Published CGCCA opinion grants Tardif relief; rejects novel Article 134 spec that failed to allege acts were wrongful
Here’s a link to CGCCA’s opinion in United States v. Hughey, 72 M.J. 809, No. 1363 (C.G. Ct. Crim. App. Apr. 3, 2013).
CGCCA notes presumptively unreasonable delay in the docketing of the case with the court following the CA’s action. The case was initially provided to CGCCA 87 days after the CA acted, but was rejected. It was then successfully docketed 110 days after the CA acted. The court finds that the delay was presumptively unreasonable, but did not rise to the level of a due process violation. But the court determines that it is appropriate to provide some modest relief pursuant to Tardif (setting aside 30 days of confinement that had already been served).
The court also set aside the finding of guilty to a novel Article 134 conviction because while the specification alleged that the accused’s conduct was prejudicial to good order and discipline, it didn’t include any words of criminality, such as “wrongfully.” CGCCA noted that an Article 134 spec “must include words of criminality to be legally sufficient.”
The spec alleged that the accused, a chief, told a petty officer third class, “‘You can’t do anything to me because I’m a chief,’ or words to that effect,” and told a fireman, ”‘You won’t get into trouble because I handle the Captain Masts,’ or words to that effect, which statements were prejudicial to good order and discipline in the armed forces.” CGCCA held that “the specification fails to state an offense by omitting words of criminality.”
Chief Judge McClelland wrote for a unanimous court.