton decided this issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING EVIDENCE THAT APPELLANT MAY HAVE ATTEMPTED TO KILL OR INJURE THE ORIGINAL TRIAL COUNSEL.

The court comes to a conclusion that, “We conclude that both in concept and in the circumstances of this case, the evidence of prosecutor intimidation raises an inference from which a factfinder could reasonably infer consciousness of guilt.”  It did not hurt the court’s analysis that the military judge took steps to give a limiting instruction.

United States v. White decided issues of relevance.

There are several decisions:

United States v. Sanchez is back with the same result.  There was a time when the SJAR used to be a long and complete and thorough briefing sheet to the commander acting post-trial.  Because of a very very few lost cases on post-trial delay and the amount of work required the SJAR has developed into a “I read the case, approve it.”  Thus the “advice” has been moved behind closed doors.  Can anyone imagine that when a CO wants to talk about granting clemency on a case she doesn’t call in the SJA for advice which, without a written document, is unknown.  Yes, we have gotten here because of all of the litigation over the years because of inaccurate or erroneous advice.  So, rather than enforce giving “balanced” (see Sanchez), accurate, and correct advice we now have a situation where the CO gets as much unbalanced, potentially biased, and potentially wrong information as the SJA is able to give.  What a cure.  But the defense does have a role to play in this.

It seems to me that trial defense counsel should go back to the earlier SJAR forms and create a macro document similar to that old SJAR.  A tasker for the chief defense counsels at their next annual meeting.  Have the paralegal go through the ROT and other documents and basically fill in the data.  The CO isn’t going to read through the ROT and the SJA can’t be relied upon to tell her the good stuff.  For that matter, why not start the document prior to trial.  That way you can prepare for trial better.  You are already working on the I-Love-Me book, and the paralegal is often working on the index, so why not go a little further.  The AF has a good start with their PDS that’s prepared for court.

United States v. Cudjoe.

Before this Court, Appellant has assigned two errors: (1) the military judge erred by failing to consider dismissal of two of the three charges that he determined were unreasonably multiplicious after the case on findings; and (2) this Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c). We reject the first issue, and grant a small measure of sentence relief on the second.

Here’s the graveman of the case:

The evidence of all three offenses was to the effect that Appellant applied for and received a CapitalOne credit card in the name of [] a Coast Guard petty officer for whom Appellant had made an identification card in the course of his duties, and used the credit card to buy merchandise in stores. Ultimately, CapitalOne was not paid for charges in the amount of $1,148.60 on this credit card account, taking a loss of that amount.

Here’s the field test:

The Court of Appeals for the Armed Forces “ha[s] endorsed a five-part test for determining whether the Government has unreasonably multiplied charges:

  “(1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications?

  “(2) Is each charge and specification aimed at distinctly separate criminal acts?

  “(3) Does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality?

  “(4) Does the number of charges and specifications unreasonably increase the appellant’s punitive exposure?

  “(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?”

United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) (citing United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)).

I think I would add (6)  Did the government deliberately or unintentionally charge the greater and a lesser offense separately, to be more clear on a pretrial checklist; especially in light of Jones.

United States v. Bond.  There’s a little prior history to the case not relevant to the field.  In additional Judge McTague dissented.  Expect to see this case certified.

The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy.

An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted.

Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation.

The Government asserts in its new brief that our 16 March decision granted equitable relief, which CAAF has declared to be beyond the power of a Court of Criminal Appeals (CCA). United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010). Appellant, meanwhile, continues to argue that the offenses of which he was found guilty were minor ones for which he had already been punished, and therefore the convictions should be set aside.

Here’s the graveman of the case:

Subsequently, Appellant was charged with Rape, arising from alleged conduct following a party while in THETIS’s homeport of Key West, Florida, as well as the Barbados charges. Appellant’s motion to dismiss the Barbados charges for “prior jeopardy” (Appellate Ex. XXIII) was denied.1 Following a contested trial, members found Appellant not guilty of the most serious charge of Rape, and found him guilty of only the Barbados criminal conduct for which he had already received punishment at Captain’s Mast, with a difference. Specifically, he was found guilty of the same offenses of drunkenness and indecent language, but instead of the offense of attempted indecent assault, he was found guilty of assault consummated by battery.

The bottom line:

In short, none of the offenses of which he was found guilty at trial rises above the “minor” level on the basis of the maximum sentence [and looking at the whole case rather than specific charges]. Considering all the circumstances with due regard for the lack of intent to gratify his lust or sexual desires, we view the incident, as found by the court-martial, as minor.
This does not mean that trial on the three specifications was improper.

With a reference to United States v. Nerad, the court finds:

We do not think these findings of guilty should be approved. . . . In short, we believe our disapproval of the findings of guilty is within our power under Article 66, UCMJ, and Nerad. We will act accordingly.

And just to be sure:

In case our action is found to be unauthorized, we also find that a bad-conduct discharge is an inappropriately severe punishment for the offenses of which Appellant was found guilty.