In United States v. Joseph, No. 201300460 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.), a three-judge panel of the NMCCA concludes that the finding of guilty of making a false official statement is defective, and must be reversed, because the members:
excepted the following words from the Specification: “made to Naval Criminal Investigative Service agents . . . an official statement to wit.” In place of the excepted language the members substituted the words, “provided an affirmative response to NCIS that she had been raped by [Sgt MP].”
Slip op. at 4. The false statement was an accusation of rape made by the appellant (a female corporal) after she engaged in sexual intercourse with MP (a male, also a corporal at the time). Shortly after that encounter, the appellant discovered MP engaging in sexual intercourse with her female roommate. Then:
After discovering PFC RC [the roommate -z] and Cpl WP [the male -z] together, the appellant left her room and spent the night in her friend, Cpl EM’s, room. Cpl EM testified that the appellant was clearly upset and confided that she caught Cpl WP having sex with her roommate right after she had sex with him. Cpl EM also testified that the appellant said she “was going to do anything to ruin [Cpl WP’s] life.”
Slip op. at 3. A special court-martial composed of officer members convicted the appellant, contrary to her pleas of not guilty, of violating a lawful general order (wrongfully engaging in sexual activity in the barracks) and making a false official statement, in violation of Articles 92 and 107. The members sentenced the appellant to the jurisdictional maximum punishments of confinement for 12 months, reduction to E-1, forfeiture of $1,010.00 pay per month for 12 months, and a bad-conduct discharge. The convening authority approved only 120 days of the adjudged confinement.
Writing for the panel, Senior Judge Fischer finds that the members’ action excepted the element of an official statement from the false official statement charge, resulting in a finding of not guilty of that offense. As a result, the CCA approves only the finding of guilty of the orders violation, and it reduces the sentence to confinement for 30 days, forfeiture of $1,010.00 pay for one month, and reduction in rate to pay grade E-3 (and no punitive discharge).