Appellant and the convening authority reached a pretrial agreement, and the offer portion required the military judge to sentence appellant to a dishonorable discharge. The military judge discussed this provision in detail with appellant at the guilty plea inquiry, and he ultimately indicated it was his "expressed desire" to receive a dishonorable discharge. The military judge sentenced him to that punishment, and confinement.
. . . 
[A]ppellant has fallen far short of showing prejudice. He writes he "voluntarily acquiesced" to the discharge provision, but he did more than that. Appellant and his counsel specifically included the term with an offer to plead guilty and quantum dated 22 April 2022. The convening authority accepted both. After this arm's length transaction, appellant discussed and affirmed the term with the military judge, indicating he wanted a dishonorable discharge. Not surprisingly, he received the bargained-for sentence. Based on our common sense and experience as practitioners, we are confident the pretrial agreement's discharge provision worked to his favor by helping induce the convening authority to accept the proposed confinement limitation. We are also confident, based on our review of the record and experiences with similar cases, the military judge would have included a dishonorable discharge in the adjudged sentence even without the agreement's mandatory discharge provision.

Applied here, the military judge erred in failing to resolve the substantial conflict and inconsistencies between: (1) whether the Article 128b offense as amended in Specification 2 of Charge V alleged a violation of Article 128b(5) (suffocation) or Article 128b(1) (violent offense); (2) the fact that the amended allegation, asserting that appellant covered his wife's chest and neck with a pillow, failed to meet the legal definition of "suffocation" (which again requires a covering of the nose or mouth); and (3) the fact that the parties amended the specification to expressly delete any reference to the face, yet appellant contended that he suffocated his wife by placing the pillow over her face. Given these contradictions, appellant was not provident to Specification 2 of Charge V, and it must be set aside for legal insufficiency. See United States v. Kim, 83 M.J. 235, 238 (C.A.A.F. 2023) ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.") (citations omitted).

Paragraph 5(e) of the Plea Agreement provides that the Convening Authority may withdraw from the plea agreement "if findings are set aside because my plea of guilty pursuant to the agreement was held improvident on appellate review."
. . . 
Applied here, given our finding that appellant was improvident of Specification 2 of Charge V, the Convening Authority may now elect to withdraw from the Plea Agreement and proceed to trial on all of the specifications and charges to which appellant pled guilty. On the other hand, given that we have exercised our discretion to dismiss Charge III and its specification and Charge IV and its specification with prejudice, even if the Convening Authority withdraws from the Plea Agreement, the government still is precluded from moving forward on those two charges and specifications.
. . . 
To reiterate, other than setting aside Specification 2 of Charge V, at this point we are not making any ruling with respect to the findings of guilt pertaining to any of the remaining charges and specifications to which appellant pled guilty. Indeed, we will not take any further action on the remaining findings in this case until after we receive the answer from the Chief Trial Judge as to whether or not the Convening Authority for the Seventh Army Training Command wishes to withdraw from the Plea Agreement. Likewise, given the very limited scope of our remand, the Convening Authority for the Seventh Army Training Command, or whichever convening authority is directed to provide support for this remand, will not have the authority or jurisdiction to take any further action on any of the remaining charges and specifications in this case. See United States v. Carter, 76 M.J. 293, 295-96 (C.A.A.F. 2017) ("But even when acting on remand, a convening authority may still only take action 'that conforms to the limitations and conditions prescribed by the remand.") citing United States v. Montesinos, 28 M.J. 38, 42 (C.M.A. 1989). See also Article 66(O(3), UCMJ (remand hearings shall be "subject to such limitations as the Court may direct and under such regulations as the president may prescribe.")

In sum, if in response to our Order the Convening Authority for the Seventh Army Training Command indicates that he or she is electing to withdraw from the Plea Agreement, we will issue a ruling providing that Convening Authority, or any other convening authority, with the jurisdiction to proceed with a rehearing on all of the specifications and charges to which appellant pled guilty, including Specification 2 of Charge V. On the other hand, if the Convening Authority for the Seventh Army Training Command elects not to withdraw from the Plea Agreement, this Court will issue a further ruling addressing the remaining specifications and sentence.

​Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below. 

​Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media

In the interview, however, appellant also talked about his prior sexual experiences with the victim. Among other things, appellant described how in the past "it was kind of games," where the victim would say "no," he would stop and "she would just look at me," and then they would keep going again. Appellant also told the agent because of these past experiences, "I figured she was playing around," and she also did not mean "no" on this occasion. Appellant also described how teasing was part of the foreplay in their 4 or 5 prior sexual encounters. Finally, appellant said he held down the victim's wrist during oral sex because that was what they usually did, and in the past she had given him a "seductive no." None of this evidence (hereinafter referred to as appellant's "unadmitted statements") was before the military judge when he rendered his verdict. 

Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session.

In fact, when certain Mr. DC never asked about these prior instances during cross examination of the alleged victim, or the special agent who conducted the interview. While the defense certainly should have known about these statements, Mr. DC made no attempt to elicit testimony about them on cross, even after discussing the potential of Mil. R. Evid. 412 evidence in an R.C.M. 802 session. Mr. DC doubled down on this "strategy" by claiming he was only speaking to prior instances on the same day as the alleged assault.
. . .
Applied here, appellant's unadmitted statements that his past sexual encounters with the victim were "kind of games" where she would tell him "no" and then question why he stopped, are clearly relevant, material, and favorable to the mistake of fact defense asserted at trial. This is especially true given appellant's letter describing how, after he found the victim smiling in the closet, he "figured now that we were playing - - now we were playing around and [I] just followed along." See United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010) (holding that there is a "low threshold for relevant evidence" under Mil. R. Evid. 412); United States v. Yepez, ARMY 20210236, 2023 CCA LEXIS 12 at *6 (Army Ct. Crim. App. 11 Jan. 2023) (mem. op.) (finding military judge erred in relying on Mil. R. Evid. 412 to exclude evidence making it more likely for a fact finder to conclude appellanthonestly and reasonably believed the victim consented). 

Having determined that appellant's unadmitted statements were likely admissible under Mil. R. Evid. 412(b )(2) and (b )(3) and constitute "remaining portion" of appellant's admissions to the agent that were introduced against appellant, we turn to counsels' purported reasoning for not seeking their admission either before or during trial. See Mil. R. Evid. 304(h). First, to the extent counselclaimed appellant would not have made a good witness at trial, this purported justification ignores the fact that, because appellant made the unadmitted statements in his already recorded interview, their admissibility was in no way dependent on his testifying at trial, or even in a Mil. R. Evid. 412 hearing.