Earlier this year I theorized that CAAF’s decision in United States v. Spicer, No. 12-0414/AR, “presumably prohibits virtually-all Article 107 prosecutions for false statements to civil authorities investigating civil offenses,” and I remarked that CAAF’s decision in the similar case of United States v. Capel, No. 12-0320/AF, “convinces me that this is exactly the case.” Now comes the NMCCA to prove me right:

While assigned to the USS ENTERPRISE (CVN 65), the appellant stole five brass valves, military property with a replacement value of over $33,000.00. . . . The appellant discovered the valves while cleaning, removed the valves from the ship, and subsequently attempted to sell the valves as scrap metal to a private metal salvage business.

Salvage business employees . . . contacted SP, a civilian loss investigator for the company. SP traveled to the salvage business and interviewed the appellant in an effort to determine if the valves were stolen. At the time of the interview, military authorities had not yet initiated any investigation regarding the theft of the valves. SP did not interview the appellant at the request or direction of military authorities, but instead acted solely in her capacity as a civilian loss investigator for a private company. The appellant made a false statement to SP that he had been given permission by his supervisor to take the valves. SP subsequently contacted the Naval Criminal Investigative Service and reported the incident. The appellant’s false statement to SP formed the basis of the specification of Charge II, to which the appellant entered a plea of guilty.

United States v. Rush, No. 201200448, slip op. at 2-3 (N-M.Ct.Crim.App. Jun. 27, 2013) (unpublished). The CCA finds that there is a substantial basis to question the Appellant’s plea of guilty to making a false official statement because the statement was made to an employee of a private company, did not relate to Appellant’s official duties (noting, “for example” that Appellant did not appear in uniform or portray himself as on official command or military business), and there was no ongoing military investigation at the time. Slip op. at 4. Conviction reversed.

But Appellant also pleaded guilty, at a general court-martial composed of a military judge alone, to attempted sale of military property and larceny in violation of Articles 80 and 121, UCMJ. He was sentenced to confinement for ten months and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority suspended all confinement in excess of six months. Finding that the larceny and attempted sale “were the gravamen of the appellant’s misconduct,” the CCA affirms the sentence as adjudged. Slip op. at 5. The court also notes that “the facts and circumstances surrounding the improvident false official statement charge would have been admissible as aggravation evidence in sentencing.” Id.

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