NMCCA action–misbehavior of a sentinel

NMCCA has set aside a guilty plea and conviction of  misbehavior by a sentinel in United States v. Apodaca.

DID THE MILITARY JUDGE ERR BY ACCEPTING THE APPELLANT’S PLEA OF GUILTY TO MISBEHAVIOR BY A SENTINEL, WHERE THE APPELLANT WAS IMPAIRED BY A SUBSTANCE OTHER THAN ALCOHOL AT THE TIME OF THE OFFENSE?  COMPARE MANUAL FOR COURTS-MARTIAL, UNITED STATES (1969 ED.), PART IV, PARA. 35c(3) AND 38c(5), WITH MANUAL FOR COURTSMARTIAL, UNITED STATES (2008 ED.), PARA. 35c(6) AND 38c(5).

It appears the accused was under the influence of hashish, not alcohol, and he was not sleeping.  NMCCA notes that in the current Manual the President unaccountably narrowed the definition of drunk under Article 113, UCMJ.

[T]his discrepancy between the prior and current versions of the Manual was identified by our Air Force brethren fifteen years ago, with an express invitation to Congress and the President to alter the language at issue. See United States v. Augostini, 1996 CCA LEXIS 381 (A.F.Ct.Crim.App. 10 Dec 1996).  The language has remained unchanged since that time.

NMCCA did find, after a Jones and Miller analysis that dereliction was an LIO.  But, that didn’t complete the inquiry, because the appellant then claimed a multiplicity – about which NMCCA agreed.

However, after a Sales analysis the sentence was affirmed.

Judge Booker concurred in the result, but took issue with the LIO “verdict substitution.”

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