AFCCA today issued a published opinion in United States v. Thompson, __ M.J. ___, No. ACM 37380 (A.F. Ct. Crim. App. June 3, 2010). The opinion discusses what dispositions will and won’t be considered as part of a sentence disparity analysis. Where a co-actor’s case is resolved by NJP, the Air Force Court holds, it will be considered as part of a sentence disparity analysis. But where no disciplinary action has been taken against a co-actor, that case won’t be considered for sentence disparity purposes. Senior Judge Jackson wrote for a unanimous panel.
A1C Thompson pleaded guilty to using ecstasy and marijuana on divers occasions. At a GCM, he was hammered with confinement for a year, a BCD, total forfeitures, and reduction to E-1. The CA reduced the confinement by three months in an act of clemency.
AFCCA first rejects some highly case-specific IAC allegations. The court then addresses the sentence disparity issue.
The court notes that “there is little doubt that A1C JC and A1C JG were the appellant’s co-actors.” The court continues:
[A]ppellant was court-martialed for his drug use but A1C JG received only non-judicial punishment for his drug use. Under such circumstances, a sentence comparison is warranted with A1C JG’s case. Conversely, a sentence comparison is not warranted with A1C JC’s case because there is no evidence that a final disposition has been made in his case, and a sentence comparison of closely related cases is warranted only in cases with a final disposition.
Id., slip op. at 6 (internal citation omitted).
AFCCA then drops a footnote observing:
Although Airman First Class (A1C) JC testified at the appellant’s court-martial that he had not been tried or held criminally accountable for his crimes and did not expect to be held criminally accountable, there is no evidence in the record that his superiors will not hold him criminally accountable. We refuse to speculate why A1C JC had not been held criminally accountable for his crimes and reach the only finding supported by the record–there has not been a final disposition in his case.
Id., slip op. at 6 n.6.
AFCCA holds that there’s a rational basis for the difference between A1C Thompson’s and A1C JG’s punishments and concludes that A1C Thompson’s sentence is appropriate.