United States v. Nelson

This opinion is subject to revision before publication. UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________ UNITED STATES Appellee v. Onetera G. Nelson, Staff Sergeant United States Air Force, Appellant No. 26-0059 Crim. App. No. 24042 Argued April 29, 2026—Decided October 8, 2026 Military Judge: David M. Cisek For Appellant: Lieutenant Colonel Luke D. Wilson (argued); Lieutenant Colonel Allen S. Abrams. For Appellee: Major Vanessa Bairos (argued); Colonel Matthew D. Talcott and Mary Ellen Payne, Esq. (on brief). Amicus Curiae in Support of Appellant: Philip D. Cave, Esq., Ann Ching, Esq., Brenner Fissell, Esq., Jason S. Grover, Esq., Frankin D. Rosenblatt, Esq., and James A. Young, Esq., (on behalf of the National Institute of Military Justice). Judge HARDY delivered the opinion of the Court, in which Chief Judge MAGGS, Judge SPARKS, and Judge JOHNSON joined. Judge OHLSON filed a separate dissenting opinion. _______________  United States v. Nelson, No. 26-0059/AF Opinion of the Court Judge HARDY delivered the opinion of the Court. Appellant was a public health technician at Tyndall Air Force Base, Florida, whose duties required her to inspect food facilities and file inspection reports. When Appellant failed to complete her assigned tasks, the Government charged her with three specifications of negligent derelic- tion of duty, in violation of Article 92, Uniform Code of Mil- itary Justice (UCMJ), 10 U.S.C. § 892, and two specifica- tions of making false official statements in violation of Article 107, UCMJ, 10 U.S.C. § 907. 1 At Appellant’s court-martial, after the presentation of evidence, the military judge convened an Article 39(a) ses- sion 2 and outlined the findings instructions he intended to present to the panel. He asked each party whether they had any objections to the instructions. The Government and trial defense counsel responded in the negative. He then asked if either counsel had any proposed additions to the instructions. Both counsel responded that they had none. The military judge then ordered a thirty-minute re- cess for the parties to review the instructions in written form. After the recess, the military judge reconvened the Article 39(a) session and asked again whether there were any objections to the instructions. Both Government and trial defense counsel reiterated that they had no objections. The panel convicted Appellant, contrary to her pleas, of two specifications of dereliction of duty under Article 92, UCMJ. 3 The United States Air Force Court of Criminal Ap- peals (AFCCA) affirmed. 1 Unless otherwise noted, all references in this opinion to the UCMJ and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 ed.) (MCM). 2 See Article 39(a), UCMJ, 10 U.S.C. § 839(a) (authorizing military judges to conduct hearings outside the presence of the members for certain purposes). 3 Appellant was found not guilty of another specification of negligent dereliction of duty, in violation of Article 92, UCMJ; and two specifications of making false official statements, in vi- olation of Article 107, UCMJ. 2  United States v. Nelson, No. 26-0059/AF Opinion of the Court We granted review to determine whether trial defense counsel’s statements—affirmatively declining to object to the instructions and offering no additional instructions— waived Appellant’s claim that the military judge erred by failing to instruct sua sponte on the defense of ineptitude. We find that, under this Court’s precedent in United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020), Appellant’s affirma- tive responses waived all objections to the military judge’s findings instructions, including instructions that are within a military judge’s sua sponte duties. We therefore affirm the decision of the AFCCA. I. Background In early 2023, Appellant, a staff sergeant (E-5), was as- signed to be the Community Health Noncommissioned Of- ficer in Charge (NCOIC) of Community Health at Tyndall Air Force Base, Florida. A few months later, Appellant’s supervisor, a technical sergeant (E-6), returned from ma- ternity leave and took over Appellant’s role as the NCOIC of Community Health. Appellant became the NCOIC of the Food and Public Facility Sanitation, a division within Com- munity Health. In her new role, Appellant’s responsibili- ties included inspecting food facilities and filing inspection reports in various electronic and hard copy filing systems. After Appellant’s supervisor returned, she identified multiple missing reports and improperly closed inspections in Appellant’s files. To address the missing reports, the su- pervisor emailed Appellant asking her to update the files. Appellant felt “badger[ed]” and “micromanaged” by her su- pervisor and admitted to her flight chief that the conflict with her supervisor was the reason Appellant was not com- pleting her work. Appellant asked her leadership to remove her supervisor from the unit. As a result of her conduct, the Government charged Appellant with three specifications of negligent dereliction of duty in violation of Article 92, UCMJ, and two specifications of making false official state- ments in violation of Article 107, UCMJ. At Appellant’s court-martial, after the presentation of evidence, the military judge called an Article 39(a) session 3  United States v. Nelson, No. 26-0059/AF Opinion of the Court and asked both parties to review his findings instructions. The military judge and counsel engaged in the following colloquy: [Military Judge]: Does either side have any objec- tion to [the draft] instructions? Trial Counsel? [Government Counsel]: No, Your Honor. [Military Judge]: Defense Counsel? [Trial Defense Counsel]: No, sir. [Military Judge]: What other instructions do the parties request? Trial Counsel? [Government Counsel]: None, sir. [Trial Defense Counsel]: No additional instruc- tions, sir. The military judge then recessed the court for thirty minutes to provide the parties an opportunity to “fully re- view” the instructions. After the recess, the military judge and counsel engaged in the following exchange: [Military Judge]: . . . Counsel, have you all had an opportunity to fully review [the findings instruc- tions]? Trial counsel? [Government Counsel]: Yes, Your Honor. [Trial Defense Counsel]: Yes, Your Honor. [Military Judge]: Any objections to [the findings instructions]? Trial Counsel? [Government Counsel]: No, Your Honor. [Military Judge]: Defense Counsel? [Trial Defense Counsel]: No, Your Honor. The military judge proceeded to instruct the panel mem- bers with no objections from either party. A panel with enlisted representation sitting as a gen- eral court-martial convicted Appellant, contrary to her pleas, of two specifications of dereliction of duty in violation of Article 92, UCMJ. 4 The panel acquitted Appellant of all 4 The panel convicted Appellant for “fail[ure] to update facil- ity folders on the office shared drive,” (Charge I, Specification 2), 4  United States v. Nelson, No. 26-0059/AF Opinion of the Court other offenses, and the military judge sentenced Appellant to a reprimand. The convening authority took no action on the findings or the sentence and issued the language of the reprimand. On appeal before the AFCCA, Appellant argued that the military judge erred by failing to instruct the members on the defense of ineptitude. Because trial defense counsel had presented evidence that Appellant’s declining mental health affected her performance, Appellant argued that: (1) the ineptitude defense was reasonably raised; (2) inept- itude is an affirmative defense of dereliction of duty; and (3) the military judge therefore had a sua sponte duty to instruct on it. Appellant further argued that any purported waiver was not done intelligently, because trial defense counsel did not know that ineptitude was a valid defense. The AFCCA affirmed Appellant’s conviction. United States v. Nelson, No. ACM 24042, 2025 CCA LEXIS 483, at *10-11, 2025 WL 2993424, at *4 (A.F. Ct. Crim. App. Oct. 24, 2025) (unpublished). The lower court held that under Davis, 79 M.J. at 331, trial defense counsel’s repeated re- sponse of no objections and failure to request additional in- structions was an affirmative waiver of any objection to the findings instructions. 2025 CCA LEXIS 483, at *10, 2025 WL 2993424, at *4. The AFCCA acknowledged that its holding directly contradicts the recent decision of the United States Army Court of Criminal Appeals (ACCA) in United States v. Coley, No. ARMY 20220231, 2024 CCA LEXIS 127, 2024 WL 1341003 (A. Ct. Crim. App. Mar. 13, 2024) (unpublished), aff’d on other grounds, 86 M.J. 134 (C.A.A.F. 2025), which held that Davis does not apply to affirmative defense instructions that a military judge is re- quired to raise sua sponte. 2025 CCA LEXIS 483, at *8-9, 2025 WL 2993424, at *3. We granted review of the following issue: and “fail[ure to . . . mark[] five inspections as complete” (Charge I, Specification 3). 5  United States v. Nelson, No. 26-0059/AF Opinion of the Court Whether the defense counsel’s mere failure to ob- ject when the military trial judge does not execute his sua sponte duty to instruct on all reasonably raised defenses amounts to an affirmative waiver of the right to have a panel instructed on all rea- sonably raised defenses. United States v. Nelson, 87 M.J. 66 (C.A.A.F. 2026) (order granting review). II. Standard of Review This Court reviews whether a military judge failed to give a mandatory instruction de novo. United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007). We also review whether an accused has waived an issue de novo. United States v. Malone, 86 M.J. 297, 301 (C.A.A.F. 2026). III. Discussion The President defines an affirmative defense (also known as a special defense) as one which, “although not denying that the accused committed the objective acts con- stituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a). Re- latedly, R.C.M. 920(e)(3) requires military judges to in- struct the members on any affirmative defense that is “in issue” in the case. An affirmative defense is “in issue” when “some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose.” R.C.M. 920(e) Discussion. Under this standard, an accused is entitled to an instruction on an affirmative de- fense when “ ‘there exists evidence sufficient for a reasona- ble jury to find in [the accused’s] favor.’ ” United States v. Schumacher, 70 M.J. 387, 389 (C.A.A.F. 2011) (alteration in original) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). In the context of findings instructions: A mere failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes forfeiture. But, when counsel affirmatively decline[s] to object and offer[s] no additional instructions, counsel ex- pressly and unequivocally acquiesce[s] to the 6  United States v. Nelson, No. 26-0059/AF Opinion of the Court military judge’s instructions, and his actions thus constitute waiver. While we review forfeited is- sues for plain error, we cannot review waived is- sues at all because a valid waiver leaves no error for us to correct on appeal. United States v. Rich, 79 M.J. 472, 475-76 (C.A.A.F. 2020) (alterations in original) (footnote omitted) (internal quota- tion marks omitted) (citations omitted). An express waiver is an “intentional relinquishment or abandonment of a known right” and occurs through “af- firmative action by the accused or accused’s counsel.” Malone, 86 M.J. at 301 (internal quotation marks omitted) (quoting United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). Such affirmative action may occur “when a trial defense counsel states that there is ‘no objection’ to a proposed course of legal action” or when a party seeks “[n]o changes” to a military judge’s instructions. Id. at 301-02 (quoting Davis, 79 M.J. at 330-32). Whether there has been an “intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances sur- rounding that case.” Id. at 302 (alteration in original) (in- ternal quotation marks omitted) (quoting United States v. Elespuru, 73 M.J. 326, 328 (C.A.A.F. 2014)). A. Ineptitude As relevant here, the Government charged Appellant with three specifications of negligent dereliction of duty, in violation of Article 92, UCMJ. 5 The President has articu- lated the following three elements for this offense: (1) that the accused had certain duties; (2) that the accused knew or reasonably should have known of the duties; and (3) that the accused was derelict in the performance of those duties through neglect. MCM pt. IV, para. 18.b.(3). In the expla- nation for this offense, the President makes the following statement: 5 Article 92(3), UCMJ, states that any servicemember who “is derelict in the performance of his duties . . . shall be punished as a court-martial may direct.” 7  United States v. Nelson, No. 26-0059/AF Opinion of the Court Ineptitude. A person is not derelict in the perfor- mance of duties if the failure to perform those du- ties is caused by ineptitude rather than by willful- ness, negligence, or culpable inefficiency, and may not be charged under this article, or otherwise punished. For example, a recruit who has tried earnestly during rifle training and throughout record firing is not derelict in the performance of duties if the recruit fails to qualify with the weapon. Id. para. 18.c.(3)(d). Relying primarily on this definition and the definition of “affirmative defense” provided in R.C.M. 916, the Gov- ernment argues that ineptitude is not an affirmative de- fense. Because ineptitude negates the third element of the offense—whether the accused was derelict in the perfor- mance of her duties through neglect—the Government ar- gues that an accused who is inept cannot also be derelict. For example, the recruit who trains earnestly but still fails to qualify with his rifle is not derelict in the performance of his duties. An affirmative defense, in the Government’s view, is one by which the accused concedes that the evi- dence proves all the elements of the offense but offers a le- gally sufficient justification that prevents criminal liability from attaching. Appellant counters that ineptitude is an affirmative de- fense. She argues that ineptitude explains an accused ser- vicemember’s negligent dereliction of duties rather than negates it. But even if the Court disagrees and concludes that ineptitude is not an affirmative defense, Appellant ar- gues that this Court eliminated any legal distinction be- tween substantive defenses—i.e., defenses that disprove el- ements of the offense—and affirmative defenses in Willenbring v. Neurauter, 48 M.J. 152, 176 (C.A.A.F. 1998). Appellant argues that after Willenbring, substantive de- fenses are just a subcategory of the broader category of af- firmative defenses. Thus, R.C.M. 920(e)(3)’s mandate for military judges to instruct the members on all affirmative defenses that are “in issue” applies equally to all defenses, including the defense of ineptitude. 8  United States v. Nelson, No. 26-0059/AF Opinion of the Court Solely for the purpose of deciding this case, we as- sume—without deciding—that the defense of ineptitude is an affirmative defense that was reasonably raised by Ap- pellant during her court-martial. Accordingly, we further assume that the military judge had a sua sponte duty un- der R.C.M. 920(e)(3) to instruct the members on the de- fense of ineptitude. B. Davis and Mandatory Instructions To resolve this case, we must first determine whether this Court’s decision in Davis applies to instructions that military judges have a sua sponte duty to provide, includ- ing instructions on reasonably raised affirmative defenses. The ACCA and AFCCA have come to different conclusions on this question. In Coley, the ACCA declined to apply Davis. 2024 CCA LEXIS 127, at *10, 2024 WL 1341003, at *3. It reasoned that because Coley involved an affirmative defense instruc- tion, it fell outside the issue presented to this Court in Da- vis. Id. at *10-11, 2024 WL 1341003, at *3. The ACCA viewed the critical question not as whether the appellant waived the issue, but instead as whether the military judge failed in his sua sponte duty to provide the affirmative de- fense instruction to the panel. Id. at *11, 2024 WL 1341003, at *4. In the present case, the AFCCA disagreed with the ACCA’s application of Davis. The AFCCA reasoned that R.C.M. 920(e), which lists the required instructions a mili- tary judge must provide to panel members, does not distin- guish between instructions arising from a military judge’s sua sponte duties and other instructions. Nelson, 2025 CCA LEXIS 483, at *8, 2025 WL 2993424, at *3. Instead, the AFCCA concluded that required instructions “should be given regardless of whether they are properly requested by a party or given by a military judge, sua sponte.” Id., 2025 WL 2993424, at *3. The AFCCA further reasoned that an instruction on an affirmative defense is no more man- datory than an instruction on the elements of an offense, which this Court held was waived in Davis. Id. at *8-9, 9  United States v. Nelson, No. 26-0059/AF Opinion of the Court 2025 WL 2993424, at *3. If mandatory instructions on an element of an offense can be waived, the AFCCA concluded that instructions on reasonably raised affirmative defenses can also be waived, and that trial defense counsel’s failure to object or offer additional findings instructions qualified as waiver under Davis. Id. at *10, 2025 WL 2993424 at *4. We agree with the AFCCA and find that Davis applies to all findings instructions. In Davis, because the appellant did not merely fail to object but “affirmatively declined to object to the military judge’s instructions and offered no additional instructions,” the Court concluded that the ap- pellant had “ ‘expressly and unequivocally acquiesc[ed]’ to the military judge’s instructions.” 79 M.J. at 332 (quoting United States v. Smith, 2 C.M.A. 440, 442, 9 C.M.R. 70, 72 (1953)). Accordingly, the appellant had “waived all objec- tions to the instructions, including in regard to the ele- ments of the offense.” Id. (emphasis added). This Court’s express use of the word “all” rebuts Appellant’s argument that Davis only applies to certain types of instructions. Furthermore, we agree with the AFCCA that there is no basis for distinguishing between instructions on affirm- ative defenses and other mandatory instructions. This Court has repeatedly held that affirmative defenses can be waived. See United States v. Gutierrez, 64 M.J. 374, 377 (C.A.A.F. 2007) (holding that appellant waived the affirm- ative defense of mistake of fact to the offense of assault); United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994) (“A right to an instruction on an affirmative defense which is reasonably raised by the evidence . . . . can only be affirm- atively waived.”). 6 And as the AFCCA noted below, “[t]he instructional error waived in Davis concerning an element of the offense is no less essential than an instruction on an affirmative defense, especially given that elements of an offense must always be instructed upon, whereas affirma- tive defense instructions are only required when raised by 6 Appellant also conceded at oral argument that an accused may waive her right to object to an instructional error that a military judge otherwise has a sua sponte duty to give. 10  United States v. Nelson, No. 26-0059/AF Opinion of the Court the evidence.” Nelson, CCA LEXIS 483, at *8-9, 2025 WL 2993424, at *3. For these reasons, we conclude that the affirmative waiver in Davis applies to all instructions, including af- firmative defense instructions within a military judge’s sua sponte duty. C. Waiver In this case, on three separate occasions, the military judge presented trial defense counsel with an opportunity to object or offer additional findings instructions. Trial de- fense counsel responded in the negative each time, stating “No, sir,” “No additional instructions, sir,” and “No, Your Honor.” Trial defense counsel’s affirmative statements are indistinguishable from those given by the trial defense counsel in Davis—“No changes, sir” and “No, Your Honor”—when asked the same questions by the military judge. 79 M.J. at 331 (internal quotation marks omitted). As the Court concluded in Davis, these affirmative re- sponses indicate that trial defense counsel “expressly and unequivocally acquiesc[ed]” to the military judge’s instruc- tions. Id. at 332 (internal quotation marks omitted) (cita- tion omitted). Consequently, Appellant affirmatively waived any objection to the military judge’s proposed in- structions. Id. Appellant argues that any potential waiver in this case was not done intelligently because trial defense counsel “ei- ther did not know or did not understand that, despite rais- ing facts of the defense throughout trial, he was actually presenting the defense of ineptitude.” In other words, Ap- pellant maintains that any waiver was not an affirmative waiver because it was not made knowingly. We find this argument difficult to reconcile with Appellant’s simultane- ous argument that “[t]he defense’s entire theory revolved around Appellant’s inability to function at a higher level and accomplish her duties” due to her mental health issues. As Appellant states in her brief, “trial defense consistently presented the theory of ineptitude from a pretrial motion for a mental examination, through voir dire, into the 11  United States v. Nelson, No. 26-0059/AF Opinion of the Court cross-examination of the Government’s witnesses, into di- rect examination of Appellant herself, and culminating in a closing argument that argued Appellant was inept.” Given Appellant’s own characterization of her defense, we are not persuaded that Appellant’s defense counsel was not aware of the defense of ineptitude. Given the similarity of these facts to those in Davis, we find no factual or legal grounds for concluding that Davis does not control the outcome here. Because trial defense counsel affirmatively declined to object to or add to the findings instructions on three separate occasions, Appel- lant expressly waived and relinquished any claim regard- ing those instructions. IV. Judgment The judgment of the United States Air Force Court of Criminal Appeals is affirmed. 12  United States v. Nelson, No. 26-0059/AF Judge OHLSON, dissenting. As will be shown, the defense of “ineptitude” is a “spe- cial defense” as provided for under Rule for Courts-Mar- tial (R.C.M.) 916(a). 1 Therefore, pursuant to R.C.M. 920(e)(3), a military judge has a sua sponte duty to in- struct panel members on this defense if it is reasonably raised by the evidence adduced at trial—as it was here. 2 This duty is imposed on the military judge by the MCM, and thus, is independent of any request for instructions made by trial defense counsel. Accordingly, in cases such as this one where the military judge errs by failing to give the required instruction on ineptitude, it cannot be said that typical waiver principles apply merely because the ac- cused did not ask for such an instruction. Because the ma- jority reaches the opposite conclusion, Nelson, __ M.J. at __ (11-12), I respectfully dissent. As the majority explains, Appellant was convicted of vi- olating Article 92(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892(3) (2018). This article punishes anyone who “is derelict in the performance of his [or her] duties.” Id. However, the MCM “also delineates the defense of ineptitude,” and this Court has “acknowledged [that an ineptitude defense] . . . exist[s] with respect to [a derelic- tion] offense.” United States v. Powell, 32 M.J. 117, 120 (C.M.A. 1991) (first citing MCM pt. IV, para. 16.c.(3)(d) (1984 ed.); and then citing United States v. Kelchner, 16 C.M.A. 27, 29, 36 C.M.R. 183, 185 (1966)). Indeed, the Pres- ident has recognized: A person is not derelict in the performance of du- ties if the failure to perform those duties is caused by ineptitude rather than by willfulness, 1 All references to the R.C.M. are to the Manual for Courts- Martial, United States (2019 ed.) (MCM) unless otherwise noted. 2 The majority assumes these points without deciding them. (“Solely for the purpose of deciding this case, we assume— without deciding—that the defense of ineptitude is an affirmative defense that was reasonably raised by Appellant during her court-martial. Accordingly, we further assume that the military judge had a sua sponte duty under R.C.M. 920(e)(3) to instruct the members on the defense of ineptitude.”) United States v. Nelson, __ M.J. __, __ (9) (C.A.A.F. 2026).  United States v. Nelson, No. 26-0059/AF Judge OHLSON, dissenting negligence, or culpable inefficiency, and may not be charged under this article, or otherwise pun- ished. For example, a recruit who has tried ear- nestly during rifle training and throughout record firing is not derelict in the performance of duties if the recruit fails to qualify with the weapon. MCM pt. IV, para. 18.b.(3)(d) (2019 ed.). Importantly, ineptitude is not just a general defense— it is a “special defense.” That is because R.C.M. 916(a) de- fines special defenses as those “which, although not denying that the accused committed the objective acts constituting the offense charged, den[y], wholly or partially, criminal responsibility for those acts,” and the defense of ineptitude precisely fits this definition. 3 Having demonstrated that ineptitude is a special de- fense, R.C.M. 920(e)(3) now comes into play. In pertinent part, this rule states as follows: “Required instructions. In- structions on findings shall include . . . [a] description of any special defense under R.C.M. 916 in issue.” (Second and third emphasis added.) Thus, R.C.M. 920(e)(3) squarely places this mandatory obligation on the military judge. In the instant case, the defense essentially conceded at trial that Appellant failed to fulfill her duties. However, as Appellant notes in her brief, “trial defense [also] consistently presented the theory of ineptitude from a pretrial motion for a mental examination, through voir dire, into the cross-examination of the Government’s witnesses, into direct examination of Appellant herself, and culminating in a closing argument that argued Appellant was inept.” Although trial defense counsel did not use the term “ineptitude,” the record otherwise supports this characterization of the defense approach at trial. 3 Although ineptitude is not specifically listed in the rule, “R.C.M. 916 provides an illustrative rather than an exhaustive list of defenses.” United States v. MacDonald, 73 M.J. 426, 428, 435 (C.A.A.F. 2014) (holding “the military judge had a sua sponte duty to instruct” on involuntary intoxication despite it not being enumerated in R.C.M. 916). 2  United States v. Nelson, No. 26-0059/AF Judge OHLSON, dissenting Because Appellant adequately raised the inepti- tude special defense at trial, the military judge had a sua sponte duty under R.C.M. 920(e)(3) to instruct the panel members on the defense. However, the military judge failed to do so. He also did not raise the topic with Appel- lant. 4 Appellant’s failure to request the instruction did not absolve the military judge of the duty imposed on him by the MCM. In other words, it cannot be said that waiver ap- plies here merely because Appellant did not ask for an in- struction that the military judge was already required to give. The granted issue in this case reads as follows: “Whether the defense counsel’s mere failure to object when the military trial judge does not execute his sua sponte duty to instruct on all reasonably raised defenses amounts to an affirmative waiver of the right to have a panel in- structed on all reasonably raised defenses.” United States v. Nelson, 87 M.J. 66 (C.A.A.F. 2026) (order granting re- view). I believe the correct answer to this query is, “No.” In concluding otherwise, the majority relies heavily on United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020). Nelson, __ M.J. at __, __ (3, 9-12). However, I believe Davis and the instant case are distinguishable in a key respect. In Davis, the military judge had a sua sponte responsibility to instruct the panel members regarding what the government needed to prove in order to secure a conviction under Article 120c(a)(2), UCMJ, 10 U.S.C. § 920c(a)(2) (2012). The military judge did give such an instruction. 79 M.J. at 330. Moreover, “the military judge asked whether the defense had any objections [to this instruction] or requests for additional instructions. . . . [T]he defense counsel answered. ‘No changes, sir.’ ” Id. at 331. Then on appeal, the appellant complained about how 4 I do not foreclose the argument that an accused can affirmatively waive an ineptitude instruction if the military judge addresses this issue with the accused and then the accused freely, knowingly, and intelligently asks the military judge not to give the instruction to the panel. However, we are not presented with that scenario here. 3  United States v. Nelson, No. 26-0059/AF Judge OHLSON, dissenting the military judge’s instruction was worded, and we found waiver. Id. at 330-32. In the instant case, however, despite having a sua sponte responsibility to instruct the panel members re- garding the special defense of ineptitude, the military judge gave no such instruction—at all. Moreover, as noted above, the military judge did not discuss this issue with Ap- pellant. For these reasons, our holding in Davis neither contemplates nor controls the instant case. In United States v. Schumacher, we noted: “A military judge must instruct members on any affirmative defense that is ‘in issue.’ ” 70 M.J. 387, 389 (C.A.A.F. 2011) (quoting R.C.M. 920(e)(3)). And in United States v. Gillenwater, we held: “If an affirmative defense such as mistake of fact is reasonably in issue, the judge must give an instruction sua sponte.”43 M.J. 10, 13 (C.A.A.F. 1995) (citation omitted). It is these precedents that should control here. 5 In United States v. Coley, the United States Army Court of Criminal Appeals (ACCA) astutely recognized that the Davis rule of waiver should not apply in cases where the military judge has a sua sponte duty to give instructions on an affirmative defense. No. ARMY 20220231, 2024 CCA LEXIS 127, at *9-10, 2024 WL 1341003, at *3 (A. Ct. Crim. App. Mar. 13, 2024) (unpublished). There, as here, the ev- idence raised an affirmative defense, but the military judge did not provide an affirmative defense instruction nor did the trial defense counsel request one. Id. at *7, 2024 WL 1341003, at *3. Similarly, there as here, “[trial] defense counsel affirmatively stated they had no objections and specifically declined to request any additional 5 Military judges have the affirmative duty to issue instructions on reasonable doubt and on the presumption of innocence under Article 51(c), UCMJ, 10 U.S.C. § 851(c) (2018). If the military judge fails to give such instructions and an accused fails to raise the issue at trial, will it now be said on appeal that waiver applies? The majority, which holds “the affirmative waiver in Davis applies to all instructions,” Nelson, __ M.J. at __ (11), would undoubtedly answer this question in the affirmative. Yet, such an unnuanced approach invites the possibility of a miscarriage of justice in a case where the military judge fails to fulfill his or her mandated responsibility. 4  United States v. Nelson, No. 26-0059/AF Judge OHLSON, dissenting instructions.” Id., 2024 WL 1341003, at *3. Despite these facts, the ACCA reasoned: [W]e find this case distinguishable from the in- structional error waived in Davis, 79 M.J. 329, be- cause it involves an affirmative defense instruc- tion. . . . [T]he Davis court was not presented with appellant’s current argument that this is not an issue of waiver, but rather an issue of whether the military judge failed in his sua sponte duty to pro- vide the affirmative defense instruction to the panel, despite defense counsel’s lack of objections or request for such an instruction. As such, we re- ject the government’s assertion that this issue is waived. Id. at *9-10, 2024 WL 1341003, at *3 (footnotes omitted). I agree with the ACCA’s analysis in the Coley case. Ac- cordingly, I respectfully dissent in the instant case because I would answer the granted issue in the negative and va- cate the decision of the United States Air Force Court of Criminal Appeals. 5