Orders violations

As military defense lawyers know, the prosecution must prove that a general order existed and that it applied to the accused. In the Henderson case, the Air Force Court of Criminal Appeals has found in favor of the accused.

Summary

• Conviction: A military judge convicted the Appellant of two separate violations of Article 92(1), UCMJ, for breaching Air Force Instruction (AFI) 36-2909, ¶ 4.2.1—first by attempting to develop a sexual relationship with trainee AM, and second by making sexual advances toward trainee DO—during Phase II of their technical training between October and December 2019.

• Factual Background: While serving as an entry‐level trainer at Sheppard AFB, the Appellant repeatedly made explicitly sexual comments in front of his 12-person class, including boasting about his genitalia and soliciting sex. He asked AM “when are you going to let me hit or smash” (a recognized sexual euphemism), and told DO “you can sit out [the training exercise] if you sit on my face.” Both trainees found these advances unwanted and testified they were not jokes. After graduation, the Appellant continued to pursue AM via social media and asked her for nude photos.

• Regulatory Proof: At trial, the Government introduced only the 14 November 2019 version of AFI 36-2909 (which superseded the prior 27 April 2018 version) and did not request judicial notice of the predecessor Instruction. Consequently, proof of the punitive prohibition (¶ 4.2.1) was established only as of 14 November 2019.

• Issue on Appeal: Under Article 92(1), the Government must prove (1) a punitive regulation was in effect, (2) the accused had a duty under that regulation, and (3) the accused violated it. The Government’s failure to establish ¶ 4.2.1’s effective date prior to 14 November 2019 meant there was a real possibility the misconduct occurred before the regulation took effect.

• Court’s Holding: Because the record left open the possibility that the Appellant’s sexual advances occurred before 14 November 2019, the CCA held the convictions were factually insufficient. The court declined to affirm under any lesser‐included offense—Article 92(3), UCMJ—because post-Jones, that offense’s elements (knowledge of duty) are not a subset of Article 92(1).

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Analysis

1. Elemental Burden & Sufficiency Standards

   • Legal Sufficiency: The Government must prove every element of an Article 92(1) offense beyond a reasonable doubt, drawing all inferences in favor of the prosecution. (See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018)).

   • Factual Sufficiency: Appellate review entails weighing all trial evidence—including credence determinations—independently, to decide whether guilt is shown beyond a reasonable doubt. (United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987); United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021)).

2. Proof of a Lawful General Regulation

   • Article 92(1), UCMJ proscribes violations of “lawful general regulations,” defined as those “properly published” by a service secretary. (MCM, Pt. IV, ¶ 18.c.(1)(a)).

   • A punitive provision must be proven in effect at the time of misconduct; its existence cannot be presumed nor judicially noticed “by implication.” (United States v. Paul, 73 M.J. 274, 279 (C.A.A.F. 2014)).

3. Transition of AFI 36-2909 & Timing Issue

   • The 14 November 2019 AFI expressly “Supersedes” the 27 April 2018 version, but without an explicit judicial‐notice motion or stipulation, the predecessor’s prohibitions remained unproven.

   • Because neither AM nor DO could pinpoint exact dates—only that Phase II ran from “late October” through mid-December—the court could not exclude that the charged comments predated the new AFI’s effective date.

4. Lesser‐Included Offense Consideration

   • Historically, Article 92(3) (dereliction of duty) was treated as an LIO of Article 92(1), but United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) requires an LIO’s elements to be a strict subset of the greater offense. Knowledge of duty is an element under Art. 92(3) but not under Art. 92(1), so dereliction of duty cannot substitute.

5. Lessons & Best Practices

   • For Prosecutors: Always introduce all applicable versions of a regulation covering the entire charging window, or move explicitly for judicial notice of predecessor regulations. Charging documents should mirror those dates.

   • For Regulators: Include clear transitional provisions in AFIs and general orders (e.g., “¶ 4.2.1 applies to conduct from 27 April 2018 forward”) to eliminate ambiguity.

   • For Defense Counsel: Scrutinize the Government’s proof of regulatory existence and timing; challenge gaps in effective-date proof under Article 92(1).

6. Broader Implications
   This decision underscores the critical importance of temporal alignment between alleged misconduct and the effective dates of punitive regulations. It reaffirms that courts will strictly enforce the Government’s burden to prove every element—especially when a servicemember’s liberty is at stake—and will not tolerate shortcuts such as implied judicial notice.