Last week the Air Force CCA issued a published decision in United States v. Fields, __ M.J. __, No. S32239 (A.F. Ct. Crim. App. Mar. 24, 2015) (link to slip op.). The appellant pleaded guilty at a special court-martial to failure to obey a lawful order and wrongful use of cocaine on divers occasions, in violation of Articles 92 and 112a. He was sentenced to confinement for four months, forfeitures for four months, reduction to E-1, and a bad-conduct discharge.

The CCA’s opinion discusses two interesting issues. The first issue involves application of the ultimate offense doctrine to the plea of guilty to failure to obey a lawful order – in this case it was a restriction order. The second issue involves the following totally outrageous conduct by a Master Sergeant (E-7):

After the sentence was announced, the first sergeant, MSgt JB, ordered the appellant into the nearby restroom. SSgt AD was also present. MSgt JB told the appellant that he was reduced to E-1 and that MSgt JB did not want him to be out of uniform. MSgt JB braced himself against the appellant’s shoulder and then, using his hand and either a key or small knife, ripped the stripes off his service dress uniform and then off his shirt. The appellant was visibly upset when he returned to the courtroom. Trial defense counsel immediately reported the incident to trial counsel and the staff judge advocate. Security forces was also notified of the alleged assault. When questioned by security forces, MSgt JB waived his Article 31, UCMJ, 10 U.S.C. § 831, rights and admitted to this conduct with the explanation that he thought the reduction was immediate.

Slip op. at 4. The appellant was an Airman First Class (E-3).

The appellant was has a serious cocaine problem, and he voluntarily sought treatment. He was admitted to an in-patient program, but after completing that program he sought assistance from his command because he was worried about his own safety. He then relapsed, and he was issued an order restricting him to base except for medical appointments:

The appellant’s First Sergeant, Master Sergeant (MSgt) JB, informed the appellant on 17 and 18 January [2014] that his commander, Lieutenant Colonel SM, had given him an order. The commander’s order was that the appellant was restricted to base except for travel to and from medical appointments and mental health appointments. The appellant understood the order and knew he had a duty to obey the order. The appellant explained that the reason the order was given was the following: “It was basically for my safety and because I couldn’t stop using on my own. So it was to protect me from going out and using [cocaine].” The appellant admitted it was a lawful order which he had a duty to obey, and the order was explicit that he was to “[g]o to [his] treatment and come back.” The appellant violated the order by going to a treatment appointment but then not returning immediately to base. Instead he brought two females whom he had met to Wal-Mart; he then escorted one of them to a friend’s house off-base, and he stayed at this off-base residence for the evening. The civilian female returned to base with the appellant and later informed investigators that the appellant had used cocaine the previous evening.

Slip op. at 2-3.

The appellant pleaded guilty to a violation of Article 92 for violating the restriction order, and the military judge accepted the plea. However, on appeal, the appellant asserted that the pleas should not have been accepted, asserting that the ultimate offense was breaking restriction, not violating a lawful order. The CCA considers CAAF’s recent decision in United States v. Phillips, 74 M.J. 20 (C.A.A.F. 2015) (CAAFlog case page), and rejects the appellant’s argument with the following analysis:

Our superior court has recently examined this issue in the context of Article 90, UCMJ, 10 U.S.C. § 890, and clarified that we are to rely solely on the standard established in the Manual for Courts-Martial (MCM). United States v. Phillips, __ M.J. __ 14-0199/AR (C.A.A.F. 6 January 2015).

Since enactment of the UCMJ, the President has recognized the ultimate offense doctrine as it applies to the offense of disobeying a superior commissioned officer under Article 90, UCMJ: “Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under [Article 90].” Manual for Courts-Martial, United States (MCM) ch. XXVIII, ¶ 169.b. (1951 ed.); accord MCM pt. IV, ¶ 14.c.(2)(a)(iv) (2012 ed.)

Phillips, slip op. at page 5.

Phillips was an Article 90, UCMJ, case and our superior court expressly noted that the application of the ultimate offense doctrine as applied to Article 92, UCMJ, 10 U.S.C. § 892, was not before them. We find the logic highly persuasive and extend the same reasoning to Article 92, UCMJ. In describing the lawfulness of orders, Article 92, UCMJ, refers to Article 90, UCMJ, including the explanation listed above. MCM, Part IV, ¶ 16.c.(1)(c) (2012 ed.).

We consider the environment in which the order was given to determine if the “ultimate offense” doctrine applies. United States v. Landwehr, 18 M.J. 355, 357 (C.M.A. 1984). Here the appellant had voluntarily sought treatment for his cocaine addiction and was admitted to in-patient treatment. Three days after his release from the month-long in-patient treatment program, the appellant sought help from his unit because he feared for his own safety and decided to turn himself into law enforcement for his drug use. On 31 December 2013, the appellant was exhibiting signs of narcotics withdrawal and admitted that he used cocaine earlier that morning, which was confirmed by urinalysis testing. The appellant also had two additional urinalysis tests that indicated he was using cocaine. Considering all the evidence regarding the order, to include the circumstances surrounding the order and the purpose of the order, we conclude that the ultimate offense doctrine is not applicable to the appellant’s case. The military judge did not abuse his discretion in accepting the appellant’s guilty plea.

Slip op. at 3-4.

Phillips was about Article 90 (willful disobedience of a superior commissioned officer), and Judge Stucky’s opinion for a unanimous CAAF largely focused on the fact that the Manual for Courts-Martial includes the following language implementing Article 92, but not for Article 90:

Note: For (1) and (2), above, the punishment set forth does not apply in the following cases: if in the absence of the order or regulation which was violated or not obeyed the accused would on the same facts be subject to conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that specifically prescribed elsewhere for that particular offense.

MCM, Part IV, ¶ 16.e (erroneously omitted from the 2012 MCM, as discussed here). Unlike Phillips, Fields is an Article 92 case, and so this punishment limitation applies. In fact, one of the Phillips trailer cases addressed this specifically:

No. 14-0619/AR. U.S. v. Aaron J. Twinam. CCA 20120384. On consideration of the granted issue, and the judgment of the United States Army Court of Criminal Appeals, United States v. Twinam, No. 20120384 (A. Ct. Crim. App. Mar. 7, 2014), we conclude that Appellant is not entitled to relief.  The maximum punishment for violations of Article 92, UCMJ, 10 U.S.C. § 892 (2008), does not apply “if the violation of failure to obey is a breach of restraint imposed as a result of an order.”Manual for Courts-Martial, United States pt. IV, ¶ 16.e. Note (2008 ed.)  Although the military judge did not note that he was limiting the maximum punishment for the Article 92 offense, the maximum punishment did not change.  Article 19, UCMJ, 10 U.S.C. § 819 (2012) (setting the statutory maximum confinement that can be imposed by a special court-martial at one year).  Appellant pled guilty to desertion, numerous AWOLs and failures to go, wrongful use of cocaine and marijuana, and larceny of computer materials with a value greater than $500.  Articles 85, 86, 112a, 121, UCMJ, 10 U.S.C. §§ 885, 886, 912a, 921 (2008). The maximum punishment for these offenses, separate from any Article 92 offense, exceeded the statutory jurisdiction of the special court-martial.  The convening authority, acting in accord with the pretrial agreement, disapproved Appellant’s sentence to confinement in excess of four months.  Accordingly, under the circumstances of this case, the military judge’s omission “did not substantially influence the sentence and materially prejudice Appellant’s substantial rights.”  United States v. St. Blanc, 70 M.J. 424, 430 (C.A.A.F. 2012) (citing Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006)).  Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

CAAF daily journal, February 11, 2015 (emphasis added). The AFCCA’s conclusion in Fields that “the ultimate offense doctrine is not applicable to the appellant’s case,” slip op. at 4, appears to conflict with CAAF’s conclusion in Twinam. But, considering the appellant pleaded guilty at a special court-martial, there’s likely no prejudice (just as in Twinam).

On the second issue, the CCA rightly finds the Master Sergeant’s conduct to be totally unacceptable:

Although there is no evidence that the appellant was paid at a reduced rate or reduced in rank in any official records, there is evidence that the appellant was publicly required to wear a torn uniform from which his rank had been forcibly removed—an intended loss of military status. Furthermore, this was the desired outcome of the first sergeant’s actions in terms of visibly and immediately reducing the appellant’s rank. The first sergeant’s ignorance of the law does not excuse his actions. We find a violation of Article 57, UCMJ.

Slip op. at 5. So the CCA provides relief:

We conclude that the first sergeant, while acting under the mantle of command authority, intentionally engaged in action to prematurely punish the appellant. Pursuant to our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we order a remedy that is appropriate to remove any error. See United States v. Taylor, 47 M.J. 322, 324 (C.A.A.F. 1997). Because the error was limited to an untimely attempt to effectuate a reduction in rank, we do not affirm that portion of the sentence.

Slip op. at 5. At first glance this relief might seem meaningless due to the automatic reduction imposed by Article 58a, but that provision does not apply to the Air Force:

9.26.3. Application of Article 58a, UCMJ. The provisions of Article 58a do not apply to the Air Force. All reductions in grade will be based upon adjudged and approved sentences.

AFI 51-201, Administration of Military Justice (2013).

Considering this is a published opinion (I assume because of the ultimate offense doctrine issue), I think it worthy of certification to CAAF as a Twinam trailer.

8 Responses to “The ultimate offense doctrine (and illegal punishment) at the AFCCA”

  1. Brian Bouffard says:

    Interesting that the USAF is exempted from Article 58(a).  How did they do that?

  2. Zachary D Spilman says:

    Secretarial authority.

    §858a. Art. 58a. Sentences: reduction in enlisted grade upon approval

    (a) Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E–1, as approved by the convening authority, that includes-

    (1) a dishonorable or bad-conduct discharge;

    (2) confinement; or

    (3) hard labor without confinement;

    reduces that member to pay grade E–1, effective on the date of that approval.

  3. stewie says:

    Yep, AR 27-10 exempts out hard labor without confinement.

  4. afjagcapt says:

    “Totally outrageous conduct” notwithstanding, I can happily report that the MSgt in question continues to serve as a unit First Sergeant. Now I’m not defending what he did as that was obviously inappropriate and, almost more importantly, a problem he easily could have avoided had he taken 2 seconds to find and ask any JAG in the legal office (and Eglin has plenty of them); all that aside, I would happily serve with a hard-charger like this guy anytime. [Note: I was not involved in any way in this case, though I am familiar with some of the folks who were.]

  5. Passing By says:

    A:  “I would happily serve with a hard-charger like this guy anytime.”
    Q:  Alex, “What are quotes from Lt Col Oliver North’s FitReps?”

  6. Tom Booker says:

    Where was courtroom security?  Where was the accused’s defense counsel?  Where was the trial counsel?  Where was the adult leadership?  How on Earth does this happen?
     
    Look, I realize that sometimes courtroom/courthouse security is the tail that wags the dog, perhaps too vigorously, but this incident, if the accounts are correct, shows a complete breakdown in discipline.  We pride ourselves on discipline and professionalism; this demonstrates neither, on any number of levels.
     
    And no, I’m not being bombastic or hyperbolic here.
     
    Respectfully, LTB

  7. David Bargatze says:

    @afjagcapt, “obviously inappropriate” + “easily avoided” = “boneheaded move.” That’s not to say he’s necessarily a bonehead, but kicking an Airman who’s already down wasn’t a great data point. He chose to physically demean and belittle not just any Airman, but his Airman. He issued an unlawful order and then physically enforced it, apparently causing the Airman some degree of distress. Whether the first sergeant offered a sincere apology would be another useful data point in evaluating whether I would “happily serve” with him. (To be clear, I’m not asking. You seem to have more data points, and I’m content to trust there’s more context behind your judgment than is apparent in this thread.)
    Without knowing the first sergeant’s motivation and how he internalized the (hopefully immediate and clear) correction he received, then we’re not in a position to condemn. At least I’m not, but that may be cause my primary objection to serving with boneheads is that two is one too many, and I was here first.

  8. afjagcapt says:

    @ pb, tb, & db: after reading your comments and mine again: mea culpa. I was too flippant in my tacit approval of what really was a stupid decision that was probably taken as much from frustration as it was from any real desire to enforce standards. When you’re right, you’re right and when you’re (I’m) wrong, you’re wrong. This was a wrong-headed thing to do and I shouldn’t have seemed to condone it. Hopefully the shirt learned something in reflecting on this; I think I did.