Petition for Writ of Certiorari — William M. Hilton, Petitioner v. United States

ia

APPENDIX

TABLE OF CONTENTS

Court of Appeals for the Armed Forces

Order Denying Petition for Grant of

Review, United States v. Hilton, No.

25-0179/AF (Oct. 16, 2025) .................................. 1a

Court of Appeals for the Armed Forces

Opinion, United States v. Hilton, No.

ACM 40500 (Apr. 4, 2025) ................................... 2a

1a

United States Court of Appeals

for the Armed Forces

Washington, D.C.

United States,

Appellee

USCA Dkt. No. 25-0179/AF

Crim.App. No. 40500

v.

ORDER DENYING PETITION

William M.

Hilton,

Appellant

On consideration of the petition for grant of review

of the decision of the United States Air Force Court of

Criminal Appeals, it is by the Court, this 16th day of

October, 2025,

ORDERED:

That the petition is hereby denied.

For the Court,

/s/

cc:

Malcolm H. Squires, Jr.

Clerk of the Court

The Judge Advocate General of the Air Force

Appellate Defense Counsel (Bruzik)

Appellate Government Counsel (Liabenow)

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UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 40500

________________________

UNITED STATES

Appellee

v.

William M. HILTON

Lieutenant Colonel (O-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 4 April 2025

________________________

Military Judge: Sterling C. Pendleton.

Sentence: Sentence adjudged 24 March 2023 by GCM

convened at Ramstein Air Base, Germany. Sentence

entered by military judge on 13 July 2023: Dismissal,

confinement for 40 months, and a reprimand.

For Appellant: Captain Michael J. Bruzik, USAF;

Sean F. Mangan, Esquire; Frank J. Spinner, Esquire.

For Appellee: Colonel Steven R. Kaufman, USAF;

Colonel Matthew D. Talcott, USAF; Lieutenant

Colonel Thomas J. Alford, USAF; Lieutenant Colonel

J. Peter Ferrell, USAF; Lieutenant Colonel Jenny A.

Liabenow, USAF; Major Kate E. Lee, USAF; Major

Brittany M. Speirs, USAF; Major Jocelyn Q. Wright,

USAF; Mary Ellen Payne, Esquire.

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Before JOHNSON, RICHARDSON, and MASON,

Appellate Military Judges.

Judge MASON delivered the opinion of the court, in

which Chief Judge JOHNSON and Senior Judge

RICHARDSON joined.

________________________

This is an unpublished opinion and, as such,

does not serve as precedent under AFCCA Rule

of Practice and Procedure 30.4.

________________________

MASON, Judge:

The military judge found Appellant guilty, in

accordance with his pleas, of one specification of being

drunk on duty, in violation of Article 112, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 912, one

specification of unlawful entry, in violation of Article

129, UCMJ, 10 U.S.C. § 929, and three specifications

of conduct unbecoming an officer and gentleman, two

by exceptions, in violation of Article 133, UCMJ, 10

U.S.C. § 933. 1 Contrary to his pleas, a general courtmartial composed of members convicted Appellant of

the excepted language of one of the conduct

unbecoming specifications as well as one specification

of sexual assault, in violation of Article 120, UCMJ, 10

U.S.C. § 920. 2 The military judge sentenced Appellant

1 All references in this opinion to the Uniform Code of Military

Justice (UCMJ), the Rules for Courts-Martial (R.C.M.), and the

Military Rules of Evidence (Mil. R. Evid.) are to the Manual for

Courts-Martial, United States (2019 ed.).

2 Appellant was found not guilty of the excepted language of one

of the conduct unbecoming specifications; five specifications of

abusive sexual contact, in violation of Article 120, UCMJ; two

specifications of battery upon a child under the age of 16 and one

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to a dismissal, confinement for 40 months, and a

reprimand. Appellant requested the automatic

forfeitures of pay and allowances be waived while he

was in confinement. The convening authority took no

action on the findings or sentence and denied the

request to waive the automatic forfeitures.

Appellant raises four issues on appeal which we

have consolidated: (1) whether the military judge

erred by failing to grant relief under Rule for CourtsMartial (R.C.M.) 707 or Article 10, UCMJ, 10 U.S.C.

§ 810, for speedy trial violations; (2) whether the

findings of guilty for sexual assault and the excepted

language of conduct unbecoming are legally and

factually sufficient; (3) whether the military judge

erred by denying the defense request pursuant to Mil.

R. Evid. 615 to exclude the alleged victim from the

courtroom during the testimony of her daughter, also

an alleged victim but of a separate offense; and (4)

whether the military judge’s instruction on how to

consider evidence admitted over defense objection

pursuant to Mil. R. Evid. 413 was contrary to

established law. 3

Additionally, we specified the following issue (5)

and ordered briefing from the parties: whether

Appellant’s plea to conduct unbecoming an officer and

specification of assault consummated by a battery, in violation of

Article 128 UCMJ, 10 U.S.C. § 928; and one specification of

unlawful entry and one specification of pandering by inducing,

enticing or procuring an act of prostitution, in violation of Article

134, UCMJ, 10 U.S.C. § 934.

3 Appellant raises issues (3) and (4) in accordance with United

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

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gentleman for being drunk in the presence of

subordinates was provident.

Also, though not raised as an assignment of error,

we consider another issue (6): whether Appellant is

entitled to relief for facially unreasonable appellate

delay in accordance with United States v. Moreno, 63

M.J. 129 (C.A.A.F. 2006), or in the alternative, Article

66(d)(2). UCMJ, 10 U.S.C. § 866(d)(2).

We have carefully considered issues (1), (3), and

(4), and find they do not require discussion or relief.

See United States v. Matias, 25 M.J. 356, 361 (C.M.A.

1987). Regarding the specified issue (5), we find that

Appellant’s plea to conduct unbecoming an officer and

gentleman for being drunk in the presence of

subordinates was not provident. Moreover, we find

that we can reassess the sentence and do so below.

Regarding the remaining issues, we find no further

error that materially prejudiced Appellant’s

substantial rights. We affirm the remaining findings

and sentence, as reassessed.

I. BACKGROUND

Appellant was a urologist assigned to the medical

group at Royal Air Force Lakenheath, United

Kingdom, in the summer of 2020. Over the 4th of July

weekend, he and other members of the unit, who were

neighbors, hosted a series of parties at their respective

homes. On 4 July 2020, Appellant was at one of those

parties hosted by his friend, an enlisted member of the

unit. During that party, Appellant became

intoxicated. At his court-martial, Appellant described

his speech as “not as crisp” as normal and that his

balance was impaired. This incident formed the basis

for Appellant’s conviction for the Specification 2 of

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Charge V, conduct unbecoming for being drunk in the

presence of subordinates.

The next day, Appellant returned to the same

friend’s home to hang out with him for about an hour.

After that time, he asked where the other people in

the house were. The enlisted member stated that they

were upstairs. Appellant proceeded upstairs and

heard voices coming from one of the rooms. He entered

the room and found EL, a civilian, inside lying on a

bed and talking to someone on a video call on her

phone. EL introduced Appellant to the person she was

talking with on the phone. Appellant said, “hello” then

turned to EL. He proceeded to lift the blanket covering

EL and asked, “Are you naked under here? Do you

have clothes on?” He saw that she was clothed and left

the room. At the time of these events, Appellant was

married, and EL was married to someone else. EL did

not consent to Appellant lifting the covers or

attempting to view her naked body. This incident

formed the basis for Appellant’s convictions for

Specification 1 of Charge V, conduct unbecoming

involving EL.

On 28 August 2020, Appellant and his wife, DM,

visited London. Before departing, they arranged for

MH to watch their dogs. MH was the 20-year-old

daughter of JR, Appellant’s operating room nurse.

Before leaving for London, Appellant picked up MH

around 1100 hours and drove her back to his house.

About 30 minutes later, Appellant and DM left. They

returned from their London trip at approximately

0300 the next morning. Because both Appellant and

his wife were intoxicated, MH, who did not drive,

stayed in Appellant’s guest room. The next morning,

around 0930 hours, MH awoke and went to a living

area downstairs. While she sat on the couch looking at

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her phone, Appellant came into the room. Appellant

and she talked, and the conversation turned sexual.

Appellant asked if MH was seeing a particular person,

and MH replied that she and that person were friends.

Appellant responded, “Good because I’ve always been

jealous because even talking to you and thinking

about you gets me hard.” This pronouncement made

MH uncomfortable. She responded she did not want to

talk about that. Appellant asked MH if he could get a

hug. She responded that she did not believe that was

a good idea. Appellant stated, “Come on, it’s just a

hug.” Appellant approached MH and started kissing

and sucking on her neck. He then hugged her,

continued his kissing, and pushed her onto her back,

pinning her on the couch. MH told Appellant “No,” but

he continued.

After several seconds, Appellant stood up and

ordered MH to remove her clothes. MH did not comply

at first, but Appellant raised his voice and sternly

demanded that she remove her clothes. MH described

Appellant’s face showing “the most terrifying look [she

had] ever seen.” In response to his commands and

demeanor, MH removed her clothes. Appellant

pushed her back down on the couch where he

proceeded to penetrate MH’s vagina with his tongue.

About 15 minutes later, Appellant heard his wife

coming down the stairs. He stopped penetrating MH,

stood up, and grabbed MH’s clothes and threw them

at her. He told her to get dressed. DM saw them and

asked, “What’s going on here?” Appellant responded,

“F**king.” Appellant’s wife became enraged. The two

began yelling at each other while MH dressed. After

Appellant left the room, DM turned to MH, told her to

grab her stuff, and informed MH that she would drive

her home. During the ride, MH told DM that

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Appellant came onto her, that he forced himself onto

her and that she did not know what to do. Appellant’s

wife told MH that she needed to learn how to say “No.”

This incident formed the basis for Appellant’s

convictions for Specification 6 of Charge II and

Specification 5 of Charge V, sexual assault of MH and

conduct unbecoming.

The next day, Appellant went to MH’s family’s

home. The front door was unlocked so, without

knocking, he entered the home. Appellant was not

invited, did not have permission to enter the home,

and knew that he did not have permission to enter the

home, but he entered anyway. He saw MH standing

at the kitchen counter. He approached her to give her

the money for watching the dogs. The two had a brief

conversation. 4 Appellant then left. This incident

formed the basis for Appellant’s conviction for

Specification 2 of Charge IV, unlawful entry.

On 3 October 2020, Appellant’s wife hosted a girls’

night out at Appellant’s and her home. Several

members of Appellant’s unit attended. During that

evening, while also at the home, Appellant drank to

excess and became drunk. He was in the living room

while the gathered individuals were in the dining

room. Appellant would go into the living room

occasionally and they would see him. This incident

formed the basis for the rest of Appellant’s conviction

for Specification 2 of Charge V, conduct unbecoming,

noted supra.

The details of the conversation differ between Appellant’s

rendition during the guilty plea inquiry and MH’s testimony at

trial. Resolution of that discrepancy is unnecessary in our

disposition of the case.

4

9a

On 1 December 2021, Appellant, having been

reassigned to the chapel as a special projects manager,

reported for work for a staff meeting. Subsequent to

the meeting, he was sent home to telework, where he

had lunch with his wife and consumed alcohol. After

lunch, Appellant’s first sergeant contacted Appellant

and informed him that he needed to come in to sign

some legal paperwork. Appellant knew he had been

drinking and did not think he should drive. He

advised the first sergeant of that fact and that he

would have his wife drive him. Upon arrival,

Appellant signed the legal paperwork and was

ordered to provide blood for testing. The test revealed

that Appellant had a 0.138 blood alcohol content. This

incident formed the basis for Appellant’s conviction

for the Specification of Charge I, drunk on duty.

II. DISCUSSION

A. Providence of Guilty Plea

Appellant did not raise the issue of the providence

of Appellant’s plea to Specification 2 of Charge V,

Conduct Unbecoming an Officer and Gentleman, in

his assignments of error brief to the court. In response

to this court’s order to file briefs on the specified issue,

Appellant argues now for the first time that the

military judge abused his discretion by accepting his

guilty plea to this offense.

1. Additional Background

Before accepting Appellant’s plea of guilty to this

specification, the military judge conducted an inquiry

with Appellant. He advised Appellant of the

applicable elements of the offense as follows:

That between on or about 4 July 2020

and on or about 30 September 2020, at or

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near Royal Air Force Lakenheath,

United Kingdom, on divers occasions,

you did certain acts, to wit: were drunk

in the presence of subordinate members

of the 48th Medical Group, Royal Air

Force Lakenheath, United Kingdom;

and, two, that under the circumstances,

your conduct was unbecoming an officer

and a gentleman.

The military judge also provided relevant

definitions. Regarding the definition of unbecoming,

he instructed as follows:

Unbecoming means behavior more

serious than slight and of a material and

pronounced character. It means conduct

morally unfitting and unworthy, rather

than merely an opposite or unsuitable

misbehavior, which is more than opposed

to good taste or propriety . . . . Conduct

unbecoming an officer and a gentleman

means actions or behavior in an official

capacity, which is dishonoring or

disgracing the person as an officer,

seriously compromises the officer’s

character as a gentleman, or action or

behavior in an unofficial or private

capacity, which in dishonoring or

disgracing

the

officer personally,

seriously compromises the person’s

standing as an officer. There are certain

moral attributes common to the ideal

officer and the perfect gentleman, a lack

of which is indicated by acts of

dishonesty, unfair dealing, indecency

and decorum, lawlessness and justice

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[sic] or cruelty. Not everyone is, or can

be, expected to meet unrealistically high

moral standards, but there is a limited

[sic] of tolerance based on customs of the

service and military necessity, below

which the personal standards of an

officer, cadet or midshipman cannot fall

without seriously compromising the

person’s standing as an officer, cadet or

midshipman, or the person’s character as

a gentleman.

After he provided these definitions, the military

judge noted that he took these definitions from United

States v. Miller, 37 M.J. 133 (C.A.A.F. 1993), to which

trial defense counsel responded, “Defense concurs,

Your Honor.” The military judge then asked Appellant

to tell him why he was guilty of the offense. Appellant

responded,

Yes, Your Honor. On or about the 4th of

July, . . . our neighbors . . . hosted a party

. . . . In the presence of members of the

[medical group], I drank to excess and

became drunk. I agree that this is

conduct unbecoming of an officer. In

addition, on or about 3 October 2020, my

wife . . . hosted a girls’ night with several

members of my subordinates who are all

female from my unit, the [medical

group]. At that time, I also drank to

excess and became drunk in their

presence. I also agree that this conduct is

conduct unbecoming of an officer.

The military judge asked follow-up questions

regarding how much Appellant had consumed and

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why he was drunk. Appellant responded that his

intoxication level met the definition of drunk provided

by the military judge. Additionally, he stated, “I felt

psychomotor retardation. I don’t think my speech was

unintelligible, but it was not as crisp.” He agreed with

the military judge that he was slurring his words. He

stated, “I wasn’t stumbling, but my gait, my balance

was impaired. That led me to believe that I was

drunk.”

Appellant provided some additional context for his

drunkenness stating, “I also want to point out that my

drunkenness was in the presence of members of my

unit . . . and I think that my drunkenness was

observed by them and I believe—I didn’t ask them of

course, but I believe, in their mind, they thought,

‘Well, he’s drunk.’” The military judge asked

Appellant why he would believe that. Appellant

responded, “As I look back, my memory is not as good

as it could have been, of course, but their reactions to

the way I was conducting myself led me to believe that

they thought I was drunk.”

The military judge asked Appellant to describe the

circumstances of the event. Appellant stated,

Yes, Your Honor. It was a 4th of July day

weekend, which we typically have every

year as members of the military. [Our

neighbors and our family] decided to

have a joint 4th of July weekend party,

which we all agreed that it would last

more than just the 4th of July. It really

kicked off on the evening of the 3rd and

went through the 5th or so. It was a long,

kind of, drawn out social event. Drinking

was involved. Members of the [medical

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group], my subordinates, were present

and I drank enough to become drunk[,]

and they witnessed it. I came to the

conclusion that they witnessed it and

thought I was drunk based on how they

were reacting to my conduct physically

and mentally; how I was talking, slurred

speech or words and then my clumsy,

physical behavior.

Appellant clarified that the subordinate members

were senior enlisted members, and that there were “a

minimum of two to a maximum of four” subordinate

members at the event while he was drunk. He stated

that “[a]t any given time, there were members of my

unit . . . present around me[,] and I was interacting

with them when I was drunk.”

When the military judge asked Appellant, “why do

you think that that was conduct unbecoming an officer

and gentleman?” Appellant responded,

Yes, Your Honor. Being drunk in the

presence

of

members,

especially

subordinate members, of my unit, the

[medical group], who rely on my

leadership, especially in the operating

room, being drunk in their presence, in

my mind, would degrade their confidence

in me as a surgeon. It would seriously—

for example, let’s say I’m in the operating

room and I made an error surgically and

I got into major bleeding and I needed

help really quick, I think perhaps, in

their mind, they might think this guy is

a bum. He can’t operate. In that very

example, it’s simply that I didn’t see a

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vessel. It was cut. There was bleeding. In

their mind, because of their experience

with me in the past, they might [think]

otherwise and it could degrade their

confidence in me as a surgeon.

When the military judge asked Appellant, “As a

surgeon. What about an officer?” Appellant stated,

Yes, Your Honor, because I think that is

important to elucidate because, by my

behavior being conduct unbecoming, this

hypothetical person may, sort of, copy

their mental construct of me onto

another officer and that would impact

the officer corps, not just me. It’s not just

isolated to me. It might impact the other

members—other commissioned officers

of the [medical group] by my behavior.

When asked by the military judge whether the

incident impacted him personally and whether it

could impugn his honor, his integrity, and standing as

an officer, Appellant responded in the affirmative.

Appellant also affirmed that being drunk in front

of enlisted subordinate members of the unit was

conduct morally unbefitting or unworthy for the

reasons previously discussed. Appellant expanded

further, stating,

Yes, for the same reasons, Your Honor;

because as a senior commissioned officer,

I understand why it is important that

your conduct in all contexts in the

presence of members of your unit—in the

presence of the general public, not just

members of my unit, but in this

particular example, or case, my

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drunkenness in front of them degraded

my standing as an officer in their eyes[,]

of their image of who I am, what I should

be as an officer[,] and me personally.

The military judge then proceeded to question

Appellant regarding the incident on 3 October 2020.

Appellant stated that it was a “girls’ night” with

Appellant’s wife and members of the medical group,

including a captain (O-3), a civilian subordinate, and

a noncommissioned officer. Appellant described his

condition as drunk, elaborating that he was clumsy

and his words may have been slurred. The military

judge asked Appellant why he believed that his

conduct was unbecoming an officer and a gentleman

on that occasion. Appellant responded,

I had [drunk] to a level that, in my mind,

made me think I was drunk. I was in

their presence. They either directly work

with me or—for the example of this

particular Captain whose name I cannot

recall, she may have—many times in the

past, she relieved . . . the civilian

contracted

operating—my

personal

civilian contracted operating room nurse

so she could take a break. I would work

with her. My being drunk in the presence

of Sergeant First Class [M], who was my

neurology technician, a member of the

[medical group]; [JR] my operating room

nurse, on the org[anizational] chart of

the [medical group], civilian; and then

Captain—at that time, I think maybe

she was First Lieutenant, but this

person I would have worked with and I

have recollections of her relieving [JR]

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during a surgery case because surgery

cases can last anywhere from 30 minutes

to 4 to 6 hours. The nurses relieve each

other. I would have worked with all

three.

....

Your Honor, I didn’t mean to elaborate so

much about my role as a surgeon, my

operating room nurse and all this kind of

information. In a nutshell, they were

subordinates, they worked for me and, on

this date, 3 October [2020], I was drunk

and in their presence. I think they

thought I was drunk. They know I am a

Lieutenant Colonel—was and still am a

Lieutenant Colonel in their presence on

October 3rd. There was no doubt in their

mind or mine about the situation.

Following this explanation, the military judge

again asked, “I need you to tell me, on the 3 October

[2020] occasion, why you think that your behavior was

conduct unbecoming an officer and a gentleman.”

Appellant responded,

Yes, Your Honor. On the evening of

October 3rd[,] 2020, I was not acting in

an official capacity. It was in a personal

capacity. It was a social event. I was not

invited to this event. I was present in my

home. I was in the living room. They

were having their get-together in the

dining room. I would go in there

occasionally and they would see me. In

my mind, they thought I was drunk.

They were members of the [medical

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group] at the time. This was not a minor

deviation from what I would consider the

standard of professional officership.

....

Because of that behavior, I can see how

it could easily influence their idea of me,

concept of me, and in the future, it may

seriously compromise my ability as an

officer, basically, to complete the

mission.

Appellant then affirmed that this conduct may

seriously compromise his standing as an officer. He

affirmed that on both occasions that he believed the

conduct would disgrace him personally. He affirmed

that the conduct would bring dishonor to the military

profession and that “the specification and the

definitions to which [he] . . . pled guilty adequately

capture[ ] [his] conduct that was morally unfitting or

unworthy of being an officer.” Finally, Appellant

affirmed that his actions were serious misbehavior

and that they were of such a nature, under the

circumstances, to bring dishonor or disrepute upon

the military profession which he represented.

Towards the conclusion of the guilty plea inquiry,

the military judge asked counsel if they believed that

further inquiry was necessary. Trial counsel

requested and the military judge asked Appellant

questions regarding the names of individuals present

at the events. Following those questions, the military

judge again asked counsel if any further inquiry was

requested. Both trial counsel and trial defense counsel

stated, “No, Your Honor.” Trial defense counsel did

not object to the military judge’s acceptance of the

guilty plea, did not argue that the plea was not

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provident, and did not request to withdraw the guilty

plea.

2. Law

We review a military judge’s decision to accept an

accused’s guilty plea for an abuse of discretion. United

States v. Riley, 72 M.J. 115, 119 (C.A.A.F. 2013)

(quoting United States v. Inabinette, 66 M.J. 320, 322

(C.A.A.F. 2008)). In determining whether a military

judge abused his discretion, we apply the substantial

basis test asking “whether there is something in the

record of trial, with regard to the factual basis or the

law, that would raise a substantial question regarding

an appellant’s guilty plea.” Inabinette, 66 M.J. at 322.

“The military judge shall not accept a plea of guilty

without making such inquiry of the accused as shall

satisfy the military judge that there is a factual basis

for the plea.” R.C.M. 910(e). A military judge’s failure

to obtain an adequate factual basis for a guilty plea

constitutes an abuse of discretion. Inabinette, 66 M.J.

at 321. “[W]e afford military judges significant

deference on this point and we grant them substantial

leeway in conducting providence inquiries.” United

States v. Moratalla, 82 M.J. 1, 3 (C.A.A.F. 2021) (citing

United States v. Caldwell, 72 M.J. 137, 144 (C.A.A.F.

2013); then citing United States v. Price, 76 M.J. 136,

139 (C.A.A.F. 2017)). “Nevertheless, a military judge

must elicit actual facts from an accused and not

merely legal conclusions.” Id. (internal quotation

marks omitted) (quoting Price, 76 M.J. at 138).

“Even if a guilty plea is later determined to be

improvident, a reviewing court may grant relief only

if it finds that the military judge’s error in accepting

the plea ‘materially prejudice[d] the substantial rights

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of the accused.’” Id. at 4 (quoting Article 45(c), UCMJ,

10 U.S.C. § 845(c)).

3. Analysis

Appellant argues that “[i]n a nutshell, [Appellant]

was unable to articulate how his behavior, becoming

drunk and nothing more, in an unofficial social setting

rose to the ‘serious’ level required by the definition for

conduct unbecoming an officer and gentleman.”

Appellee, conversely, argues that “[b]y drinking to

excess in front of these subordinates and interacting

with them in an obviously drunken state, Appellant

acted with a lack of decorum that disgraced him

personally

and

left

questions

about

his

professionalism as an officer (and medical

professional).” The crux of the issue then is whether,

under the particular circumstances of these two

incidents, as described by Appellant, his conduct of

being drunk in front of subordinates was unbecoming

an officer and gentleman.

As a preliminary matter, a military judge must

“ensure the accused provides an adequate factual

basis to support the plea during the providence

inquiry.” United States v. Timsuren, 72 M.J. 823, 828

(A.F. Ct. Crim. App. 2013) (citing United States v.

Care, 40 C.M.R. 247 (C.M.A. 1969)). We cannot

consider evidence presented in a subsequently

litigated portion of the trial on separate but related

offenses to bolster an inadequate guilty plea inquiry

by the military judge. Evaluating this plea inquiry

through the proper lens, we are convinced that the

facts elicited from Appellant were insufficient to show

that his conduct on these occasions was unbecoming.

Thus, the military judge abused his discretion in

accepting Appellant’s guilty plea to this offense.

20a

Appellant’s statements reveal that both events

were social gatherings which included unit members

but were not official events. Appellant was not present

in any official capacity at these events. There is no

question that he consumed alcohol to excess and

became drunk. That drunkenness was manifested

through speech that was slurred or at least not as

“crisp” as would have been normal for him, an O-5

surgeon. Appellant believed or thought that these

manifestations may have caused his unit members to

draw adverse conclusions about him. However, those

assertions are speculative. We note on several

occasions Appellant adopted statements presented by

the military judge, providing blanket assertions that

can be fairly described as mere legal conclusions

rather than facts necessary to support them. While

legal conclusions have some value, the key aspect of a

plea inquiry is Appellant’s provision of “actual facts”

that support his plea. See Moratalla, 82 M.J. at 3

(emphasis and citation omitted). For example, in

relation to the October 2020 “Girls’ Night” event

hosted by his wife at their home, Appellant said his

coworkers “would see” him and he assumed they

thought he was drunk. But the military judge did not

elicit from Appellant what conduct the women saw

that would indicate Appellant was drunk and acting

in an unbecoming manner under the circumstances.

Similarly, in relation to the July event, Appellant

referenced “how they were reacting to [his] conduct

physically and mentally,” without describing those

reactions to his state of being drunk.

The military judge correctly instructed Appellant

on the applicable law and appropriately recognized

the difference between acting in an official capacity

and acting in a personal capacity. He properly advised

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Appellant that conduct is unbecoming if the behavior,

“in dishonoring or disgracing the officer personally,

seriously compromises the person’s standing as an

officer.” However, in Appellant’s case, there are

insufficient facts to support the conclusion that

merely being drunk in the presence of the

subordinates actually dishonored or disgraced

Appellant by seriously compromising his standing as

an officer. Appellee argues that this conduct shows a

lack of decorum. The facts of this case—that

Appellant’s speech was slurred or not as crisp as

normal and that his gait was imbalanced—do not

demonstrate a lack of decorum sufficient to sustain a

conviction for conduct unbecoming an officer.

In making this conclusion, we do not hold that

being drunk in front of subordinates can never rise to

the level of conduct unbecoming an officer and a

gentleman. We only conclude that in this particular

case, evaluating Appellant’s statements to the

military judge, the lack of facts raises a substantial

question regarding Appellant’s guilty plea to this

offense. Recognizing that military judges have

significant deference on this point and are granted

substantial leeway in conducting providence

inquiries, we cannot escape the conclusion that, based

on the statements presented to him, the military judge

here abused his discretion in accepting Appellant’s

guilty plea to this offense.

In this case, we conclude that the error in

accepting the guilty plea materially prejudiced

Appellant’s substantial rights. Appellant was found

guilty and sentenced for this conduct. In our decretal

paragraph below, we dismiss the finding without

prejudice. We discuss our resolution of the issue on the

sentence below.

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B. Sentence Reassessment

1. Law

When a finding of guilty is set aside, this court may

authorize a rehearing on sentence or if we can, we may

reassess the sentence. United States v. Doss, 57 M.J.

182, 185 (C.A.A.F. 2002) (citation omitted).

We have broad discretion first to decide whether to

reassess a sentence, and then to arrive at a reassessed

sentence. United States v. Winckelmann, 73 M.J. 11,

13 (C.A.A.F. 2013) (citing United States v. Sales, 22

M.J. 305 (C.M.A. 1986)). In deciding whether to

reassess a sentence or return a case for a rehearing,

we consider the totality of the circumstances including

the following factors: (1) “[d]ramatic changes in the

penalty landscape and exposure;” (2) “[w]hether an

appellant chose sentencing by members or a military

judge alone;” (3) “[w]hether the nature of the

remaining offenses capture[s] the gravamen of

criminal conduct included within the original offenses

and . . . whether significant or aggravating

circumstances addressed at the court-martial remain

admissible and relevant to the remaining offenses;”

and (4) “[w]hether the remaining offenses are of the

type that judges of the courts of criminal appeals

should have the experience and familiarity with to

reliably determine what sentence would have been

imposed at trial.” Id. at 15–16 (citations omitted).

If we cannot determine that the sentence “would

have been at least of a certain magnitude,” we must

order a rehearing. United States v. Harris, 53 M.J. 86,

88 (C.A.A.F. 2000) (citation omitted).

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2. Analysis

Application of the Winckelmann factors convinces

us that we can reassess the sentence. Setting aside the

single conduct unbecoming specification does not

change the penalty landscape significantly, let alone

dramatically. For this offense Appellant faced a

maximum confinement term of one year—a fraction of

what he faced with the remaining offenses, including

the sexual assault offense. Furthermore, due to the

sexual assault conviction, the dismissal was a

mandatory punishment. Appellant was sentenced

pursuant to his request by a military judge alone, thus

we know the exact length of the confinement term for

this offense—one month. This term ran concurrently

with the drunk on duty specification, the unlawful

entry specification, and the other conduct unbecoming

specification.

The offense we set aside, Specification 2 of Charge

V, was not central to this case. The gravamen of the

criminal conduct at issue was encompassed in the

remaining specifications, not this drunk-in-front-ofsubordinates offense. Those remaining offenses and

the underlying evidence supporting them remain

relevant for consideration of the sentence.

Finally, the remaining offenses are the type that

we have extensive experience and familiarity with to

reliably determine what sentence would have been

imposed at trial. Considering all these factors, we are

confident that without the set-aside finding,

Appellant’s sentence still would have included at least

a term of confinement for 40 months (in the same

segmented fashion the military judge set forth beyond

the set-aside offense) and a dismissal. We therefore

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reassess the sentence to reflect that sentence and

disapprove the adjudged reprimand.

C. Legal and Factual Sufficiency

1. Law

We review issues of legal and factual sufficiency de

novo. United States v. Washington, 57 M.J. 394, 399

(C.A.A.F. 2002) (citation omitted). “Our assessment of

legal and factual sufficiency is limited to the evidence

produced at trial.” United States v. Rodela, 82 M.J.

521, 525 (A.F. Ct. Crim. App. 2021) (citation omitted).

“The test for legal sufficiency is whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” United States v. Robinson, 77 M.J.

294, 297–98 (C.A.A.F. 2018) (citation omitted). “[T]he

term ‘reasonable doubt’ does not mean that the

evidence must be free from any conflict . . . .” United

States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)

(citation omitted). “[I]n resolving questions of legal

sufficiency, we are bound to draw every reasonable

inference from the evidence of record in favor of the

prosecution.” United States v. Barner, 56 M.J. 131,

134 (C.A.A.F. 2001) (citations omitted). Thus, “[t]he

standard for legal sufficiency involves a very low

threshold to sustain a conviction.” King, 78 M.J. at 221

(alteration in original) (citation omitted). Ultimately,

this court’s legal sufficiency analysis “gives full play

to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to

ultimate facts.” United States v. Oliver, 70 M.J. 64, 68

(C.A.A.F. 2011) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

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For trials involving any convicted offenses

committed before January 2021, “[t]he test for factual

sufficiency is ‘whether, after weighing the evidence in

the record of trial and making allowances for not

having personally observed the witnesses, [we are]

convinced of the [appellant]’s guilt beyond a

reasonable doubt.’” Rodela, 82 M.J. at 525 (third

alteration in original) (quoting United States v.

Turner, 25 M.J. 324, 325 (C.M.A. 1987) (construing

the pre-January 2021 version of Article 66, UCMJ, 10

U.S.C. § 866). “In conducting this unique appellate

role, we take ‘a fresh, impartial look at the evidence,’

applying ‘neither a presumption of innocence nor a

presumption of guilt’ to ‘make [our] own independent

determination as to whether the evidence constitutes

proof of each required element beyond a reasonable

doubt.’” United States v. Wheeler, 76 M.J. 564, 568

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

(quoting Washington, 57 M.J. at 399), aff’d, 77 M.J.

289 (C.A.A.F. 2018).

Appellant was convicted of sexual assault without

consent, in violation of Article 120, UCMJ, which

required the Government to prove the following

elements beyond a reasonable doubt: (1) that

Appellant committed a sexual act upon MH by causing

contact between his tongue and her vulva; and (2) that

Appellant did so without MH’s consent. Manual for

Courts-Martial, United States (2019 ed.) (MCM), pt.

IV, ¶ 60.b.(2)(d).

Additionally, Appellant pleaded guilty by

exceptions to conduct unbecoming an officer and

gentleman, in violation of Article 133, UCMJ. 5

5 Appellant pleaded guilty to the language he directed to MH

during this encounter and to sucking and kissing her neck.

26a

Appellant pleaded not guilty the remaining language

and was convicted of that remaining language. This

required the Government to prove the following

elements beyond a reasonable doubt: (1) that

Appellant did wrongfully and dishonorably commit a

certain act, to wit: demand MH to remove her clothing,

push her onto a couch, repeatedly demand her to hold

open her labia, climb on top of her, and pin down her

arms and legs with his arms; and (2) under the

circumstances, this conduct was unbecoming an

officer and gentleman. MCM, pt. IV, ¶ 90.b.

2. Analysis

Appellant challenges his convictions for sexual

assault upon MH and conduct unbecoming an officer

and gentleman arising from his pre-assault conduct

on MH. He argues that MH’s testimony had

contradictions and inconsistent statements. He

further argues that MH had a motive to misrepresent

the facts in her testimony. Confusingly, Appellant

appears to make these arguments to support not only

a factual sufficiency challenge, but a legal sufficiency

challenge.

Regarding the legal sufficiency standard, we note

that we must view the evidence in the light most

favorable to the prosecution to determine whether any

rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.

Robinson, 77 M.J. at 297–98. Any contradictions,

inconsistencies, or alleged motives referenced by

Appellant, viewed through this lens illustrate that

such a challenge is without merit.

Furthermore, Appellant’s factual sufficiency

challenge fails. Trial defense counsel comprehensively

cross-examined MH. The court members were able to

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see MH and the other witnesses, including Appellant’s

wife, testify. It was well within their purview to

believe some testimony and disregard other

testimony. It is important that we heed our charge

while conducting our review to make “allowances for

not having personally observed the witnesses.”

Rodela, 82 M.J. at 525. We do so here. But we do not

abdicate our responsibility to apply “neither a

presumption of innocence nor a presumption of guilt

to make our own independent determination as to

whether the evidence constitutes proof of each

required element beyond a reasonable doubt.”

Wheeler, 76 M.J. at 568 (alteration, quotation marks,

and citation omitted). Reviewing MH’s testimony in

its entirety, we are convinced that MH’s testimony

was not contradictory to other statements she made or

to the other evidence in any substantial way. We are

also convinced that any inconsistencies that arose did

not undermine her overall credible testimony.

Regarding MH’s alleged motive to fabricate, the

evidence simply did not support that such a motive

ever existed, let alone that it influenced her testimony

or led her to lie to the court members.

Viewing the evidence in the light most favorable to

the Government, we conclude the court members

rationally found the essential elements of both the

sexual assault and of the conduct unbecoming offense

beyond a reasonable doubt. See Robinson, 77 M.J. at

297–98. Furthermore, after weighing the evidence in

the record of trial and making allowances for not

having personally observed the witnesses, we are

ourselves convinced of Appellant’s guilt of both

offenses beyond a reasonable doubt. See Rodela, 82

M.J. at 525.

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D. Timeliness of Appellate Review

1. Law

“[C]onvicted service members have a due process

right to timely review and appeal of courts-martial

convictions.” Moreno, 63 M.J. at 135 (citing United

States v. Toohey, 60 M.J. 100, 101 (C.A.A.F. 2004);

Diaz v. Judge Advocate General of the Navy, 59 M.J.

34, 37–38 (C.A.A.F. 2003)). Whether an appellant has

been deprived of his due process right to speedy posttrial and appellate review, and whether constitutional

error is harmless beyond a reasonable doubt, are

questions of law we review de novo. United States v.

Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020) (citation

omitted); United States v. Arriaga, 70 M.J. 51, 56

(C.A.A.F. 2011) (citing Moreno, 63 M.J. at 135).

A presumption of unreasonable delay arises when

appellate review is not completed, and a decision is

not rendered within 18 months of the case being

docketed. Moreno, 63 M.J. at 142. A presumptively

unreasonable delay triggers an analysis of the four

factors set forth in Barker v. Wingo, 407 U.S. 514, 530

(1972): “(1) the length of the delay; (2) the reasons for

the delay; (3) the appellant’s assertion of the right to

timely review and appeal; and (4) prejudice.” Moreno,

63 M.J. at 135 (additional citations omitted). Moreno

adopted three types of prejudice arising from posttrial processing delay: (1) oppressive incarceration; (2)

anxiety and concern; and (3) impairment of a

convicted person’s grounds for appeal and ability to

present a defense at a rehearing. Id. at 138–39

(citations omitted).

“We analyze each factor and make a determination

as to whether that factor favors the Government or

the appellant.” Id. at 136 (citation omitted). Then, we

29a

balance our analysis of the factors to determine

whether a due process violation occurred. Id. (citing

Barker, 407 U.S. at 533 (“Courts must still engage in

a difficult and sensitive balancing process.”)). “No

single factor is required for finding a due process

violation and the absence of a given factor will not

prevent such a finding.” Id. (citation omitted).

However, where an appellant has not shown prejudice

from the delay, there is no due process violation unless

the delay is so egregious as to “adversely affect the

public’s perception of the fairness and integrity of the

military justice system.” United States v. Toohey, 63

M.J. 353, 362 (C.A.A.F. 2006).

A Court of Criminal Appeals may provide

appropriate relief for excessive post-trial delay.

Article 66(d)(2), UCMJ. Appropriate relief is not

synonymous with meaningful relief. United States v.

Valentin-Andino, __ M.J. __, No. 24-0208, 2025 CAAF

LEXIS 248, at *7 (C.A.A.F. 31 Mar. 2025). “Although

it is within a Court of Criminal Appeal’s discretion to

place its reasoning about Article 66(d)(2) relief on the

record, it is not required to do so.” Id. (citing

Winckelmann, 73 M.J. at 16).

2. Procedural Background and Analysis

Appellant’s case was docketed with the court on 3

August 2023. The delay in rendering this decision

after 24 January 2024 is presumptively unreasonable.

The reasons for the delay include: the time required to

permit the parties to review the exceptionally large

record of trial including a transcription of over 2,700

pages; the time required for Appellant to file his brief,

which was filed with this court on 27 December 2024;

the time required for the Government to file its

answer on 27 January 2025; and the time required for

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both parties to file their briefs covering the specified

issue on 24 February 2025. 6 Appellant has made no

specific assertion of his right to timely appellate

review, nor claimed prejudice on this issue, and we

find none. Because we find no particularized

prejudice, and the delay is not so egregious as to

adversely affect the public’s perception of the fairness

and integrity of the military justice system, we

likewise find no due process violation. See Toohey, 63

M.J. at 362.

We also conclude there is no basis for relief under

Article 66(d)(2), UCMJ, in the absence of a due process

violation. Considering all the facts and circumstances

of Appellant’s case, we decline to exercise our Article

66(d), UCMJ, 10 U.S.C. § 866(d), authority to grant

relief for the delay in completing appellate review.

III. Conclusion

The finding of guilty for Specification 2 of Charge

V is SET ASIDE, and in the interests of judicial

economy, Specification 2 of Charge V is DISMISSED

WITHOUT PREJUDICE. We affirm the remaining

findings of guilty, and affirm only so much of the

sentence as provides for confinement for 40 months

and a dismissal, maintaining the same segments as

listed by the military judge for the remaining findings.

The remaining findings of guilty and the sentence, as

reassessed, is correct in law and fact, and no

additional error materially prejudicial to the

substantial rights of Appellant occurred. Articles

59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).

6 Notably, Appellant filed for and was granted 14 enlargements

of time permitting his civilian defense counsel a full opportunity

to review the case and submit Appellant’s brief.

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Accordingly, the remaining findings and sentence, as

reassessed, are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court