Significant Decisions of the Court of Military Appeals: 1982-1983

• Author: Criminal Law Division, The Judge Advocate General's School
• Pages: 03

This article is a reuiew of significant deeiszons of the Court of Military Appeals rendered between I October 1982 and 30 September 198b. The review is not an ezhaustive analysis of all opinions ojthe court; it is intended to discuss last term's decisions that am likely to significantly affect the admznistration of militaryjustiee. The article is organized generally in trial chronology. from decisions affecting pretrial practice through trial and post-trial procedures. Deciaionsof the court that impact in mare than one area m e discussed in detail once and refened to in other sectiana.

1. PRETRIAL PROCEDURE A. JURISDICTION

   The court made several significant decisions concerning the scope of court-martial jurisdiction over persons and offenses during the term. In Unzted States 2'. McDonagh,L the court held that the 1979 amendment to Article 2 of the Uniform Code of Military Justice (UCMJ) was intended to be retroactive. The court restricted the retroactive application of the amendment to offenses for which military status is not an element. For peculiarly militaryoffenses, theez postfacto prohibition of the Constitution prevents theeliminationof an issue which must be resolved by the finders of fact on a beyond reasonable doubt standard. Because the issue of military status, $.e. whether McDonagh was a person subject to the Uniform Code of Military Justice, was not an element of his drug offenses. the "defense"of recruiter misconduct was inapplicable. In UnitedStates

   li. Marsh,z the court reversed the unauthorized absence conviction of a sailor where the trial judge relied on the amendment to Article2 to preclude litigation of the recruiter misconduct issue. Becauseviola-tion of Article 86 is a peculiarly militarycrime, military statu8 is an element of the offense and a '"defense" to that element cannot be eliminated ez post jaeto.

   '14 M J 415 (C MA. 1983).#15 M.J. 252 (C MA. 1983).

   In l'mled States j.. Ftlipatrzck3 and Cnited Stales 1'. Handy.'the court expressed a nearly unanimousview of continued court.martial jurisdiction after the expiration of asaldier's term afservice(ETS1. Jurisdiction continues if, prior to the ETS date, some official action by the sovereign authoritatively signals an intent to impose legal processes against the service member, or if the member fails to abject to retention beyond ETS. or if the service member properly objects and demands release but the government takesofficial action with a view toward trial within a reasonable time Chief Judge Everett's minority view is that jurisdiction continues until the sepa. ration of the service member without regard to any objection or delay.

   The court's decision in Lhitrd Slates v. Loekzcoodj is a milestone inthe area of subJect.matter Jurisdiction. On appeal, the accused challenged the service-connection of larceny and forgery offenses committed off-base in the nearby civilian community. After tracing the de\.elopment of the service-connection doctrine, the court concluded that a service member's misconduct "outside a military enclave is service-connected. .if it has a significant effect within that enclave.''6 In Muway P. Haideman.. the court addressed the service-connectionofdrug abuse byserwemembersin private.onextended leave, and far away from any base. Use of drugs under those circumstances will be service-connected if the member returns to post under the influence of the drug.

   5. PRETRIAL CONFINEMENT

      The court addressed pretrial confinement practices and rules in lhiled Stales L . Dacidsan.'Cnited Stalest. Bruce,# and L'nttedStates

      1'. Sumkt.lo In Dauidsan. the court concluded that, because pretrial confinement is not punishmeni and is not the legal equivalent of confinement at hard labor. the cumulative period of pretrial and adjudged confinement may exceed the maximum authorized period of confinement. The court decided in Bruce that a pretrial confinee cannot waive the right under Article 13, UCMJ not to be punished before trial by accepting the conditions of a sentenced prisoner At

      '14 M J 394 (C M.A 1983) '14 H J 202 IC M.A 19821 115 H J 1 IC M A 19831 'id at 6-16 H J 14 (C k1.A 19831'11 M J 81 (C k1.A 19821. "4 U J 264 !C.M A 1982)'O14 M J 491 !C hl A 1983)

      least absent statutory or regulatory authority, the waiver is improper and the pretrial confinement is illegal. Finally, in Seruki, the court addressed the military judge's authority to granta remedy for illegal pretrial confinement, holding that the judge could grant more than day-for-day credit far egregious cases of illegal pretrial confinement and the convening authorit> could not unilaterally ignore the judge's order.

   3. MULTIPLICITY

      An area considered relatively dormant, multiplicity received extensive attention from the court this year. The multiplicity melee began with United States P Baker.:! The court, in a lengthy Split opinion, found aggravated assault and communication of a threat, occurring at the same time and place, separate offensesfor findings, but not separately punishable. In l'nited States L'. Lott.LZthe accused

      was charged with indecent assault of a trainee and violation of a regulation dealing with the treatment and handling of trainees at Fort Diu, New Jersey. The same assaultive conduct was cited as the basis of the regulatory wolation. The trial court found Private Latt guilty of both charges and was properly instructed that the offenses merged for sentencing. On appeal, the court determined that the offenses were also multiplicious for findings and dismissed the Arti-cle 92 conviction. Similarly, in several cases where there was no prejudice as to sentence the court nevertheless set aside one of the guilty findings on multiplicity grounds possession of LSD and distribution of LSD, possession charge dismissed;'a unauthorized absence and breach of restriction, unauthorized absence dismissed;" resisting apprehension and assault. assault charge dismissed;l6 possession and introduction of LSD onto a ship. possession charge dis. missed;16 rape, murder and felony-murder, felony-murder dismissed." In Cnited States I,. Hollrman,'B the court dealt with a threat communicated as part of a rape. Although the court cited Baker for comparison, the holding went far beyond Baker, dismissing the threat offense and ordered a rehearing on sentence.

      Many other multiplicity cases were handled bysummarydisposition. Although the issue wasoccasionally raised by appellate counsel. ~n mast cases, the court specified the multiplicity issue an its own motion.

   4. COMMAND CONTROL

      In L'nitrd States P. Elayloekle and United States 18. Charefte.20 the court dealt with similar fact situations arising from the same juris. diction. In each case, the special court-martial convening authority had referred charges to a special court-martial not empowered to adjudge a bad conduct discharge. Both Private Blaylock and Private Charette then requested administrative discharges in lieu of court-martial, which brought their cases to the attention of the general court-martial convening authority. This superior convening autharIty not only denied the requested discharges, but referred both cases to courts-martlal empowered to adjudge a bad conduct discharge. Overturning United States 8. HordyZ' in part, the Court held that the superior convening authority could effectively withdraw a referred case from a subordinate convening authority and refer the case to a higher level If deemed appropriate for reasons of discipline and command control. The court found that the rereferral was not jurisdictionally deficient and also rejected the conclusion in Hardy that command influence divests the court of jurisdiction.

   5. COURT-MARTIAL PERSONNEL

      Although an accused has no absolute right to a trial by military judge alone and the trial judge has broad discretion in acting on the accused's request forjudge alone trial, the appellatecourt must have some basis for assessing the judge's action. In l'nited States a. an Air Force trial judge summarily denied the request far trial by judge alone with no reason apparent in therecord.Thecourt held that. without any stated reason for this judge's exercise of discretion, appellate review was impossible. The court stated that the military judge must make the basis of the denial af a judge alone request a matter record. The conviction was reversed and a rehear. ing authorized.

      11. TRIAL PROCEDURE A. SPEEDY TRIAL

      The court decided three cases dealing with Burton23speedy trial rules. In Unzted States u. Romsey,z' the court discussed the remedy for violation of the Burton demand rule when the accused in pretrial confinement demands trial but is confined for less than 90 days. Partly in response to a demand for immediate trial, the accused was released from pretrial Confinement after being confined for SSdays. The govermnent did not otherwise respond to the demand for trial and almost 130 days had elapsed from preferral of charges to trial. Although some court of review cases had held that violation of the Burton demand rule could be dealt with through sentence reassessment,n5 the court held that the only proper remedy for deniai of the right to speedy trial is dismissal of the charges, regardless of nhether the denial is a violation of the 90 day rule, the demand rule, or the sixth amendment. In Unzled States u. GmshongZs and United States u. Colon-Anguiera,pr the court decided Bulton 90 day rule issues. In Groshong, the court ruled that the accused's repeated misconduct had required further investigation and resulted in additional charges that were required to be consolidated at one trial. In earlier cases, additional charges were deemed insufficient reasons for delay beyond 90 days,Zu but the court ruled that the delay was far "reasons beyond the control of the prosecution" and the accused's speedy trial rights were not violated, despite 104 days of pretrial confinement. In Colon-Angriera, the court concluded that reaaona-ble delays for psychiatric evaluations...