In United States v. Swift, 76 M.J. 210, (C.A.A.F. Apr. 26, 2017) (CAAFlog case page), a unanimous CAAF found that the Army CCA improperly based its review on uncharged conduct. Writing the court, Judge Ryan explained that:
The CCA simply may not substitute uncharged for charged conduct as either the basis for a conviction or the basis for affirming a finding of guilty under Article 66(c), and its review was legally infirm.
76 M.J. at 217.
The CCA conducted a new review. United States v. Swift, No. 20100196 (A. Ct. Crim. App. Aug. 29, 2017) (link to slip op.). Finding that the uncharged misconduct was properly admitted under both Mil. R. Evid. 404(b) and Mil. R. Evid. 414 – findings not made in the first decision – the CCA again affirms the findings and sentence.