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In United States v. Gree

The appellant contends that the military judge erred in admitting evidence of uncharged acts occurring seventeen months after the charged offenses to establish a common plan or scheme. He argues that this evidence was improperly admitted under Military Rule of Evidence (M.R.E.) 404(b) and that the judge did not conduct a proper M.R.E. 403 balancing test. Additionally, he asserts that the Air Force Court of Criminal Appeals (AFCCA) improperly substituted its reasoning by finding the evidence probative of wrongfulness and intent.

A. M.R.E. 404(b) Evidence

The “Don’t Ask, Don’t Tell” (DADT) policy, enacted in 1993 under President Bill Clinton, represented a compromise allowing gay, lesbian, and bisexual individuals to serve in the U.S. military provided they did not disclose their sexual orientation. This policy prohibited military personnel from discriminating against or harassing closeted service members but mandated discharge for those who openly acknowledged their homosexuality. While intended as a progressive step, DADT effectively institutionalized secrecy, leading to the discharge of thousands solely based on their sexual orientation.

The repeal of DADT in 2011 allowed LGBTQ+ individuals to serve openly. However, many veterans discharged under DADT or prior policies continued to face challenges due to “other than honorable” discharge statuses, which impeded access to military benefits and affected civilian employment opportunities. Their discharge paperwork often explicitly cited their sexual orientation as the reason for separation, perpetuating stigma and discrimination post-service.

In United States v. Deremer, 2025 CCA LEXIS 46, 2025 WL 427756 (N-M.Ct. Crim. App. 20 Feb. 2025), NMCCA decided that when an alleged victim has an SVC, the MCIO must notify the SVC of any interviews, especially those with intent to interrogate the “victim” about a false allegation.

The McOmber rule was based on the CMA’s interpretation of the right to counsel at the time. Following two Supreme Court decisions the Military Rules of Evidence were amended, and in United States v. Finch, McOmber was overruled because its constitutional basis was no longer good law and the Court of Appeals for the Armed Forces [CAAF] established that Mil. R. Evid. 305 governed Section 1044e and 10 U.S.C. § 1565b along with the accompanying DoDI and, in this case, the LSAM are congressional, departmental and service efforts to afford specific (and in some cases different or greater) rights to those in, or related to, the military who report that they are victims sexual assault.

United States v. Deremer, No. 202300205, 2025 CCA LEXIS 46, at *11-12 (N-M Ct. Crim. App. Feb. 7, 2025).

A convicted servicemember has the statutory and constitutional right to speedy review of their court-martial conviction. Unfortunately, the appellate cases show consistent problems in getting a record of the trial from the field to the court of criminal appeals. Here is a recent example.

In United States v. Lathrop, the Army Court of Criminal Appeals granted the Appellant 30 days confinement credit for such delay.

ACCA gives one month of sentence relief for a 211-day delay. The concurring judge would have also given the credit for a due process violation and would have granted 98 days of sentence relief versus the one-month granted. 

Sexual harassment accusations in the military can have severe consequences, potentially leading to criminal charges and court-martial proceedings. As of January 26, 2022, sexual harassment became a specified offense under Article 134 of the Uniform Code of Military Justice (UCMJ). This change has significant implications for those accused and their defense strategies.

Understanding the Charges

To secure a conviction for sexual harassment under Article 134, prosecutors must prove several elements beyond a reasonable doubt:

According to multiple news reports, the president-elect’s transition team is “compiling a list of senior current and former U.S. military officers who were directly involved in the withdrawal from Afghanistan and exploring whether they could be court-martialed for their involvement….”

https://www.nbcnews.com/politics/politics-news/trump-transition-team-compiling-list-current-

former-us-military-office-rcna180489 .

How the prosecution charges a sexual assault is important because consent has different legal meanings. United States v. Mendoza is an important new case that highlights the issue.

As military appellate defense lawyers and trial defense counsel we have been arguing the Mendoza issue for some time (as have others). So we were pleased to see that CAAF agrees with us in Mendoza.

Consent is a critical element in sexual assault cases under the UCMJ. The text distinguishes between two types of sexual assault: