On Tuesday CAAF granted review in this Air Force case:
No. 17-0404/AF. U.S. v. Vashaun M. Blanks. CCA 38891. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
IN LIGHT OF THIS COURT’S DECISION IN UNITED STATES v. HAVERTY, 76 M.J. 199 (C.A.A.F. 2017), DID THE MILITARY JUDGE ERR WHEN HE INSTRUCTED THE MEMBERS APPELLANT COULD BE CONVICTED OF NEGLIGENT DERELICTION OF DUTY?
Briefs will be filed under Rule 25.
The CCA’s opinion is available here and reveals that the appellant was “charged with willful dereliction of duty for failing to provide adequate support to his wife over a time period that spanned his assignments to both Korea and the United Kingdom, [but] the members instead found Appellant guilty of the lesser-included offense of negligent dereliction of duty.” Slip op. at 5. The CCA decided the case a month before CAAF decided Haverty.
In the Army case of United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), a functionally-unanimous court applied the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to find that recklessness is the minimum mens rea (mental state) adequate to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.
Article 92(3) addresses a person who “is derelict in the performance of his duties.” Twenty-four years ago the court held “that the military judge properly instructed the members in this case that simple negligence is the proper standard for determining whether the nonperformance of military duty is derelict within the meaning of Article 92(3).” United States v. Lawson, 36 M.J. 415, 416 (C.M.A. 1993). In reaching that decision the court considered the legislative history of the Article, concluding that:
[T]he more reasonable interpretation of this new codal provision is that Congress rejected an exclusive culpable-negligence standard and intended, instead, to punish both types [simple and culpable/gross] of negligent-duty conduct under Article 92(3).
The new legislative term “derelict” was broad enough to include both degrees of negligence and incorporate Navy practice with Army and Air Force practice. Prior to enactment of the Uniform Code of Military Justice in 1950, the Army and Air Force also punished neglect of duty under the general article, Article of War 96. Para. 183a, Manual for Courts-Martial, U.S. Army, 1949 at 255. The Army interpreted the word “neglect” in the general article as simply an omission of conduct. See generally Snedeker, supra at 616. This practice is also referred to in the legislative history with a comment that it was now punishable under the new Article 92(3). Accordingly, it is our conclusion, at the very least, that Congress intended to establish a simple-negligence standard for nonperformance-of-duty derelicts charged under this statute.
36 M.J. at 421. That conclusion, however, now seems to be in doubt.