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Stewart v. SecNav. One of perhaps many to come in which Jim McPherson is sued in his OFFICIAL capacity.

In this case, Marine Corps Officer Nicholas Stewart challenges the Navy Secretary’s refusal to grant him a waiver of statutory requirements that govern his eligibility for incentive pay as “arbitrary, capricious, . . . or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Aviation career incentive pay (ACIP) is a monthly cash benefit given to certain armed servicemembers who regularly fly aircraft as part of their official duties. See 37 U.S.C. § 301a. As relevant here, to be entitled to ACIP, servicemembers must be assigned flight duties for eight of the first twelve years of their careers, a requirement the parties refer to as a “flight gate.” By statute, the Secretary may waive the flight gate “[f]or the needs of the Service” “so long as the officer has performed” flight duties “for not less than 6 years.” Id. § 301a(a)(5). A Navy regulation, SECNAV Instruction 7220.87, further provides that the Secretary is “authorized . . . to waive ACIP flight gate requirements for aviators who are unable to meet their gates due to reasons beyond their control.” SECNAV Instruction 7220.87(4) (July 13, 2009), Joint Appendix (J.A.) 74. That regulation also sets forth a waiver-request process: officers “submit their requests via their chain of command,” and if the chain of command “endorse[s]” the request, it forwards the officer’s waiver “package” to the Assistant Secretary of the Navy, who in turn “review[s]” the package “for content, validity, and rationale,” and “forward[s]” it to the Secretary “with a recommendation to approve, disapprove, or . . . return[] to [the] . . . Marine Corps for further action.” Id. at 7220.87(5)(b)-(e), J.A. 75-76.

Fewer and fewer people these days remember the work of Pulitzer Prize-winning cartoonist Rube Goldberg, who died in 1970. For those who do, the name brings a smile. A “Rube Goldberg” contraption is a piece of machinery with many moving parts of various types, maniacally designed to accomplish some simple goal. Thanks to Congress, the key feature of military justice — the decision to prosecute — has become a Rube Goldberg machine par excellence.

Rube Goldberg and Military Justice

In United States v. Robertson the accused was charged with CP related offenses and violation of restriction.

Here is why as a trial I and my colleagues would, and you should consider–pick the serious and solid charges and leave the detritus out. When you have a solid CP case you don’t need a minor charge on the sheet–it may screw things up a bit. Fortunately no serious effect in Robertson, but there could have been.

That which is simple need not be made complex, and creative charging decisions in cases that are based upon simple facts can lead to legally insufficient convictions. This is such a case.

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