In United States v. Henegar, __ M.J. __ (N.M. Ct. Crim. App. Aug. 18, 2016) (link to slip op.), the NMCCA addresses the apparent tension between the Article 56 mandatory minimum punishment of dismissal or dishonorable discharge for a conviction of an attempt to commit certain sex offenses, and language in the Manual for Courts-Martial that states:
Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case . . . shall any mandatory minimum punishment provisions apply . . .
MCM, Part IV, ¶4.e.
Writing for the court, Senior Judge Palmer explains that the statute prevails and the mandatory minimum applies:
we cannot effect a Presidential directive which “clearly contradicts the express language of the Code,” even if it purports to “unambiguously give an accused greater rights than those conveyed by higher sources[.]” United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998). Indeed, the Rules for Courts-Martial acknowledge that a Congressional statute imposing a mandatory minimum must prevail, even if it precludes a court-martial from adjudging a lesser punishment to the benefit of the accused. See RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (“[E]xcept when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual”) (emphasis added).
Here, the appellant pleaded guilty to a specification of attempted sexual assault of a child, Article 120b(b), UCMJ, in violation of Article 80, UCMJ. Congress unambiguously provided in Article 56(b), UCMJ, that punishment adjudged for this offense “must include, at a minimum . . . [a] dishonorable discharge.” Article 56(b), UCMJ, is coherent within a statutory scheme (including Articles 18 and 56(a), UCMJ) that generally allows the President to set limits on punishment. But Congress’s specific mandatory minimum punishment statute prevails over statutes allowing the President to generally limit minimum punishment. We find the President’s statement in MCM, Part IV, ¶4.e, that no “mandatory minimum punishment provisions apply” to Article 80, UCMJ, clearly contradicts Article 56(b), UCMJ, for attempted sexual assault of a child (among other offenses). Thus, we conclude the mandatory dishonorable discharge term, as set forth by Congress, applies to the appellant.
Slip op. at 5-6 (marks in original).