​Congress passed 249 statutory requirements directing the Department of Defense (DOD) and the Coast Guard to address prevention of and response to sexual assault incidents, and most remain in force. The statutory requirements covered four broad categories: Victim Assistance and Advocacy (37 percent); Management and Oversight (33 percent); Military Justice and Investigations (21 percent); and Prevention Efforts (9 percent). DOD fulfilled most of these statutory requirements, such as establishing comprehensive policies to prevent and respond to sexual assault as well as training for sexual assault forensic and nurse examiners. However, DOD partially implemented 24 requirements and did not implement 5 requirements. (See figure.) For example, DOD did not report certain information in annual reports; establish and implement an evaluation plan to assess the effectiveness of the outcomes of its programs and activities related to sexual assault prevention and response; or ensure the tracking of commander compliance for conducting organizational climate assessments. 

​Until DOD fully implements all of these statutory requirements, such as those related to program evaluations, Congress and DOD may continue to lack necessary data about the effectiveness of programs and activities, which can affect oversight. Additionally, DOD may not ensure compliance with the laws and may not fully implement efforts to support victims and prevent sexual assaults.

[T]he military judge's factual findings were-while perhaps not clearly erroneous-not exactly correct. Between the military judge and trial counsel, the concept of "walling off experiences as a battalion commander was attributed to LTC x multiple times. However, LTC x never used that phrase; rather, it was incorporated into the military Judge's and trial counsel's voir dire questions. The military judge quoted LTC as saying, "At the end of the day, I can wall it off. I can judge this case on the facts." However, LTC did not expressly say this.
. . . 
We agree that LTC x was not actually biased toward finding appellant guilty. While we note that some of his responses were arguably equivocal, we place significant weight on the military judge's assessment that LTC x was credible and forthcoming. Reviewing a cold appellate record, we are ill-positioned to assess LTC x's demeanor as he answered voir dire questions. Were LTCs "probably[.]" and "it's difficult[.]" answers actually indicators of equivocation? Was his commitment to "try to be objective" sufficient? For purposes of actual bias, we do not disturb the military judge's denial of the challenge However, viewed in totality and in assessing implied bias, we find LTCs voir dire answers "less than resounding."
 
Lieutenant Colonel x also described himself as directly involved in changing the culture in his battalion regarding sexual harassment and sexual assault. While he did not explicitly detail his methods in bringing about this culture change, we gather an overall theme from his voir dire: support alleged victims. This theme is consistent with the Army's institutional-level approach, and nothing in this decision should be interpreted as criticizing it. We simply note that Army senior leaders require commanders and other leaders to be personally and decisively engaged in preventing and responding to allegations of sexual harassment and sexual assault as a fundamental part of effective command and leadership. Mindful of this
institutional backdrop, military justice practitioners should be prepared to reliably assess, discuss, and decide whether those same commanders and leaders are actually or impliedly biased when sitting in judgment of cases involving alleged sexual assault or sexual harassment. Prospective panel members who cannot table their obligation to support the Army's strategic objectives in favor of their controlling duty to be fair and impartial cannot serve, because they are actually biased. Yet even when a member convinces a military judge that they can, as a matter of fact, fairly and impartially decide the case, it is a separate question whether they should, as a matter of /aw-especially where the public perceives obedience to orders and commands as a defining feature of military service. As a result, when a close call materializes regarding a panel member's suitability, defense causal challenges must be liberally granted.

[H]is assignment of error is nearly identical to the issue we addressed last year in United States v. Hunt, ARMY 20200158, 2021 CCA LEXIS 457 (Arm Ct. Crim. App. 9 Sep. 2021) (mem. op.). Hunt was [a similar] ase [to Appellant's].
. . .
Indeed, the only meaningful factual distinction between Hunt and this case is that appellant here actually traveled in the hopes of meeting up with one of his chat partners, whereas Hunt did not. Hunt also requested that an expert assistant be appointed to his defense team, and the (same) military judge denied Hunt's request. We affirmed the military judge's decision, and explained that Hunt could "show only the possibility" that an expert assistant could have assisted in his defense, and that this was not a sufficient showing under the applicable precedent.

The instructions the military judge did give resolved this assignment of error.

On this point, the military judge instructed the panel that the government had the affirmative obligation to prove beyond a reasonable doubt that appellant actually believed that [x] and [x] "had not attained he age of 16 years" at the time of the attempted sexual assault or sexual abuse.

Based on this instruction, if the panel credited appellant's testimony that he did not think the individuals he was chatting with were minors, then he was not guilty because of a failure of the government's proof, without having to resort to any affirmative defenses. Cf United States v. Teague, 75 M.J. 636, 638 (Army Ct. Crim. App. 2016) (finding thar mistake of fact defense was "baked in" to the elements themselves where the government was required to affirmatively prove that appellant "knew or reasonably should have known" that victim was incapable of consenting). Stated differently, the instructions appellant actually received were more favorable to him than the one that he now claims his counsel should have requested. 
. . . 
While the parties did not discuss the issue at trial, it is apparent that the military judge tailored his instructions to account for the fact that appellant was charged with attempted sexual assault of a child and attempted sexual abuse of a child, and not with the substantive offenses themselves. As these instructions recognized, to be guilty of an attempt appellant had to have the "specific intent to commit the underlying offense"-here, sexual abuse of a child and sexual assault of a child. Thus, as the military judge instructed, if appellant believed hat he was talking to adults, he did not have the requisite specific intent to commit
he inchoate offense of attempt.
. . . 
Appellant's counsel therefore did not render deficient performance.

[T]he court-martial members sentenced Applicant to reduction to E-5, forfeiture of $500.00 per month for three months, and confinement for 30 days.

The convening authority approved the sentence and ordered it executed.2 On 15 July 2020, a judge advocate reviewed the case, in accordance with Article 65, Uniform Code of Military Justice [UCMJ],3 and determined that the court-martial had jurisdiction over Applicant and each offense of which he was found guilty, that each specification of which he was found guilty stated an offense, and that the sentence was legal. The judge advocate also responded to each allegation of error raised by the Accused, finding no error.

On 17 September 2020, Applicant applied for review by the Judge Advocate General, in accordance with Article 69(a), UCMJ. On 20 October 2021, the Judge Advocate General denied the Application for Relief. On 20 December 2021, Applicant timely submitted to this Court an Application for Review of the Judge Advocate General’s Action, in accordance with Article 69(d)(1)(B), UCMJ. 

The convening authority suspended the $500.00 forfeiture for three months, provided SO1 Howard maintain an allotment for his wife in the amount of $500.00 for three months. 10 U.S.C. § 865. United States v. Howard, NMCCA No. 202000251 Order Denying Application for Review.

We have reviewed the Action taken by the Judge Advocate General in this case and the Application for Review, and have determined that the Application does not demonstrate a substantial basis for concluding that the Action under review constituted prejudicial error.

Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:
Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.
Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.
When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”