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: 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.” ¶, 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.

10 Responses to “The Air Force CCA finds that an appellant (and, presumably, any appellant) lacks standing to obtain judicial enforcement of an Air Force Instruction”

  1. Advocaat says:

    To anyone who has grappled with the Pythonesque language of AFI 33-360, the experience no doubt shortened your life like smoking a few packs of cigarettes but without the benefit of a nicotine buzz.  And the majority earned a laugh with this gem on its way to declaring the house always wins, which should be read out loud in the style of John Cleese:

    The point of this analysis is not for this court to pass judgment on the advisability of any particular provision in AFI 33-360.

  2. Mike "No Man" Navarre says:

    If the regulation makes the instruction unenforceable without the magic language, isn’t there a jurisdictional defect that can be challenged by anyone at any time?

  3. Zachary D Spilman says:

    I don’t follow Mike. How would it be jurisdictional?

  4. Mike "No Man" Navarre says:

    How can the convening authority charge a violation of an order that they were without authority to enforce (i.e. charge)? 

  5. Dew_Process says:

    “[T]he military is not free to disregard its own regulations or federal statutes. Where military agencies have established their own procedures and regulations, we have acted to insure that they are followed. See Smith v. Resor, supra; Hammond v. Lenfest, 398 F.2d 705, 710 (2d Cir. 1968).”  Kurlan v. Callaway, 510 F.2d 274 (2nd Cir. 1974).

  6. Zachary D Spilman says:

    I don’t think an unlawful order, or an unconstitutionally vague order, or even an indisputably insufficient order (say it existed only in the mind of the commander, but was never communicated), creates a jurisdictional defect. A court-martial would still have subject matter jurisdiction over the alleged violation of Article 92, and personal jurisdiction over the service member accused.

  7. Phil Cave says:

    Another golden thread in the military justice tapestry is that “either the President in promulgating the Manual for Courts-Martial or the Armed Services by adopting regulations can go even further than the Constitution and the Uniform Code in providing safeguards for military personnel.”  United States v. McGraner, supra at 414-15.  Regarding these regulations, we have held that a service must abide by them where the underlying purpose of the regulation is the protection of personal liberties or interests. See United States v. Dunks, 1 M.J. 254 (C.M.A. 1976).  More recently the Supreme Court and this Court have recognized that the Goverment is bound by its own regulations, especially when the regulations confer a right or benefit on an individual.  See United States v. Caceres, 440 U.S. 741 (1979); United States v. Pollard, 27 M.J. 376 (C.M.A. 1989); United States v. Strozier, 31 M.J. 283 (C.M.A. 1990).
    Is the right to notice that conduct is punishable such a right?  I had always thought so, but . . . 

  8. RKincaid3 (RK3PO) says:

    It seems to me that we are all missing the vitue of the tried and true “Do as a I say and not as I do” standard, as well as the famously effective “Because I said so” standard.  Both standards work exceptionally well in all dictatorial environments, from the home to the military until due process rears its ugly head.
    Due process??   PShaaaa!  How quaint.  It just interferes and makes everything so messy.  Good God, Man!  We are talking about discipline, not justice.  Until we get that in our thick skulls, we will be screwing up the world that those in power want to make–for our own benefit, of course.  Subjective absolutes demanded by the powers-that-be are always done to us for our own individual and collective best interests!!

  9. Neutron73 says:

    Such true words.  But in Elitist America, like Soviet Russia, justice and law only apply to you!! (in my best Yakov Smirnov voice)

  10. RKincaid3 (RK3O) says:

    Amen, Yako–um–Neutron!