This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 5, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 6, 2018.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Monday, August 13, 2018 at 1 p.m.:

United States v. Spinoza, No. 201700236

Case Summary: A general court-martial composed of officer members convicted the appellant, contrary to his pleas, of stalking, assault consummated by battery, communicating a threat, fraternization, and unlawful entry. The members sentenced the appellant to be reprimanded and dismissed from the Naval Service. The convening authority approved the sentence as adjudged, and, except for the dismissal, ordered the sentence executed.

Issue: IF THE SEARCH OF LT SPINOZA’S CELLPHONE WAS OUTSIDE THE SCOPE OF CONSENT AND NOT SUPPORTED BY COMMAND AUTHORIZATION, WAS LT SPINOZA DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE TEAM DID NOT MOVE TO SUPPRESS EVIDENCE OBTAINED FROM THE UNCONSTITUTIONAL SEARCH OF HIS CELLPHONE?

CAAF recently granted review in three cases.

The first is an Army case involving the good-faith exception to the warrant requirement (

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR TELEPHONE BECAUSE ACCESS TO THE CONTENTS OF THE IPHONE WOULD NOT HAVE BEEN AVAILABLE BUT FOR THE GOVERNMENT’S ILLEGAL SEARCH AND THE GOOD FAITH DOCTRINE WOULD BE INAPPLICABLE UNDER THE CIRCUMSTANCES

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DEEMING THE INSUFFICIENT NEXUS ISSUE WAIVED BECAUSE THERE WAS NO DELIBERATE DECISION NOT TO PRESENT A GROUND FOR POTENTIAL RELIEF BUT INSTEAD ONLY A FAILURE TO SUCCINCTLY ARTICULATE THE GROUNDS UPON WHICH RELIEF WAS SOUGHT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The second is also from the Army and involves a potential major change:

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT MADE MAJOR CHANGES TO THE TIME FRAME OF THREE OFFENSES, OVER DEFENSE OBJECTION, AND FAILED TO PREFER THEM ANEW IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 603.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The third is from the Air Force and involves the sufficiency of a conviction for wrongful possession of child pornography:

No. 18-0288/AF. U.S. v. Jeremiah L. King. CCA 39055. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

THE MILITARY JUDGE FOUND APPELLANT GUILTY OF VIEWING CHILD PORNOGRAPHY. BUT ALL OF THE ALLEGED CHILD PORNOGRAPHY APPELLANT ALLEGEDLY VIEWED WAS FOUND IN UNALLOCATED SPACE OR A GOOGLE CACHE. IS THE EVIDENCE LEGALLY SUFFICIENT?

Briefs will be filed under Rule 25.

The only opinion I can find on the Air Force CCA’s website is a merits decision from July 26, 2017, available here.

Back in June, SCOTUS found no problem with concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR), in Ortiz v. United States, 585 U.S. __, No. 16-1423 (CAAFlog case page).

There were many trailer cases, including 167 court-martial appeals combined under Abdirahman, et al. v. United States, No. 17-206. One of those 167 appeals involved Air Force Lieutenant Colonel Michael Briggs, who was convicted of rape in 2014 for an offense that allegedly occurred in 2005. We noted the conviction in this post. The Air Force CCA affirmed in 2016 (link to slip op.). CAAF summarily affirmed in May, 2017.

But then CAAF decided United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), re-interpreting the statute of limitations for the offense of rape of an adult. Briggs promptly filed a supplemental brief (noted here) with SCOTUS seeing reversal on the separate basis that the military appellate courts should review his conviction in light of Mangahas.  The Solicitor General filed a response (noted here) that did not oppose remand to CAAF for that review.

In today’s order list, SCOTUS granted that review:

17-243 ABDIRAHMAN, LIBAN H. V. UNITED STATES

The petition for rehearing is granted. The order entered June 28, 2018, denying the petition for a writ of certiorari is vacated as to petitioner Michael Briggs. The petition for a writ of certiorari as to Michael Briggs is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Armed Forces for further consideration in light of United States v. Mangahas, 77 M. J. 220 (2018).

Congress recently passed – and the President will likely soon sign – the National Defense Authorization Act for Fiscal Year 2019. The bill includes a small number of military justice provisions, including:

Sec. 531. Inclusion of strangulation and suffocation in conduct constituting aggravated assault for purposes of the Uniform Code of Military Justice.

Sec. 532. Punitive article on domestic violence under the Uniform Code of Military Justice.  (note: the final text is a significant improvement over the initial proposal, that we discussed here)

Sec. 533. Authorities of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 534. Report on feasibility of expanding services of the Special Victims’ Counsel to victims of domestic violence.

Sec. 535. Uniform command action form on disposition of unrestricted sexual assault cases involving members of the Armed Forces.

Sec. 536. Standardization of policies related to expedited transfer in cases of sexual assault or domestic violence.

Other sections address policies and reporting that have a military justice connection (like Sec. 544. Oversight of registered sex offender management program).

Some details follow.

Read more »

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on August 8, 2018, at 10 a.m.:

United States v. Griego, No. 20160487

I. Whether the convening authority’s action should be set aside because appellant received ineffective assistance of counsel when his defense counsel failed to communicate with him during the post-trial process and failed to submit matters to the convening authority on appellant’s behalf.

[II]. Whether the preemption doctrine precludes appellant’s convictions for violations of civil statutes incorporated into the ucmj through article 134.

Disclosure: I represent the appellant in my civilian capacity and will argue this case. 

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on is on Thursday, August 9, 2018, at 10 a.m., at the NMCCA’s courtroom at the Washington Navy Yard:

United States v. Livingstone 

Issue: Whether the military judge reversibly erred by failing
to instruct on mens rea with regard to the conduct
unbecoming charges?

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on August 13, 2018.

CAAF decided the Army case of United States v. Jones, __ M.J. __, No. 17-0608/AR (CAAFlog case page) (link to slip op.) on Tuesday, July 31, 2018. Applying the old corroboration rule (that was effective prior to this 2016 change), CAAF unanimously finds that sufficient independent evidence was admitted to corroborate a confession to larceny of military property, even after excluding the statement of a co-conspirator that the Army Government Appellate Division conceded was improperly admitted (and used as corroboration at trial). Because the confession was otherwise corroborated, the erroneous admission of the co-conspirator’s statement is harmless and the findings, sentence, and decision of the Army CCA are affirmed.

Judge Maggs writes for a unanimous court.

CAAF granted review of three issues that focused on the admission of the a co-conspirator’s statement:

I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).

II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.

III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).

Chief Warrant Officer (W2) Jones was convicted of two specifications of larceny of military property, by a general court-martial composed of a military judge alone, and was sentenced to confinement for 17 days, a reprimand, and to be dismissed. Jones was acquitted of a single specification of conspiracy to commit the charged larceny offenses.

In late 2013 and early 2014, Jones was a mobilized reservist deployed to Afghanistan where he “served as the officer in charge of his unit’s woodshop.” Slip op. at 3. Jones was convicted stealing tools from the woodshop and mailing them to his home in North Carolina (to use at the high school where he was a teacher in civilian life). Jones confessed those facts to Army investigators. But that confession alone was not enough to convict Jones, because a confession is inadmissible unless it is corroborated by independent evidence. See Mil. R. Evid. 304(c). See also our #10 Military Justice Story of 2015 (Confessions).

There was, however, an accomplice. Master Sergeant Addington participated in the acts, and he also confessed to military investigators. The prosecution offered that confession into evidence as a statement made by a co-conspirator during and in furtherance of the conspiracy. Such statements are not hearsay and are admissible under Mil. R. Evid. 801(d)(2)(E) (and the equivalent Fed. R. Evid. 801(d)(2)(E)). The defense objected but the military judge admitted Addington’s confession (providing ample corroboration for Jones’ confession) and Jones was convicted.

It’s pretty hard to defend the military judge’s decision to admit Addington’s confession to military investigators as a statement by a co-conspirator made during and in furtherance of the conspiracy, because confessing to the conspiracy is a pretty bad way to further it. Nevertheless, the Army court summarily affirmed Jones’ convictions. But after CAAF granted review, the Army Appellate Government Division conceded that the military judge was wrong to admit Addington’s confession. The Government Division maintained, however, that the military judge’s error was harmless because other evidence admitted at trial provided sufficient corroboration for Jones’ confession.

Today CAAF agreed. Writing for the unanimous court, Judge Maggs explains that: “We conclude that the military judge did not err in admitting Appellant’s statement. We further conclude that the military judge improperly admitted MSG Addington’s statement, but we find that the error was harmless beyond a reasonable doubt.” Slip op. at 2.

Read more »

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 6, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom at the Washington Navy Yard.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on August 13, 2018.

In United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF upended precedent to hold that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Mangahas was charged with rape in 2015 based on allegations dating from 1997. He moved to dismiss on both due process (speedy trial) grounds and based on the statute of limitations (even though precedent was solidly against the statute of limitations challenge). The military judge agreed with the due process challenge and dismissed the charge, but the prosecution appealed and the Air Force CCA reversed the military judge. CAAF then granted review and reinstated the dismissal, but it did so by re-interpreting the applicable statute of limitations (CAAF did not decide the due process challenge).

A recent decision by the Air Force CCA applies Mangahas to reverse a rape conviction and dismiss the charge, even though the appellant did not object at trial. In United States v. Collins, __ M.J. __, No. 39296 (A.F. Cr. Crim. App. Jul 23, 2018) (link to slip op.), a three-judge panel of the CCA explains:

Appellant contends that in light of Mangahas, the military judge committed plain error which requires this court to set aside the findings and sentence and to dismiss the charge and specification. We agree.

Under Mullins and Harcrow, we must apply the clear law at the time of appeal to cases that, like Appellant’s, are pending direct review. Mullins, 69 M.J. at 116. In light of Mangahas, the statute of limitations applicable to the charged offense of rape in violation of Article 120, UCMJ, committed on or about 25 August 2000 was five years. See Mangahas, 77 M.J. at 225. Therefore, the statute of limitations in Appellant’s case expired in August 2005, more than ten years before the charge and specification were preferred and delivered to the summary court-martial convening authority in March 2016. Accordingly, we must evaluate the events at trial in this light.

Slip op. at 6.

The case involves an allegation dating to 2000, when the alleged victim was attending initial accession training in the Air Force and Collins was one of her instructors. The alleged victim made the allegation in 2000, but she would not identify the assailant because “she did not want to ‘ruin a family.'” Slip op. at 3. The alleged victim specifically “denied that it had been one of her course instructors.” Slip op. at 3. Because she would not identify the assailant, military and civilian prosecutors ended their investigation, and the physical evidence was destroyed in 2012.

The alleged victim renewed her allegation in 2014, “this time identifying Appellant as having raped her at Sheppard AFB in 2000.” Slip op. at 3. A court-martial prosecution followed, and in 2017 Collins (then a Master Sergeant (E-7)) was convicted of a single specification of rape in violation of Article 120 and sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

Read more »

CAAF granted review in two cases on Tuesday. First, a Navy case:

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY PROSECUTION OF APPELLANT VIOLATED THE FIFTH AMENDMENT’S DOUBLE JEOPARDY PROHIBITION.

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA opinion is available here. The due process issue is based on the fact that the appellant was held for possible trial past the end of his enlistment, without notice, for 300 days. The CCA rejected the argument that the lack of notice severed jurisdiction, holding that:

The appellant’s argument is based upon a faulty premise. . . . even if the appellant had received notice that he was being retained on active duty involuntarily from the outset, and assuming he objected to his continued retention, he still would not have been discharged and personal jurisdiction would have continued. Moreover, the appellant cites no authority for the proposition that failing to properly notify a service member that he or she is being retained on active duty against their will amounts to a deprivation of constitutional due process that severs jurisdiction.

Slip op. at 8 (internal citation omitted).

Correction. The double jeopardy issue seems to be based on a successive prosecution. In 2015 the appellant pleaded guilty to involuntary manslaughter in the Commonwealth of Virginia and was sentenced to confinement for three years (with all but six months suspended). He was then prosecuted for the same offense by the military, pleaded guilty to involuntary manslaughter and obstruction of justice at a general court-martial, and received an approved sentence of confinement for 39 months, reduction to E-1, and a dishonorable discharge.

Those facts suggest that this case involves the separate sovereigns doctrine and that this case is a Gamble trailer (noted here).

Second, an Army case:

No. 18-0267/AR. U.S. v. Jason A. Kohlbek. CCA 20160427. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY MISCONSTRUING MIL.R.EVID. 707 AND PROHIBITING APPELLANT FROM PRESENTING EVIDENCE RELEVANT TO APPELLANT’S POST-POLYGRAPH STATEMENT.

Briefs will be filed under Rule 25.

The Army CCA opinion is available here. The CCA explained that:

Appellant argues that the military judge erred in prohibiting him from telling the court-martial that his admissions were made after being subjected to a polygraph and being told his answers were deceptive. As Mil. R. Evid. 707 clearly prohibits this information, appellant argues that the rule is unconstitutional, at least as applied to his case. Appellant argues that being deprived of this information misled the factfinder about the circumstances under which he confessed.

Slip op. at 6. The court found no error, concluding that “Appellant testified at the suppression motion that he confessed because he wanted to end the interview as soon as possible. . . . appellant’s stated explanation for confessing, (wanting to end the interrogation), did not require disclosure of the polygraph testing.” Slip op. at 7.

On Friday CAAF granted review in this Army case:

No. 18-0247/AR. U.S. v. Hector Nicola. CCA 20150781. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE OF INDECENT VIEWING IN VIOLATION OF ARTICLE 120c, UCMJ, WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. It does not address this conviction in depth, but it looks like the appellant was convicted of indecent viewing the private area of the alleged victim by taking a shower with her when she was incapacitated by alcohol. The CCA’s opinion observes:

Appellant’s last assignment of error asserts the evidence is both legally and factually insufficient to support a conviction for wrongfully viewing SPC AA’s private area, as appellant was acquitted of sexual assault. We see nothing inconsistent with the panel acquitting appellant of sexually assaulting SPC AA while at the same time convicting appellant of wrongfully viewing SPC AA based on her testimony of appellant being in the shower with her. See United States v. Rosario, 76 M.J. 114, 117-18 (C.A.A.F. 2017).

Slip op. at 2 n.2.

The offense of indecent viewing in violation of Article 130c(a) occurs when a person, without legal justification or lawful authorization, “knowingly and wrongfully views the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014) (discussed here), the Navy-Marine Corps CCA held that a conviction of this offense requires that the accused view the real-life private are of the alleged victim (viewing a recording is not sufficient). CAAF later rejected a certified issue that challenged the authority of a CCA to order a sentence-only rehearing, in United States v. Quick, 74 M.J. 332 (C.A.A.F. Aug. 11, 2015) (CAAFlog case page).

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 Term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, July 25, 2018, at 10 a.m.:

United States v. Allen, No. 20180285

Issue: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE SUPPRESSED APPELLEE’S VOLUNTARY STATEMENT AND THE CONTENTS OF HIS CELL PHONE UNDER THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION.

Note: This is a prosecution appeal under Article 62.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

An article entitled Ordered to Self Incriminate: The Unconstitutionality of Self-Report Policies in the Armed Forces, 78 A.F. L. Rev. 125, was recently published in the Air Force Law Review by Air Force Academy Assistant Professor of Law, Carman A. Leone (Major, USAF).

Professor Leone’s article offers a compelling argument that the Army, Air Force, and Coast Guard’s regulations requiring members to self-report their arrests by civilian authorities all run afoul of the Fifth Amendment.

Read more »

Mens rea was the #8 Military Justice Story of 2017 in part because in United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (per curiam) (CAAFlog case page), CAAF explained that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA (75 M.J. 872) that found that the term states a negligence standard.

The case involved a guilty plea to two specifications of unlawfully providing alcohol to underage soldiers in violation of Article 134. Tucker admitted that he knew that one of the soldiers was underage, however he didn’t know and did not admit to having had any reason to know that the other soldier was underage. The military judge nevertheless accepted Tucker’s plea after instructing Tucker “that the necessary mens rea requirement for this Article 134, UCMJ, offense was ‘negligence.'” 76 M.J. at 257.

Early this year the Army CCA issued a second decision, again published, and again affirming the conviction on the basis that “the appellant’s admitted mens rea of simple negligence, when combined with the requirement that appellant’s conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, and his admitted knowledge of the wrongfulness of his actions, sufficiently separates his criminal conduct from otherwise innocent conduct.” United States v. Tucker, 77 M.J. 696, 697 (A. Ct. Crim. App. Mar. 27, 2018) (marks omitted) (link to slip op.). Senior Judge Campanella wrote for the majority of a three-judge panel. Judge Salussolia dissented, asserting that “we are bound to apply a mens rea higher than simple negligence for this offense because nothing in statute or under customs of the service requires otherwise.” 77 M.J. at 707. 

Yesterday, CAAF granted review:

No. 18-0254/AR. U.S. v. Steven M. Tucker. CCA 20150634. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN HOLDING THAT THE MINIMUM MENS REA REQUIRED UNDER CLAUSES 1 AND 2 OF ARTICLE 134, UCMJ, TO SEPARATE WRONGFUL FROM INNOCENT CONDUCT IS SIMPLE NEGLIGENCE.

Briefs will be filed under Rule 25.

This IRS FAQ discusses the Protecting Americans from Tax Hikes Act of 2015 (PATH Act):

Congress added a new exclusion from income under section 139F of the Internal Revenue Code. Under this new exclusion, a wrongfully incarcerated individual does not include in income any civil damages, restitution, or other monetary award received that relates to his or her incarceration for the covered offense for which he or she was convicted (Wrongful Incarceration Exclusion).

A reversed court-martial conviction, resulting in back pay, likely qualifies for this exclusion. There is, however, a deadline. The above-linked FAQ explains:

Q6: What is the deadline for a wrongfully incarcerated individual to claim a refund of an overpayment of tax for an award included in income in a prior tax year that qualifies for the Wrongful Incarceration Exclusion?

A6: The wrongfully incarcerated individual must file the claim for refund within three years from the date the individual filed the income tax return that previously reported the award or two years from the date the individual paid the tax on the award, whichever is later.  However, Congress provided a special provision permitting wrongfully incarcerated individuals to file a refund claim even if the claim does not meet either the three-year or two-year deadline.  A wrongfully incarcerated individual who cannot meet the three-year or two-year deadline and who is relying on this special provision must file his or her claim for refund by Dec. 17, 2018

Jon Eldan from the non-profit organization After Innocence (www.after-innocence.org) recently contacted me and offered to provide free accounting and legal assistance services to veterans to determine eligibility and claim a refund. A Huffington Post article about his work is available here. Jon’s email address is jon@after-innocence.org

This is not an endorsement of Mr. Eldan or the After Innocence project.

Today CAAF issued a summary disposition in United States v. Burris, No.17-0605/AR (CAAFlog case page), reversing the Army CCA and remanding for a new Article 66 review:

On further consideration of the granted issue (77 M.J. 138 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, we note that the United States Army Court of Criminal Appeals concluded that the mere failure to object to evidence and findings argument waives challenges to such evidence and argument and that the Government concedes that the lower court’s reasoning was in error. We agree with the Government that a mere failure to object to the admission of evidence and to findings argument constitutes forfeiture, not waiver. United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018); United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). We further note that the Government has argued for the first time in this Court that Appellant affirmatively waived his challenges to the admission of character evidence and argument. We leave this argument for the lower court to address on remand.

Accordingly, it is, by the Court, this 19th day of July, 2018,

ORDERED:

That the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).

Disclosure: I represent Major Burris as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Case Links:
 ACCA decision
• ACCA decision on reconsideration
 Blog post: CAAF grants
 Appellant’s brief 
 Appellee’s (Army Gov’t App. Div.) brief
 Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• Blog post: CAAF summary decision