In this post from last June I analyzed the Army CCA’s opinion in United States v. Murphy, 73 M.J. 699 (A. Ct. Crim. App. May 30, 2014) (en banc). In that decision the CCA found that “ammunition which contains gunpowder or smokeless powder is unambiguously an explosive as those terms are expressly listed in the definition [in the Manual for Courts-Martial], with gunpowder as the very first example.” 73 M.J. at 701.
One consequence of the CCA’s decision is that the wrongful loss, sale, theft, damage, or destruction of just a single round of ammunition, or the failure to secure the same when captured or abandoned, is punishable by a maximum of confinement for ten years and a dishonorable discharge. See Appendix 12, MCM, Arts. 103, 108, 121. See also Art. 80 (attempts), Art. 81 (conspiracy), and Art. 134 (solicitation).
On New Year’s Eve, CAAF granted review:
No. 14-0767/AR. U.S. v. Brian A. Murphy. CCA 20120556. 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 OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT AMMUNITION CONSTITUTES AN EXPLOSIVE FOR PURPOSES OF THE SENTENCE AGGRAVATOR OF ARTICLES 108 AND 121, UCMJ.
Briefs will be filed under Rule 25.