Articles Posted in Uncategorized

E. Samuel, An Historical Account of the British Army: And of the Law Military, as Declared by the Ancient and Modern Statutes, and Articles of War for Its Government with a Free Commentary on the Mutiny Act, and the Rules and Articles of War; Illustrated by Various Decisions of Courts Martial, (1816).

There are two items from Canada that are worth the read.

Marie Deschamps, C.C. Ad.E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015.

Under the standard articulated by Criminal Code and the Supreme Court of Canada, genuine consent may be communicated by word or conduct. However, where either party indicates by any means—verbal or not—that he or she is uncomfortable or reluctant to continue with the sexual activity, an obligation crystallizes on the other party to specifically obtain consent before proceeding any further. While the Court did not explicitly require that this consent be verbal, as a practical matter where there is doubt as to whether or not a party has consented to sexual activity, the only clear way to dispel such doubt will be to verbally seek consent.

No. 15-0330/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.

The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v.Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).

On today’s CAAF daily journal we find:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

1. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

Marquette University Law School will host oral arguments for the court martial appeal of a U.S. Air Force sergeant accused of sexually assaulting two girls and endangering his baby son.

So says the Wisconsin Bar Journal.

Here is an link to a preview by a colleague.

The question is often asked of me–can we win on appeal, will the appellate courts give a fair hearing and review.

In United States v. Soto, the Air Force Court of Criminal Appeals (AFCCA) reviewed the factual sufficiency of appellant’s conviction for rape and any lesser included offenses.

• A military judge accepted the appellant’s pleas of guilty to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery.

A sophisticated employer knows how to interpret the numbers and language in the DD214.  The codes are easily findable on the internet.  This creates an issue with coding for early separation due to draw-down measures.  So the following came over the transom.

DD 214 SEPARATION PROGRAM DESIGNATOR NARRATIVE

The DD Form 214, which is issued to all servicemembers upon discharge from military service, includes the discharge status (honorable, other than honorable, etc.) as well as a Separation Program Designator code and narrative reason for the separation, such as Force Shaping (Board Selected), Reduction in Force, Insufficient Retainability (Economic Reasons), or Early Retirement.

On 28 January 2015, DoD issued an instruction (DODI 1304.33) protecting against inappropriate relationships during recruiting and entry level training.

Paragraph 1.a.(1)(k) of Enclosure (3) of this instruction expressly prohibits recruiters and trainers providing entry level training from soliciting donations from a recruit or trainee.

Apparently there have been questions concerning the impact of this instruction on various fund drives such as the NMCRS Active Duty Fund Drive (ADFD), and the Combined Federal Campaign.

When [persnonnel] hear nothing but one side of controversial issues for their entire time[], what you have is not true education but Maoist indoctrination in the guise of education.  When the academic consensus on any issue with political overtones can be predicted with 100% certainty merely by identifying the Politically Correct position, the consensus no longer means anything.

The state of legal scholarship

There is a conflict of opinion concerning the authority of this Court to reassess sentences. The language of Article 66(c), UCMJ, its legislative history, and the decision of the Supreme Court in Jackson v. Taylor, 353 U.S. 569, 1 L. Ed. 2d 1045, 77 S. Ct. 1027 (1957), give this Court the responsibility and unfettered authority to reassess a sentence, even after modifying the approved findings. On the other hand, our superior court holds that the service courts may only reassess a sentence after a finding of prejudicial error if the court was convinced that the sentence, as reassessed, is not greater than the sentence that the original court-martial would have imposed. United States v. Eversole, 53 M.J. 132 (2000); [11]  United States v. Taylor, 47 M.J. 322, 325 (1997); United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In United States v. Sills, 56 M.J. 556, 571 (A.F. Ct. Crim. App. 2001), set aside on other grounds, No. 02-0048/AF (15 Jan 2002), we analyzed these conflicting precedents, and HN8 concluded we are bound by the will of Congress and the decision of the Supreme Court. While the Manual for Courts-Martial gives this Court the authority to order a new hearing on sentence, it does not require us to do so. R.C.M. 810(a)(2) and 1203(c)(2).

United States v. Roper, 2002 CCA LEXIS 24, 10-11, 2002 WL 169256 (A.F.C.C.A. Jan. 24, 2002).

In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014),[1] No. 15-0347/MC. CCA 201300341, (C.A.A.F. 30 January 2015),[2] the Judge Advocate General certified the following issue to the Court of Appeals for the Armed Forces (CAAF).