We further hold that even though trial counsel made numerous improper comments in his argument on findings and rebuttal, these errors were harmless. We therefore affirm the decision of the AFCCA. Despite finding no prejudicial error in this case, we are troubled by the recurring instances of improper argument at courts-martial. An Appendix to this opinion provides a non-exhaustive list of commonly violated restrictions on arguments. The Court recommends that military judges and counsel carefully study this Appendix. The Court further encourages military judges to ask counsel whether they have read and understood the Appendix before they proceed to argument.

Numerous cases coming before this Court, however, reveal that the efforts to educate counsel about improper arguments have not been sufficient to eliminate them from courts-martial. For example, although this Court has held repeatedly that trial counsel may not vouch for witnesses, express personal opinions, and so forth, errors continue to occur. These continued mistakes risk harm to the accused and reflect poorly on the military justice system.
. . .
APPENDIX
Because of the persistent problem of trial counsel using improper arguments during courts-martial, the Court offers the following non-exhaustive compendium of instances when this Court has identified areas of concern. Perhaps it will provide some helpful guidance regarding the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor [see, e.g., United States v. Voorhees.]

We remind all MJs of their "sua sponte duty to insure [sic] that an accused receives a fair trial." "At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument.". MJs are neither "mere figurehead[s]" nor are they "umpire[s] in a contest between the Government and accused." Nor can a defense counsel sit like a bump on a log—he or she owes a duty to the client to object to improper arguments early and often. [A] court is unlikely to "excuse counsel for his failure" to object because a defense counsel "has the duty to remain alert to such things in fulfilling his responsibility to see that his client receives a fair trial". Failure to do so may give rise to meritorious ineffective assistance of counsel claims. See F. Emmit Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing federal cases in which the circuit courts found ineffective assistance of counsel for failure to object). Andrews, 77 M.J. 393, 403-04 (C.A.A.F. 2018).

• Trial counsel is not the sole attorney at fault during the court-martial. As we admonished in Andrews. 
• The consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor's role within the military justice system and should counsel them to "seek justice, not merely to convict." Fletcher, 62 M.J. at 182.
• "Every attorney in a court-martial has a duty to uphold the integrity of the military justice system," and multiple experienced attorneys failed to do so here. [United States v.] Andrews, 77 M.J. [393, 398 (C.A.A.F. 2018)].​

Footnote: Matti is the eighth opinion. Judge Maggs has authored five, CJ Ohlson one, and two are per curiam.

VI. In light of United States v. Mendoza, were the instructions erroneous?

We find prejudicial error with respect to AOE VI as a result of the Court of Appeals for the Armed Forces (CAAF) opinion in United States v. Mendoza. We set aside the finding of guilty as to Specification 1 and dismiss it, and we reinstate and affirm the finding of guilty as to Specification 2. We reassess and affirm the same sentence.
. . . .
Applying the Winckelmann factors is a pedestrian task in this case; thus we easily reassess and affirm the sentence adjudged by the members: to be discharged with a dishonorable discharge, to be reduced to the paygrade of E-1, to forfeit all pay, and to be confined for 8 years.111 We find that affirming the finding of guilty for Specification 2 and setting aside Specification 1 does not change the penalty landscape, as the maximum punishment for both is identical, and includes up to 30 years of confinement. Although Appellant was sentenced by members for Specification 1, we are confident that the sentence would have been the same if they had instead sentenced him for Specification 2. The evidence admitted at trial to prove, and the gravamen of, the two specifications is the same – indeed it was the same act.

[From the dissent]

I join my colleagues in concluding, bound as we are by precedent from the U.S. Court of Appeals for Armed Forces (CAAF), that Appellant’s conviction for sexual assault without consent cannot stand due to prejudicial instructional error. Mendoza compels this result, though I am equally compelled to write separately to entreat our superior court to clarify its holding therein.

U.S. v. Jacinto

On the eve of Appellant’s 2018 trial, the defense received E.B.’s medical records which the defense had been seeking throughout the pretrial proceedings.
. . . . 
The week before the trial began, the hospital produced the required records. While at the hospital, Emily was prescribed Tylenol and four other medications, including Thorazine. It was the Thorazine that was at issue. This medication was prescribed for “psychotic agitation.” Appellant had a child psychologist provide expert testimony that Thorazine was a “known antipsychotic medication” used to assist patients who may be “stimulated internally by things that are not actually going on” or who could be “laboring under the burden of delusions.” But Emily was diagnosed with “depression without psychotic features” and the Thorazine was prescribed “as needed.” There was also no evidence Emily ever exhibited psychotic agitation or ever took Thorazine. The military judge denied Appellant’s motion for in camera review of Emily’s mental health records and denied his motion for a continuance based on the timeline of the disclosure of the records. The day before trial, Appellant moved the military judge to reconsider his denial of the continuance; the military judge denied the motion to reconsider.

Appellant requested the continuance so he could have more time to research whether Emily ever took Thorazine or was having psychotic delusions when she made her 2017 report against Appellant. Our resolution of the Mil. R. Evid. 513 issue weighs heavily on our analysis here.
​
Appellant had ample time—before the Government's production of Emily's medical records—to gather evidence of Emily's psychotic delusions from non-privileged sources. Prior to Emily's 2017 disclosure, Appellant lived with her and saw her almost continuously for nearly a decade. Appellant's counsel also could have spoken with Emily's friends and teachers, or even gathered evidence of psychotic delusions on social media. It stands to reason that if Emily did have actual psychotic delusions—contrary to her diagnosis of "depression without psychotic features"—this behavior would have manifested itself in some way other than solely in the repeated disclosure of her four-year-old allegations against Appellant.

Similar to the reasons stated above, the issue was not necessarily whether Emily experienced psychotic delusions in 2017, but whether she experienced psychotic delusions in 2013 when the sexual abuse is said to have occurred. Even if she was experiencing mental health problems in 2017, the relevant issue was whether those same mental health problems caused her to make a false report in 2013. We find there was no possible impact on the verdict because there appears to be no evidence Emily was having psychotic delusions in 2017, and even if she were, it would not necessarily be relevant to the allegations she made in 2013. The military judge did not abuse his discretion.