The Air Force CCA finds that an appellant (and, presumably, any appellant) lacks standing to obtain judicial enforcement of an Air Force Instruction
In a published decision in United States v. Leblanc, __ M.J. __, No. 38396 (A.F. Ct. Crim. App. Mar. 26, 2015) (en banc) (link to slip op.), the Air Force CCA holds that even though the punitive provisions of a previous version of Air Education and Training Command Instruction (AETCI) 36-2909, Professional and Unprofessional Relationships (2 March 2007), did not comply with all of the requirements of Air Force Instruction 33-360, Communications and Information, for issuance of publications enforceable as punitive under Article 92, the appellant (who pleaded guilty to violations of AETCI 36-2909 for his improper relationships with military trainees) “lacks standing to enforce” the dictates of AFI 33-360. Slip op. at 10.
Judge Teller writes for the court. Senior Judge Mitchell, joined by Judge Contoveros, dissents in part, finding that the Air Force “is bound by those requirements [of AFI 33-360] and cannot prosecute an individual under Article 92(1), UCMJ, 10 U.S.C. § 892(1) for violating a regulation that does not comply with those requirements.” Slip op. at 14.
AETCI 36-2909 prohibits, among other things, sexual relationships between Air Force instructors and trainees. The appellant was an instructor who had multiple such relationships, eventually pleading guilty to violating two paragraphs of the AETCI (in addition to other misconduct). However, on appeal the appellant asserted that his pleas should be reversed because the two paragraphs of the AETCI do not include specific language that the failure to obey them is a violation of Article 92, as so they are unenforceable as punitive under the UCMJ. The appellant’s assertion is based on the requirement of AFI 33-360 that each punitive paragraph in a publication contain such specific language:
22.214.171.124. Punitive Language. Most of the recommended language used in publications does not readily put the reader on notice that the publication is punitive in nature. Use language that expresses the mandatory nature of the provisions, such as “will,” “will not,” “shall,” “shall not,” “must,” “must not,” etc. Paragraphs containing mandatory provisions or prohibitions must state that a failure to obey is a violation of Article 92 of the UCMJ. This statement should accompany each mandatory provision or prohibition, or may, if clear, refer to a series of mandatory provisions or prohibitions listed within a specific paragraph.
Slip op. at 6 (quoting AFI 33-360) (emphasis added). Of note, the AFI was updated after Appellant’s court-martial, however it still includes the requirement that the punitive language “must also be included in the specific punitive paragraph(s) (or sections) of the publication.” ¶ 126.96.36.199, AFI 33-360 (Sep. 25, 2013) (available here).
Judge Teller applies the Accardi doctrine to analyze whether the AFI creates an enforceable obligation. See generally United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Judge Teller writes that “not all regulations are designed to create rights that may be enforced by an accused in an action under the UCMJ, but ‘it is well-settled that a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests.'” Slip op. at 6 (citations omitted). See also, for example, United States v. Dillard, 8 M.J. 213 (C.M.A. 1980) (per curiam) (reversing after concluding that evidence should have been excluded for failure to follow a regulation requiring that a search authorization be issued in writing). Yet Judge Teller and the majority conclude that the appellant lacks standing to enforce the AFI:
Drafters of punitive instructions must abide by the requirements of AFI 33-360. The appellant in this case argues that they failed to do so. Where we part company with the dissent is not in whether the drafters may be held to account for any such failure, but whether the appellant has standing to use that failure to excuse his willful violation of a provision of which, by his own admission, he was completely aware and which he believed he had a duty to obey.
Accordingly, we find that although AETCI 36-2909 did not meet all requirements of AFI 33-360, the cited provisions were not intended to protect personal liberties or interests, and the appellant lacks standing to enforce them. Any challenge to the providence of his pleas or the legal sufficiency of his conviction on that basis does not constitute an error materially prejudicial to the substantial rights of the appellant. See Article 59(a), UCMJ, 10 U.S.C. § 859(a).
Slip op. at 10 (emphasis added).
While this case involves facts that are unique to the Air Force, the majority’s opinion is significant because by finding that the appellant lacks standing (rather than merely interpreting AFI 33-360 in a way to deny relief in this particular case, or even applying the doctrine of guilty plea waiver) the CCA denies judicial relief to any airman who might challenge a regulation for failure to comply with the AFI – even one who (unlike the appellant in this case) contests the charge at trial and asserts that he did not realize that it was punitive.
That blanket denial is similar to what the NMCCA did in its recent published decision United States v. Atkinson, __ M.J. __, No. 201400284 (N-M. Ct. Crim. App. Mar. 26, 2015) (discussed here), where that court found that a court-martial lacked jurisdiction to grant credit for unlawful pretrial punishment. Ironically, Atkinson and Leblanc were decided on the same day.
I think it perplexing that it is appellate military judges on the Court of Criminal Appeals, and not the civilian judges of CAAF, who impose such rigid limits on the ability of a court-martial to grant relief. While these appellate judges may well consider the appellants in Atkinson and Leblanc undeserving of further relief, their actions have tied the hands of their trial stage brothers in arms.