Now that the Lakin case has moved away from the guano crazy birther defense devised by Paul Rolf Jensen, it seems time to consider whether LTC Lakin is actually guilty of the charges he faces. As to Charge I and its specification, the answer seems to be, “Not necessarily.”
LTC Lakin faces two charges with a total of five specifications. Charge II alleges an Article 92 violation supported by three specifications of disobeying a lawful order and one specification of willful dereliction of duty. (Two pairs of specs appear duplicate one another– one (Spec 3) alleges failure to report to Fort Campbell as an orders violation and one (Spec 4) alleges the same failure as a willful dereliction of duty; two specs (Specs 1 and 2) appear to allege failure to report to the brigade commander’s office as a violation of two separate commissioned officers’ orders.)
Charge I alleges a missing movement. Here’s the spec:
In that Lieutenant Colonel Terrence L. Lakin, U.S. Army, did, at or near Arlington, Virginia, on or about 12 April 2010, through design, miss the movement of U.S. Airways Flight Number 1123, departing from Baltimore/Washington International Airport arriving in Charlotte, North Carolina, in order to deploy for a Temporary Change of Station in support of Operation Enduring Freedom with the 32nd Calvary Regiment, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, with which he was required in the course of duty to move.
So LTC Lakin is charged with missing movement by failing to take a commercial flight from BWI to Charlotte. Does missing such a commercial flight constitute a missing movement offense? Here’s what CMA had to say on that subject:
[T]he Government presented no evidence that appellant was required to travel aboard that specific aircraft. In fact, the evidence is to the contrary. Because appellant was issued a “Category Z” ticket, he could exchange or cancel the ticket by dealing directly with the airline, without approval or intervention by any military official. If he failed to use the ticket, the Government would not be charged for the ticket, and the seat would be available to any other commercial passenger. There is no evidence that there would have been any impact on military operations if appellant had taken an earlier flight or used alternate means of travel to arrive at his new duty station on time. See United States v. Gibson, 17 MJ 143, 144 (CMA 1984) (absentee who was given ticket for commercial flight back to duty station but missed flight not guilty of missing movement). Accordingly, we hold that the Government failed to prove that appellant was required to move with a specific ship, aircraft, or unit.
United States v. Kapple, 40 M.J. 472, 473-74 (C.M.A. 1994).
In a published 2004 guilty plea case, ACCA distinguished Kapple. United States v. Gonzalez, 60 M.J. 572 (A. Ct. Crim. App. 2004). In Gonzalez, ACCA upheld two out of three missing movement convictions because the accused had been ordered not to change those two ticketed flights.
So a legitimate defense to the missing movement charge might be available to LTC Lakin. If he was simply issued travel orders through DTS that identified a particular flight as part of his itinerary from the D.C. area to Fort Campbell but he remained free to change that flight, then Kapple and Gonzalez would appear to prevent him from being found guilty of missing movement. Even if LTC Lakin were to plead guilty to missing movement, without facts establishing that LTC Lakin wasn’t authorized to change his flight or that no other flight could have taken him to Fort Campbell on time, Judge Lind would be precluded from accepting his guilty plea.
Because LTC Lakin waived his Article 32 investigation, we have no information as to whether LTC Lakin received a thou-shalt-not-alter-thy-itinerary order or not. (If not, this issue points to the wisdom of holding an Article 32 investigation even where the accused has waived the right to a 32–it can help the government perfect its charges.)
If the government can’t show that LTC Lakin was ordered not to change his itinerary, then he’ll probably ultimately be convicted of no more than two offenses, since a conviction for both Specs 1 and 2 of Charge II seems unlikely, as does a conviction for both Specs 3 and 4. At the very least, the two pairs will likely be held multiplicious for sentencing purposes. Being found guilty of either Spec 1 or Spec 2 and either Spec 3 or Spec 4 (or being subject to punishment for only one from column A and one from column B) would drop his maximum confinement time down to a year. It makes one wonder why the government didn’t charge LTC Lakin with willful disobedience of a superior commissioned officer’s orders — each spec of which would carry a 5-year maximum. Since specs 2 and 3 allege violations of orders issued by bird colonels, it appears that either or both of those offenses could have been charged under Article 90.