In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (discussed here), the AFCCA held that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment but was deserving of (very limited) relief under the CCA’s Article 66(c) sentence-appropriateness power.

The Judge Advocate General of the Air Force then certified the case to CAAF, challenging the CCA’s authority to grant such relief in the absence of a finding of a violation of the Eighth Amendment or Article 55 (certification discussed here).

CAAF has now specified an additional issue for review, questioning whether the CCA should have remanded for a post-trial fact-finding hearing:

No. 15-0742/AF. U.S. v. Kevin Gay. CCA 38525. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO REMAND APPELLANT’S CASE FOR A HEARING PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), TO DETERMINE THE FACTS SURROUNDING APPELLANT’S POST-TRIAL SOLITARY CONFINEMENT. SEE UNITED STATES v. GINN, 47 M.J. 236 (1997).

Briefs will be filed under Rule 25.

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