v. Calvin J. WHEELER Jr.
On consideration of the petition for grant of
review of the decision of the United States Air Force Court of Criminal
Appeals, it is noted that the Court of Criminal Appeals has not had the
opportunity to complete its review of this case under Article 66(c),
Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), after the
authority took action on October 3, 2008.
See Boudreaux v.
28 M.J. 181 (C.M.A. 1989). Accordingly,
it is, ordered that said petition is hereby granted on the following
RAPE AND ADULTERY BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE. DURING THE COURT-MARTIAL, THE PROSECUTION'S
EXPERT PSYCHOLOGIST PROVIDED HUMAN LIE DETECTOR TESTIMONY THAT
ALLEGED VICTIM'S RAPE ACCUSATION. BASED
ON THIS TESTIMONY, THE AIR FORCE COURT OF CRIMINAL APPEALS SET ASIDE
CONVICTION. HOWEVER, IT AFFIRMED THE
ADULTERY CONVICTION. DID THE COURT ERR
SINCE THE MEMBERS MUST HAVE BASED THEIR ADULTERY CONVICTION ON THE
FORCE AND CONSENT FINDINGS OF RAPE THAT WERE SET ASIDE?
The record of
returned to the Judge Advocate General of the Air Force for remand to
Force Court of Criminal Appeals for consideration of the granted issue
completion of its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867
(2000), shall apply.