United States v. Captain WARREN B. GILBERTSON ( 2011 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    TOZZI,[1] SIMS, and GIFFORD
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Captain WARREN B. GILBERTSON
    United States Army, Appellant
    ARMY 20080428
    Headquarters, Fort Bragg
    Patrick J. Parrish, Military Judge
    Lieutenant Colonel John S.T. Irgens, Staff Judge Advocate
    For Appellant:  Captain Tiffany K. Dewell, JA (argued); Colonel Mark Tellitocci, JA; Lieutenant
    Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA (on brief).
    For Appellee:  Captain Christopher B. Witwer, JA (argued); Colonel Michael E. Mulligan, JA; Major
    Christopher B. Burgess, JA; Major LaJohnne A. White, JA; Captain Mark Goodson, JA (on brief).
    19 July 2011
    -----------------------------------
    MEMORANDUM OPINION
    -----------------------------------
    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    SIMS, Senior Judge:
    A military judge sitting as a general court-martial convicted appellant, pursuant to his
    pleas, of attempting to commit an indecent act upon the body of a female under sixteen years of age,
    conduct unbecoming an officer, knowingly attempting to persuade an individual under the age of
    sixteen to engage in sexual activity in violation of 
    18 U.S.C. § 2422
    (b), and knowingly possessing
    child pornography in violation of 
    18 U.S.C. § 2252
    (a)(5)(B) (three specifications), in violation of
    Articles 80, 133, and 134, Uniform Code of Military Justice 
    10 U.S.C. §§ 880
    , 933, and 934
    [hereinafter UCMJ].  The military judge sentenced appellant to dismissal from the service and
    confinement for three years.  The convening authority approved the adjudged sentence.
    This case is before the court for review under Article 66, UCMJ.  Appellant has raised five
    assignments of error, three of which (I, II, and III) merit discussion, and none of which merits
    relief.[2]  In support of his assignments of error, appellant submitted an affidavit that contains
    numerous complaints, one of which includes an allegation that the convening authority failed to
    provide appellant with a day of pretrial confinement credit to which he was entitled. [3]  Because
    the stipulation of fact mentions the credit and both the military judge and the trial counsel agreed
    that appellant was entitled to a day of credit, we will address this oversight in our decretal
    paragraph.
    FACTS
    In March 2007, appellant was a thirty-six-year-old unmarried commander of a Special Forces
    Operational Detachment with more than eighteen years of military service and numerous successful
    deployments.  On 20 March 2007 appellant participated in an online chat with a Naval Criminal
    Investigator who, as part of an ongoing sting operation, was posing as “Abby,” the fictitious
    daughter of a Marine stationed at Camp Lejeune in Jacksonville, North Carolina.  Although the
    profile created for “Abby” contained a “profile picture” of a teen girl, it did not list her age.
    Over the course of the next six days, appellant and “Abby” engaged in several chat sessions in which
    they shared numerous personal details, discussed nudity, and explored sexual topics.  On 26 March,
    in response to a specific request from appellant, “Abby” sent him a picture of a “young, but
    developed” female wearing a purple bikini that resembled the girl in the profile picture.
    After looking at the bikini picture, appellant complimented her on her eyes and told her that
    her swimsuit was sexy.  The following night, he again chatted with “Abby” and asked her if she had
    ever seen a naked man.  “Abby” responded that she had not, other than some drawings in health class
    and a few “gross" photos sent to her online.  Appellant then offered to hold “Abby” while naked and
    told her he wanted her to kiss his neck.  Thereafter, appellant exposed his buttocks and genitals
    via his webcam, masturbated while still visible on the webcam, described the process of female
    arousal, and asked “Abby” if she wanted to kiss his penis.
    By 29 March, appellant had suggested that they meet in person in order to engage in sexual
    activity.  After learning that “Abby’s” parents usually went out on Friday nights, appellant offered
    to come to Jacksonville to get a hotel room for them to watch movies.  During this chat session,
    appellant again told “Abby” that he would “love” to have “a hot young girl with a sexy body getting
    naked with” him.   He told her he was looking at her bikini picture and that he “wished he could see
    that kitty.”  When “Abby” offered to wear the bikini to their meeting, appellant told her that he
    did not know how long she would be wearing it.  She responded by asking him if “he would like to be
    her first.”  He responded that he would be “honored.”
    During this chat session, appellant and “Abby” first discussed their differences in age.  Just
    eight minutes after having told “Abby” he was looking at her bikini picture, appellant asked her if
    the difference in age between them bothered her.  When she responded that it did not, appellant told
    her that “a lot of people wouldn’t be cool with it at all.”  He then indicated that neither of them
    could tell their parents about each other.  When appellant asked her how old she thought he was,
    “Abby” said that she thought that he was “like 25.”  Thereafter, appellant stated that he was
    “guessing” she was fifteen.  “Abby” confirmed appellant’s guess and told him she had just turned
    fifteen a few months before.  Appellant explained that initially he believed she was older when they
    first started chatting, but he thought it was cool that she had recently turned fifteen.  Upon
    receiving confirmation that “Abby” was underage, he continued to chat with her as before and make
    arrangements to meet for the purpose of watching movies and having sex.
    On the morning of 30 March, appellant again masturbated for “Abby” via webcam, taking the time
    to explain both pre-ejaculate and semen to her.  Later that same day, appellant again chatted with
    her and asked her if her parents were still going to be out and if she still wanted to meet in
    person.  After receiving positive responses to both queries, appellant told her he would be arriving
    in Jacksonville at around 1900 to procure a hotel room and would be contacting her online from there
    to make final arrangements for their meeting.
    Appellant then proceeded to carry out his plan.  He secured condoms, personal lubricant, and
    his laptop computer and drove to Jacksonville.  Upon arriving at the hotel, he contacted “Abby” and
    chatted with her some more.  At 2100, “Abby” told appellant she was getting in a cab to go to the
    designated meeting locale outside a doctor’s office near a shopping mall.  Appellant departed the
    hotel, driving to the meeting spot, and parking in a nearby parking lot whereupon he was promptly
    arrested at approximately 2115.
    After his arrest on 30 March, appellant admitted that he knowingly chatted with a fifteen-year-
    old girl and had travelled to Jacksonville to meet her knowing that a “sexual encounter was entirely
    possible.”  While in custody, appellant executed letters of apology to both “Abby” and her parents
    and gave consent for the search of his vehicle, hotel room, and residence.  The search of his
    residence yielded a mini compact disk, hand-labeled “PORN,” with an electronic volume name of
    “TEEN_PORN” and which contained 181 images of child pornography divided into file directories
    labeled “teen” and “preteen,” with the “preteen” directory containing a subdirectory labeled
    “young.”  The search also yielded a short child pornography video on appellant’s hard drive as well
    as another compact disk containing a single image of child pornography.  The seized pornographic
    images involved female children who ranged in age from infant to thirteen years old.
    On 31 March 2007, appellant was turned over to his unit.  He was relieved of his command and
    assigned as a project engineer for the United States Army Special Operations Command.  On 10
    December 2007, after being given notice and the opportunity to submit matters, appellant’s Special
    Forces tab was revoked.  On 27 March 2008, appellant pleaded guilty at a general court-martial.
    DISCUSSION
    Unlawful Command Influence
    It is a well-known axiom of military law that unlawful command influence (UCI) is “the mortal enemy
    of military justice.”  United States v. Gore, 
    60 M.J. 178
    , 178 (C.A.A.F. 2004) (citation and
    quotation marks omitted).  Article 37(a), UCMJ, provides that “[n]o person subject to this chapter
    may attempt to coerce or . . . influence the action of a court-martial or any other military
    tribunal or any member thereof, in reaching the findings or sentence in any case . . . .”
    Accordingly, military appellate courts have consistently “condemned unlawful command influence
    directed against prospective witnesses.”  Gore, 
    60 M.J. at 185
    .  Furthermore, even the mere
    appearance of unlawful command influence is to be avoided as the appearance alone can be “as
    devastating to the military justice system as the actual manipulation of any given trial.”  United
    States v. Ayers, 
    54 M.J. 85
    , 94–95 (C.A.A.F. 2000).
    An accused has the initial burden of raising the issue of unlawful command influence.  United States
    v. Stombaugh, 
    40 M.J. 208
    , 213 (C.M.A. 1994).  On appeal, appellant must:  “(1) show facts which, if
    true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show
    that the unlawful command influence was the cause of the unfairness.”  United States v. Simpson, 
    58 M.J. 368
    , 374 (C.A.A.F. 2003) (quoting United States v. Biagase, 50 M.J. at 150).
    Before this court appellant alleges that he is a victim of UCI, both prior to trial and after his
    trial.  Specifically, appellant claims he was unable to obtain character references from fellow
    officers because those officers had been intimidated by the actions of his company commander, Major
    (MAJ) S, and his chain of command.
    As evidence of pre-trial UCI, appellant cites to the following:
    (1) MAJ S initiated a successful revocation of appellant’s Special Forces tab and told him he was a
    “disgrace;”
    (2) Both appellant and his wife had been told that the team sergeant, Sergeant First Class (SFC) W,
    had issued a “gag order” to the enlisted soldiers in appellant’s unit;
    (3) Four field grade officers appellant approached for favorable testimony at trial “refused” to
    testify on his behalf.[4]
    As evidence of post-trial UCI, appellant claims that his wife was told by MAJ R (a personal friend
    to whom appellant owed $6000) that MAJ R would not provide a memorandum in support of appellant’s
    clemency request because MAJ R had been told by the brigade judge advocate (BJA) that the “command
    would see” the memorandum.
    The only corroboration of any of appellant’s UCI allegations are the fact that his Special
    Forces tab was indeed revoked prior to his court-martial and that two of his potential character
    witness used the word “inappropriate” in declining his request to serve as character witnesses for
    appellant.  Appellant has provided no affidavits from anyone other than himself to show that MAJ S,
    SFC W, the BJA, or anyone else engaged in any actions that could reasonably have intimidated any of
    the five field grade witnesses appellant claims would have testified in his favor and/or submitted
    memoranda of support.  Although appellant claims that he was told of the “gag-order” by Warrant
    Officer 1 (WO1) G (who allegedly overheard SFC W publish the order), appellant has provided no
    affidavit from WO1 G to that effect.  Likewise, although appellant claims his wife was also told of
    the “gag-order” by Staff Sergeant (SSG) M (who allegedly heard SFC W publish the order), appellant
    has not submitted an affidavit from either SSG M or his own wife.
    Not only does appellant provide scant evidence of the factual basis for the complained-of UCI,
    appellant fails to provide a logical link between the complained-of actions and the alleged harm.
    For example, it is mere speculation on the part of appellant that the administrative revocation of
    his Special Forces tab resulted in his becoming “persona non grata” and somehow served as a signal
    to other members of the community that they should not assist him in preparing his defense or
    requesting clemency.[5]  Likewise, there might have been a logical connection between the alleged
    gag-order and witness intimidation had appellant indicated to this court that he wanted to call as
    witnesses one or more of the enlisted soldiers who heard the alleged “gag-order.”  However, that is
    not the case.  The only witnesses appellant claims he would have called were the four field grade
    Special Forces officers and WO1 G who could have testified as to appellant’s “planning and skill of
    execution” and to the “effectiveness of the intelligence networks” created by appellant in
    Afghanistan.  It is unclear to us why appellant decided not to call WO1 G because it is obvious from
    appellant’s affidavit that WO1 G was not in any way intimidated by SFC W; WO1 G allegedly told
    appellant that “he wasn’t worried about it because he was a warrant officer and his [officer
    evaluation reports] are not written by [SFC W].”
    Finally, we are not persuaded that MAJ R was in any way unlawfully influenced by allegedly being
    informed by a BJA, in response to a specific question from MAJ R, that the command would see a
    memorandum of support from MAJ R if such a letter were to be submitted as part of appellant’s
    submissions pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 1105.  That factually accurate,
    and somewhat obvious, response, without further nefarious action by either the command or the BJA
    simply does not raise the specter of UCI.
    Appellant is asking this court to speculate on the effects of an administrative action, coupled with
    the accurate advice of a BJA and the alleged “gag-order” issued by a noncommissioned officer.
    However, he has failed to show any facts which, if true, would demonstrate that any of the field
    grade officers he wanted to call as witnesses were in any way discouraged from assisting him or his
    attorney. Furthermore, appellant admits that he was aware of most of the facts underlying his UCI
    claim for months prior to his decision to plead guilty without raising UCI at trial.
    Applying a beyond reasonable doubt standard, we find there are no facts which, if true, would
    constitute either UCI or the appearance of UCI.
    Providence of Pleas and the Entrapment Defense
    Appellant contends his pleas of guilty were improvident because the military judge failed to
    recognize that the facts of the case reasonably raised the entrapment defense.
    “[W]e review a military judge’s decision to accept a guilty plea for an abuse of discretion and
    questions of law arising from the guilty plea de novo.”  United States v. Inabinette, 
    66 M.J. 320
    ,
    322 (C.A.A.F. 2008).  See also United States v. Shaw, 
    64 M.J. 460
    , 462 (C.A.A.F. 2007).  To
    establish an adequate factual predicate for a guilty plea, the military judge must elicit “factual
    circumstances as revealed by the accused himself [that] objectively support that plea . . . .”
    United States v. Davenport, 
    9 M.J. 364
    , 367 (C.M.A. 1980).  Once the military judge has accepted the
    pleas and entered findings based upon them, we will not set them aside unless we find a substantial
    conflict between the pleas and the accused’s statements or other evidence of record.  Shaw, 64 M.J.
    at 462.  More than a “mere possibility” of conflict is required.  Id. (citation and quotation marks
    omitted).  Instead, we must find “something in the record of trial, with regard to the factual basis
    or the law, that would raise a substantial question regarding the appellant’s guilty plea.”
    Inabinette, 66 M.J. at 322.
    The entrapment defense contains two elements:  (1) “government inducement” and (2) “an accused
    with no predisposition to commit the offense.”  United States v. Howell, 
    36 M.J. 354
    , 358 (C.M.A.
    1993).  Inducement is more than merely providing the appellant the means or opportunity to commit a
    crime, or deploying artifice or stratagems.  Only “circumstances suggesting overreaching by [the]
    government agent or any pressuring by him of appellant to commit these offenses” will suffice.  
    Id. at 360
    .
    We find that the record, as a whole, objectively supports that there was no overreaching on the
    part of the government and that there was strong evidence that appellant was predisposed to commit
    the offenses to which he pleaded guilty.
    Although the Naval Criminal Investigative Service (NCIS) agent who created the persona of
    “Abby” failed to “disclose” “Abby’s age until the day prior to the planned meeting, she provided a
    profile picture of a young girl as well as numerous indicators throughout the course of their chats
    to make it very clear that she was not an adult.  This was confirmed by appellant in his providence
    inquiry when he told the military judge that based upon “certain things she had brought up in
    conversation” he began to suspect she was under the legal age of consent prior to his “guessing”
    that she was fifteen.  As appellant further elaborated in his colloquy with the military judge,
    after appellant received confirmation from “Abby” as to her age, he continued to chat with her “the
    way [he] had been talking before” and “continued on with the meeting.”
    Even if we were to find that the NCIS agent had induced his participation, we find appellant’s
    chat statement that he desired to have “a hot young girl with a sexy body getting naked with” him,
    as well as his possession of a large amount of child pornography, serve as strong evidence of his
    pre-existing sexual interest in children and his predisposition to commit the offenses to which he
    admitted at trial.
    The fact that appellant was not told that “Abby” was fifteen years old until 29 March raises no
    more than a mere possibility of entrapment.  Therefore, we find that the military judge did not
    abuse his discretion in failing to discuss the defense of entrapment with appellant.  It is
    sufficient that the military judge was aware of that fact and found the appellant guilty of conduct
    occurring only after appellant was made aware of her age.
    Ineffective Assistance of Counsel
    “The right to counsel under the Sixth Amendment includes the right to the effective assistance
    of counsel.”  United States v. Dobson, 
    63 M.J. 1
    , 10 (C.A.A.F. 2006).  See also Strickland v.
    Washington, 
    466 U.S. 668
    , 686 (1984) (citing McMann v. Richardson, 
    397 U.S. 759
    , 771 n.14 (1970)).
    “Ineffective assistance of counsel involves a mixed question of law and fact.”  United States v.
    Paxton, 
    64 M.J. 484
    , 488 (C.A.A.F. 2007) (citing United States v. Davis, 
    60 M.J. 469
    , 473 (C.A.A.F.
    2005)).  Factual findings are reviewed under a clearly erroneous standard, but a de novo standard of
    review is used to ultimately determine whether there was ineffective assistance of counsel and
    prejudice to the appellant.  
    Id.
      “On appellate review, there is a ‘strong presumption’ that counsel
    was competent.”  Dobson, 63 M.J. at 10 (internal citations omitted).
    In Strickland, the Supreme Court established the following two-prong test for ineffective
    assistance of counsel:
    First, the defendant must show that counsel’s performance was deficient.  This requires
    showing that counsel made errors so serious that counsel was not functioning as the
    “counsel” guaranteed the defendant by the Sixth Amendment.  Second, the defendant must
    show that the deficient performance prejudiced the defense.  This requires showing that
    counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
    whose result is reliable.
    
    466 U.S. at 687
    .  See also United States v. Wean, 
    45 M.J. 461
    , 463 (C.A.A.F. 1997).
    Our superior court has provided guidance for analyzing and applying the Strickland two-prong
    test:
    Under the first prong of Strickland, which examines the issue of deficiency in
    performance, we ask:  (A) Are appellant’s allegations true?  (B) If so, is there a
    reasonable explanation for counsel’s actions?  (C) If there is not a reasonable
    explanation, did defense counsel’s level of advocacy fall measurably below the
    performance ordinarily expected of fallible lawyers?
    Dobson, 63 M.J. at 10.  See United States v. Grigoruk, 
    56 M.J. 304
    , 307 (citing United States v.
    Polk, 
    32 M.J. 150
    , 153 (C.M.A. 1991)).
    If counsel’s performance was deficient, the defense must then prove prejudice under the second
    prong of Strickland.  The defense must demonstrate “a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would have been different.”  Strickland, 
    466 U.S. at 694
    ; Dobson, 63 M.J. at 10.  “[I]f we conclude that any error would not have been
    prejudicial under the second prong of Strickland, we need not ascertain the validity of the
    allegations or grade the quality of counsel’s performance under the first prong.”  Dobson, 63 M.J.
    at 10 (quoting United States v. Saintaude, 
    61 M.J. 175
    , 179-180 (C.A.A.F. 2005)).
    Appellant alleges that his civilian defense counsel (Mr. W) was ineffective in three main ways,
    two of which revolve around discovery issues and one of which involves pre-trial punishment.
    We turn to appellant’s first allegation of counsel error in which he claims   Mr. W failed to
    file a discovery request that would have resulted in the production by the government of an
    allegedly defective warrant application that resulted in the discovery of the “child pornography”
    after appellant claims to have withdrawn his search consent.  Appellant argues that if his counsel
    had filed a discovery request, he would have received the allegedly defective warrant application
    and should then have filed a motion to suppress the results of the search carried out pursuant to
    that warrant.  We find appellant’s claim to be tenuous and unsupported by the evidence in the record
    before us.
    Second, appellant alleges that Mr. W was ineffective in failing to file a discovery request
    that would have resulted in the discovery of chat logs that referred to a picture of a woman in a
    bikini, which picture arguably would have supported appellant’s post-trial claims that he was
    entrapped because he thought “Abby” was of legal age prior to 29 March 2007.  Appellant was clearly
    aware of the existence of this bikini picture because he had viewed it several times and it was
    prominently mentioned in the stipulation of fact and during his providence inquiry.  Most
    importantly, appellant does not claim that he ever discussed the picture with Mr. W or conveyed to
    him that he believed the picture showed an adult.
    Third, appellant alleges that Mr. W was ineffective in not recognizing or raising illegal pre-
    trial punishment in the sentencing phase of his trial.  In support of his allegation, appellant
    claims that the revocation of his Special Forces tab, his being told by MAJ S that he was a
    “disgrace,” his perceived banishment from the “brotherhood” of Special Forces soldiers, and his two-
    day stay at a psychiatric ward followed by a two-week stay in the barracks amounted to illegal pre-
    trial punishment, which should have been recognized and raised by Mr. W.  However, appellant does
    not claim to have told Mr. W about anything other than the revocation of the Special Forces tab.  We
    find that the alleged response of Mr. W that the revocation was an “administrative” matter that had
    “no bearing on the investigation or trial” to be correct.  Furthermore, the stipulation of fact,
    which was signed by appellant, admitted during his trial, and contained the revocation as an
    attachment, noted that he had served one day of pretrial confinement and stated that “[n]o other
    pretrial confinement, or restriction tantamount to pretrial confinement, has been implemented.”
    Additionally, when asked by the military judge if there were any “issues under Article 13[, UCMJ]
    and pretrial punishment,” Mr. W, in the presence of appellant, answered that there were not.
    We also note that Mr. W successfully negotiated a pretrial agreement that limited appellant’s
    exposure to three years of confinement when he was initially facing confinement for life.  At trial,
    Mr. W, supported by the sworn and unsworn testimony of appellant, followed a strategy of portraying
    his client as a hard-working, heroic, and dedicated soldier who was genuinely remorseful for his
    misconduct and who cooperated immediately and fully with both the investigators and his chain of
    command from the time of his apprehension until his guilty plea.  By pursuing this reasonable
    strategy, Mr. W obtained a three-year sentence from the military judge.  Following the trial,
    appellant retained a different civilian defense counsel who adopted Mr. W’s strategy in his
    submissions pursuant to R.C.M. 1105.[6]
    In evaluating the performance of appellant’s counsel in the context of appellant’s guilty plea,
    we fail to see how any of the complained-of errors, even if true, prejudiced appellant.  We are
    therefore unconvinced that “there is a reasonable probability that, but for counsel’s errors,”
    appellant would have abandoned the protections of his very favorable pre-trial agreement and instead
    “insisted on going to trial.”  Hill v. Lockhart, 
    474 U.S. 52
    , 57-59 (1985).  Our review of the
    entire record fully satisfies us that appellant received effective representation of counsel.
    Conclusion
    On consideration of the entire record, to include those matters raised personally by the appellant
    in his affidavit and pursuant to Grostefon, 
    12 M.J. 431
    , we hold the findings of guilty and the
    sentence as approved by the convening authority to be correct in law and fact.  Accordingly, the
    findings of guilty and the sentence are AFFIRMED.  Appellant shall be credited with one (1) day of
    credit towards his adjudged sentence of confinement.
    Senior Judge TOZZI and Judge GIFFORD concur.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    -----------------------
    [1] Senior Judge TOZZI took final action in this case prior to his permanent change of duty station.
    [2] Appellant alleged the following assignments of error:
    I.
    Whether unlawful command influence by maj sabine tainted cpt gilbertson’s court-martial.
    II.
    Appellant’s pleas of guilty to charge ii, and specification 1 of charge III, were
    improvident where the defense of entrapment was reasonably raised by the evidence and the
    military judge declined to identify the affirmative defense and elicit facts from
    appellant disclaiming and disproving the entrapment defense.
    III.
    Whether CPT Gilbertson’s pleas and trial were tainted by ineffective assistance of
    counsel pertaining to government non-disclosure of favorable evidence, and unreasonable
    search and seizure.
    IV.
    Charge i and its specification fail for legal insufficiency under [united States] v.
    miller, 67 m.j. 87 (c.a.a.f. 2008) and relevant precedent where [ARTICLE 134, UCMJ]
    convictions for indecent acts upon the body of a child, under [ARTICLE 80, UCMJ] attempt
    theories, require the physical presence of a child’s body.
    (continued . . .)
    (continued . . .)
    V.
    the cumulative effect of the errors in this case effectively denied the appellant his
    right to the due process of law and to a fair trial, and thus, requires that this court
    set aside the conviction and sentence.
    [3] In his thirty-nine-page affidavit, appellant raises numerous issues, some of which are
    referenced in appellate defense counsel’s brief and some of which are not.  In that affidavit,
    appellant also makes numerous factual assertions which are in conflict with evidence contained in
    the stipulation of fact and/or appellant’s sworn testimony to the military judge.  In an abundance
    of caution, we will treat those issues and assertions raised solely by appellant as submissions
    pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982).
    [4] According to appellant’s affidavit and emails filed as appellate exhibits, only two officers
    (Lieutenant Colonel K and MAJ M) actually refused to assist appellant.  Of the two others, one (MAJ
    F) indicated that he was deployed and would have to respond in writing and the other (Colonel B)
    apparently never responded at all.
    [5] It is interesting to note that appellant characterizes the Special Forces community as being a
    “mafia” like organization where tabbed soldiers are “made men” who are expected to “cover” for each
    other and “not report on their brothers.”  The clear implication of the appellant’s characterization
    of the Special Forces community is that had he retained his tab, he would have been able to bring in
    witnesses, not only to testify in his favor but possibly to perjure themselves for him as well.
    [6] The appellant’s post-trial submission under R.C.M. 1105 contained no references to UCI,
    entrapment, illegal pretrial punishment, restriction tantamount to confinement, or ineffective
    assistance of counsel.