Judge Ryan wrote for the majority in an opinion joined by Chief Judge Effron and Judge Erdmann.  Judge Baker concurred in the result.  Judge Stucky dissented.

Over the weekend, I’ll crunch some numbers and post some end o’ the term stats.

Judge Baker, writing for the Court, held that LCDR Diaz should have been allowed to put on evidence of his honorable motives in sending the detainee names to CCR to defend against the charge of Conduct Unbecoming an Officer.  Though finding error in excluding evidence of his honorable motives, the Court also found that the military trial judge’s exclusion of the evidence was harmless because the officer’s “obligations to adhere to naval and presidential directives regarding the handling of classified information” trumped any duty he felt he had to reveal the names of GTMO detainees. The Court held that the Supreme Court’s decision in Rasul v. Bush, which LCDR Diaz cited as the source of his duty to reveal detainee names, was not intended to “supersede in some manner [LCDR Diaz's] other legal and ethical obligations.”

On the irregular plea issue the Court did not take long to find that a plea to conduct unbecoming an officer for releasing “government information not for release” was not the same as releasing “classified documents.”  Thus, Judge Baker found that the military judge did not err in rejecting LCDR Diaz’s irregular plea.

The decision also rejected LCDR Diaz’s other argument which challenged the intent element of his conviction under the Espionage Act. In rejecting LCDR Diaz’s challenge to the intent element of his Espionage Act conviction, the Court credited the testimony of government witnesses that testified about the potential injury to the US posed by the information LCDR Diaz sent in the Valentine’s Day card. The Court also found that not only should LCDR Diaz have understood this potential injury, but that his surreptitious method of sending the names, placing them in a Valentine’s Day card, evidenced he likely did know the potential danger.

The issues, while fascinating for their political significance, are relatively run of the mill military justice issues–but between the snow storms and almost Malibu oral argument it was fun getting here.

A look through old MCMs indicates that Congress first criminalized housebreaking as a military offense in the 1920 Articles of War as part of Article of War 93.  But the “purely military offense” limitation didn’t appear in the 1921 MCM.  Rather, the concept first appeared in the 1928 Army MCM (which was actually printed in 1927):  ”The term ‘criminal offense’ includes any act or omission violative of the Articles of War, which is cognizable by courts-martial, except acts or omissions constituting purely military offenses.”  1928 MCM, ¶ 149e.

So it appears that at some point between 1921 and 1927, the purely military offense exception was introduced into the law.  Perhaps some enterprising TJAGLCS graduate student could attempt to run that to ground as part of a research paper.  The Army JAG Decisions Digests for 1921-1927 (which don’t appear to be online) might shed some light on the subject. I assume that hard copies of the Digests are available in the TJAGLCS library.

The majority opinion describes the two competing approaches for determining whether an offense is a purely military crime: 

Appellant believes that we should determine whether indecent acts is a purely military offense by reference to the elements of the offense itself; the Government believes that we should do so by looking at the gravamen of the act comprising the criminal offense and asking whether it is an act that is, or could be, a criminal offense under the law of any state or under federal law.

The majority adopted the elements approach.  CAAF notes that it followed an elements-based approach to the same question in last term’s Conliffe opinion and in the 1983 March opinion, where the court determined that UA was a “peculiarly military” offense.  (That’s “UA” in naval speak, not Air Forcese.)  CAAF also noted that this approach is more accessible to the non-lawyers who play such important roles in the military justice system.  The opinion dryly observed:  ”We are not convinced that the President expected these non-specialists to conduct a fifty-state survey before deciding whether to charge a servicemember with housebreaking.” 

The majority proceeded to decide that despite being an Article 134 offense at the time, indecent acts wasn’t a purely military offense, since (unlike some other UCMJ provisions) Article 134 applies to anyone “subject to this chapter” and under Article 2, various categories of civilians can be prosecuted for the offense; “the text of the UCMJ provides that Article 134, UCMJ, might be violated by persons who are not and never have been in the military.”  While some presidentially specified Article 134 offenses (such as fraternization and gambling with a subordinate) are limited to military members only — and are thus purely military offenses — indecent acts wasn’t such a limited offense.

In his separate opinion, Judge Baker argues that whether an offense is a purely military crime should be determined by examining “the gravamen of the offense, and not just the elements,” an approach he refers to as a “contextual analysis.”  Judge Baker offers malingering as an offense that should be considered purely military but that would be not be considered so under the majority’s elements test.  But one can easily imagine a situation where malingering would be applied to a civilian subject to the Code.  Article 2(a)(7) of the UCMJ subjects to court-martial jurisdiction “[p]ersons in custody of the armed forces serving a sentence imposed by a court-martial.”  So a long-term inmate at the USDB who has been discharged but remains confined would be subject to the Code.  And such a confined civilian might feign illness for the purpose of avoiding work, thus violating the letter of Article 115.  Under Judge Baker’s test, would such a potential application of Article 115 to a civilian remove malingering from the category of “purely military offenses”?

Despite declaring a metaphorical war on metaphors earlier this term, see United States v. Douglas, 68 M.J. 349, 357-58 (C.A.A.F. 2010) (Baker, J., dissenting), Judge Baker offers this metaphorical contrast of his approach with that of the majority:  ”while the expedience of the ‘elements-based’ approach may possess some superficial appeal, where we are implicating the application of military law to civilians, as the majority does here, we should paint with a fine contextual brush rather than a broad one of black letter law.” Personally, I prefer the Jackson Pollock drip technique. But that’s probably an idiosyncratic approach to construing an MCM provision.

Judge Baker closes by predicting that in future cases, CAAF will use a contextual approach rather than elements-based approach. But how many future cases are we going to see dealing with the narrow issue of whether an offense committed after an unlawful entry into a building or structure is a purely military offense? It will probably be a long time before CAAF finds itself reaching for a brush with which to paint that Article 130 landscape again.

More later.

After she testified that the alleged victims’ characteristics were “consistent . . . with a child who had been sexually abused or . . . a child who may have been sexually abused,” the military judge sua sponte instructed the members that “no one who testifies in this courtroom can know if someone else is telling the truth or lying,” and that it’s up to the members to determine a witness’s credibility.

On redirect, the witness testified about the frequency of children lying about sexual abuse, saying that it was less than “1 out of 100 or 1 out of 200.” The military judge once again intervened. He asked the witness:

[D]o you have any forensic, that is, scientifically accurate way of proving whether the child is telling the truth or not? In other words . . . the only way that you typically could know that is if the child later comes forth and says “Yes, I made it up,” or . . . unless that [defendant] ultimately confesses, you would ultimately never know who was telling the truth and who wasn’t, is that correct?

The witness agreed that was correct. Neither party made an objection to the witness’s testimony.

CAAF held that the witness’s “1 out of 100 or 1 out of 200″ testimony was error under United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). CAAF also held that the error was plain and obvious.

CAAF held that the error didn’t prejudice the defense due to the military judge’s remedial measures during the witness’s testimony.

CAAF also denied relief on post-trial delay grounds. It found that even assuming unreasoanable delay, the defense hadn’t sufficiently demonstrated prejudice. The court indicated that demonstrating that unreasonable appellate delay interfered with an appellant’s ability to obtain state unemployment payments could be prejudice for appellate delay purposes, but that the record was insufficient to establish such prejudice in this case. CAAF concluded “that the record does not demonstrate that it was Appellant’s leave status that kept him from receiving the benefits and that he would not have been denied on some other grounds.” The court explained, “The record in this case does not contain . . . authoritative evidence that a person in Appellant’s circumstances would have been eligible for unemployment benefits and received them once his appeal was final.” The court concluded “that, under the totality of the circumstances, the post-trial delay was harmless beyond a reasonable doubt.”

Is it just me, or is that final sentence inconsistent with previous portions of the opinion? The court had previously said that post-trial delay’s interference with receiving unemployment insurance could be the kind of prejudice that would lead to relief. The court then basically reasoned that the defense hadn’t carried its burden to demonstrate such prejudice. I understand that the absence of established prejudice could lead the court to conclude that there was no due process violation. But that seems different than saying that the delay was harmless beyond a reasonable doubt. In the body of the opinion, the court appears to be saying that the appellant might have received state unemployment benefits faster but for the appellate delay, but the defense didn’t sufficiently prove it. To say the post-trial delay was harmless beyond a reasonable doubt, wouldn’t CAAF have to conclude that the appellant definitely wouldn’t have received such benefits? If so, I don’t understand how CAAF reached that conclusion.

But there are a couple of fault lines between the majority and Chief Judge Effron and Judge Baker and those fault lines concern appellate procedure.  Footnote 1 of the majority opinion observes:

Appellant and the Government have also submitted three outstanding motions related to this case. “The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals.”  C.A.A.F. R. 30A(a).  While we may remand for further factfinding if an issue concerning an unresolved fact affects the Court’s resolution of the case, C.A.A.F. R. 30A(c), none of the documents that either party seeks to submit into the record are necessary to resolve the issues of this case.  As such, all three motions are denied.

Apparently one of the documents that the majority declined to accept was an affidavit from the assistant TC stating that he had provided a copy of a 2003 DOD Report at issue to the defense more than five months before the trial began.  Chief Judge Effron considered the information from the affidavit and determined that since the affidavit was provided to the defense well before trial, there was no prejudice from the military judge’s failure to order the report’s disclosure to the defense during an Article 39(a) session before the government turned over the report.  The majority doesn’t consider the information from the affidavit and concludes that the government wasn’t required to turn the report over to the defense. 

Both Chief Judge Effron and Judge Baker would also look at documents that the defense moved to submit that the defense claims should have been but weren’t provided to the defense during the discovery process.  After looking at those documents, Chief Judge Effron concludes they wouldn’t have made a difference.  Judge Baker, on the other hand, dissents from the portion of the majority opinion denying the defense motion to submit those documents to CAAF and the portion of the majority opinion finding the they weren’t sufficiently identified by the defense’s discovery request.  Judge Baker counters by asking how the defense could have identified these documents with greater specificity at the time of trial.

The central legal import of Graner is a warning to appellate counsel that any argument that depends on CAAF accepting evidence that isn’t already part of the record faces a significant hurdle.

More later.

According to the majority, the defense didn’t make a sufficient case at trial to require the production of the expert.  According to the dissent, which repeatedly cited Article 46, the defense did.

I’m an evangalist for the Gospel of Article 46, so my take on Lloyd may seem heretical.  But here goes.

I found myself nodding along with Chief Judge Effron’s dissent, which made an extremely strong case for why expert assistance was necessary in this case.  But here’s my heretical thought:  why didn’t the defense counsel have Lloyd hire a blood spatter expert?  For the very reasons that Chief Judge Effron articulated, it seemed to be really important to the defense’s case to have a blood spatter expert opine whether the physical evidence was more consistent with Lloyd having been the stabber or Lloyd’s friend having wielded the knife.  Had this  been a trial in civilian court, Lloyd wouldn’t have had an Ake v. Oklahoma right to a government-funded blood spatter expert, since he’s an E-4 and therefore isn’t indigent.  Had Lloyd hired a blood spatter expert for an initial consultation and found that the expert’s analysis would be helpful, the defense counsel could have then made a compelling case for the expert (or an adequate substitute with the same opinion) to be hired at government expense as an expert witness for the defense.

Of course, it’s possible that the defense counsel in this case did have Lloyd retain a private blood spatter expert whose analysis wasn’t helpful to the defense.  If so, we’ll never know that.  But I do wonder whether military defense counsel are sometimes too shy about asking their clients to pay for expert assistance.  Paying a blood spatter expert for a consultation in this case would have been far less costly than being convicted, locked up for a year, and then booted out of the Air Force with a BCD — especially if it was the grinning bear next to Lloyd who actually knifed the three guys in the bar.

More later.

Here’s the bottom line up front from Judge Ryan’s opinion:

This case presents the questions whether evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys was admissible under Military Rule of Evidence (M.R.E.) 414 (as evidence that Appellant had a propensity to commit sodomy with a child over the age of twelve but under the age of sixteen) or, alternatively, whether such evidence was admissible under M.R.E. 404(b) (to show motive, plan, or intent). We answer both questions in the negative. The computer filenames were treated as synonymous with possession or attempted possession of child pornography, which, under the facts of this case, we conclude is not a “qualifying” offense under M.R.E. 414. Nor, under the facts of this case, were the filenames admissible under M.R.E. 404(b) — the prejudicial effect of the evidence substantially outweighs whatever marginal relevance and probative value these computer filenames have to the charged offenses.

After reading the fact section of the opinion, I understand why my computer was reluctant to open the file.  I suspect some of the words in this opinion have never before appeared in the Military Justice Reporter. 

After trial, but before the convening authority took initial action, the United States Army Human Resources Command issued her administrative discharge orders. She also received a Department of Defense Form 214 (Certificate of Release or Discharge from Active Duty). Later, the convening authority approved the bad-conduct discharge.

Two months after the CA approved the BCD, ”HRC voided appellant’s discharge to the reserve component because it was erroneously issued.” Six days later, “Army personnel officials at Fort Benning, Georgia, voided appellant’s DD Form 214.”

 The issue in Estrada was whether to give effect to the honorable administrative discharge or the subsequently approved BCD.  CAAF unanimously construed Army Regulation 27-10 para. 5-16.b to void the administrative discharge and give efect to the BCD.

CAAF reasoned:

AR 27-10, para. 5-16 states that a “discharge certificate is void until the charge is dismissed or the convening authority takes initial action.” (emphasis added). The key words here are “void” and “until.” Void means “[o]f no legal effect; null.” Black’s Law Dictionary 1709 (9th ed. 2009). “Until” is commonly “used as a function word to indicate movement to and arrival at a destination” and means “up to the time that” or “till such time as.” Webster’s Third New International Dictionary 2513 (1986).

The juxtaposition of “void” and “until” in AR 27-10 is puzzling, since the former connotes a permanent cessation of legal effect, whereas the latter implies a temporary pause. But the operative word here is the subordinating conjunction “until,” which suggests that an administrative discharge issued after preferral of charges is ineffective but may become legally effective in the future. The use of the phrase “to suspend” earlier in the same paragraph supports this reading of the regulation. AR 27-10, para. 5-16.b (a charge sheet “will automatically act to suspend all favorable personnel actions”).

Thus, contrary to Appellant’s argument, “void until” does not mean that an administrative discharge promulgated after sentencing automatically remits a convening authority’s subsequent approval of a bad-conduct discharge. . . . We read AR 27-10 in accordance with this evident intent — that a convening authority’s subsequent approval of a punitive discharge supersedes a previous, erroneously issued, administrative discharge.

Garner punted on an interesting question that the granted issue appeared to present:  whether ”the ’substantial step’ requirement ” of an attempt to induce a minor to engage in sexual activity can be “satisfied where there was no evidence that the defendant intended to travel to meet the purported minor or to actually engage in sexual activity with her.”  Id., slip op. at 6.  But given the speed with which CAAF disposed of Garner, it wasn’t only a punt, but a quick kick.  Garner was the next-to-last case argued at CAAF this term, second only to its anagram, United States v. Graner.

In Garner, CAAF noted an interesting split between Seventh Circuit and Ninth Circuit case law — with the Ninth Circuit breaking from its stereotype by adopting the more prosecution-friendly approach.  Gunnery Sergeant Garner engaged in sexually explicit Internet chats with “Molly,” a screen name that Garner thought was being used by a 14-year-old girl but was actually being used by, say it with me, an  undercover cop.  CAAF explained:

Appellant contends that his plea to the attempt offense was improvident as a matter of law because he did not take a “substantial step” towards completing the offense. According to Appellant, the “substantial step” test, when applied to an attempt to commit an offense under § 2422(b), requires a specific arrangement for an actual rendezvous with the purported minor. In Appellant’s view, in the absence of such an arrangement, his conversations with “Molly” could have simply constituted “fantasy role playing.”

Appellant relies on United States v. Gladish, 536 F.3d 646, 650 (7th Cir. 2008), in which the Seventh Circuit concluded that the “substantial step” requirement of § 2422(b) was not satisfied where there was no evidence that the defendant intended to travel to meet the purported minor or to actually engage in sexual activity with her. The Government responds that this Court should rely on United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007). In Goetzke, the Ninth Circuit rejected the argument that specific travel arrangements were ecessary to establish a substantial step. The court concluded hat the defendant, by sending sexually explicit letters proposing a future meeting to a minor with whom he had prior ontact, had engaged in “grooming behavior,” which was sufficient to meet the substantial step requirement.  Id. at 1236-37. In the present case, the Court of Criminal Appeals cited Goetzke in the course of describing Appellant’s actions as “grooming behavior” sufficient to constitute a substantial step. Garner, 67 M.J. at 738-39.

Id., slip op. at 6-7.  Gladish is a Posner opinion while Goetzke is a per curiam. 

CAAF chooses not to pick a side between the Seventh and Ninth Circuits, ruling that under either standard, Garner’s provide inquiry was sufficient to uphold his conviction.  CAAF concluded:  “In light of Appellant’s own admissions during the providence inquiry, we conclude that the military judge did not abuse his discretion in accepting the plea.  In that posture, we need not address the parameters of an attempt offense under § 2422(b) where the record does not contain such admissions.” Id., slip op. at 8.

The decision calls to mind Judge Cox’s aversion to resolving unsettled substantive legal questions in guilty plea cases.  See, e.g., United States v. Byrd, 24 M.J. 286, 293 (C.M.A. 1987) (Cox, J., concurring in the result) (“I have often expressed my reservations about making substantive law on a guilty-plea record”); United States v. Reed, 24 M.J. 80, 86 (C.M.A. 1987) (Cox, J., dissenting) (“this guilty plea case is the wrong vehicle to use to make an earthshaking constitutional pronouncement or to set an otherwise proper plea aside as being improvident”).  Unless the Supreme Court steps in to resolve the Seventh Circuit/Ninth Circuit split, the issue of what is required to constitute a substantial step in an attempt to induce a minor to engage in sexual activity case will remain ripe for litigation in some future contested court-martial.

Roberts is a highly fact-specific opinion about the application of Military Rule of Evidence 412 and harmless error.  CAAF ruled:

We granted review in this case to determine whether the military judge erred in excluding evidence of ER’s relationship with another man (FL), evidence that Roberts asserts would have established a motive for ER to fabricate the rape allegation against him.

We agree with the Court of Criminal Appeals that under the circumstances presented in this case, the proffered evidence of ER’s alleged sexual relationship with FL was not admissible under M.R.E. 412.  We also agree with the lower court that the military judge erred in limiting the cross-examination of ER concerning the general relationship between ER and FL and specifically by not allowing any cross-examination of ER as to her cell phone call to FL immediately after the incident.However, we find those errors tob e harmless beyond a reasonable doubt and affirm the lower court.

Id., slip op. at 3-4 (citations omitted).

With the release of Roberts, just 10 cases argued this term remain undecided.

CAAF today reversed the Air Force Court for a second time in what is becoming the military justice appellate system’s version of Jarndyce v. Jarndyce.  United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. May 10, 2010).  Judge Baker wrote for a unanimous court.

Chief Judge Wise of the Air Force Court recused himself when his public remarks about the case became in issue following the first remand from CAAF.  He then sent an e-mail to the Judge Advocate General of the Air Force’s executive recommending that Senior Judge Francis be designated the chief judge for purposes of the case.  The same day, the Judge Advocate General designated Senior Judge Francis as chief judge and Senior Judge Francis selected the other members of the panel that heard the case and ultimately wrote the decision affirming the findings and sentence.

CAAF held:

The threshold question asks whether the chief judge of a court of criminal appeals may recommend to the Judge Advocate General an acting chief judge for a case in which the chief judge is recused. For the reasons stated below we answer this question in the negative, and we vacate the judgment of the CCA.

Id., slip op. at 5,

CAAF reasoned, “Once recused, a military judge should not play any procedural or substantive role with regard to the matter about which he is recused.” Id., slip op. at 6. Quoting its decision from Walker v. United States, 60 M.J. 354, 358 (C.A.A.F 2004), CAAF stated, “When a judge is recused, the judge should not take action to influence the appointment of his or her replacement.” Roach, slip op. at 6.

Finding error, CAAF tested for prejudice, which it found.  Id., slip op. at 8.  CAAF noted that one factor the Supreme Court evaluates in determining whether to grant relief in such situations is ”the risk of undermining the public’s confidence in the judicial process.”  Id. (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988)).  This portion of the analysis concluded:

The appearance of impartiality may be especially important in the military justice context. From an outsider’s perspective, it might well appear that at a court-martial and at the CCA, the critical players are invariably uniformed officers, usually if not always from the same service, and in many cases drawn from what are relatively small communities of military judge advocates. In this context, it is all the more important for participants to engage in their assigned duties without blurring legal and ethical lines; however well intentioned.

Id., slip op. at 9-10.

CAAF then proceeded to address the other three granted issues in the case.  First, it addressed AFCCA’s holding that it was limited to a comparison of the adjudged, rather than approved, sentences in conducting a sentence disparity analysis.  CAAF wrote: 

“The Courts of Criminal Appeals are required to engage in sentence comparison only ‘in those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.’” United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)).  Adjudged sentences are used because there are several intervening and independent factors between trial and appeal – including discretionary grants of clemency and limits from pretrial agreements – that might properly create the disparity in what are otherwise closely related cases.  In contrast, when the CCA is exercising its power over sentence appropriateness generally, it may consider both adjudged and approved sentences.

Id., slip op. at 10.  If I construe this correctly, CAAF is saying that a sentence disparity analysis must compare the adjudged sentences but that a Court of Criminal Appeals is free to consider disparity in approved sentences if it wishes to.

CAAF disposed of an appellate discovery issue by determining that it’s moot, finding that the documents the appellant sought won’t be relevant to the issue that remains under litigation upon remand. 

Finally, CAAF noted the possibility that ”a showing of ‘malicious delay’ on the part of an appellate judge might” influence a post-trial delay analysis, but declined to rule on that issue, finding that no such malicious delay occurred in this case.

Roach now returns to AFCCA for a third Article 66(c) review.

Judge Baker writes for a unanimous court.  Here’s the bottom line:

The granted issue tests the continuing vitality, of the so-called “closely related offense” doctrine. In light of the abiding principle of fair notice to an accused, we hold that this doctrine, as currently relied upon by appellate courts in upholding guilty pleas in the military justice system, is no longer viable.

CAAF avoids the entire constitutional issue and affirms dismissal of the charge. While the government contended at oral argument that the new OPNAVINST 5350.4D would moot the vagueness issue, I don’t know that it does anything for the other issues going forward.  Here is the relevant language from OPNAVINST 5350.4D, now in paragraph 8.r.:

Members arrested for alcohol-related offense by civil authority (i.e., DUI/DWI, public intoxication, disorderly conduct), shall promptly notify their commanding officer. Failure to do so constitutes an offense punishable under reference (b), article 92.

We’d have to see another round of these appeals, even though this case seems to be resolved, should commanders try to use the revised order as a basis for prosecution–unless OPNAVINST 5350.4D is revised to include the “when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation” language from the Navy Regs. However, adding that language virtually defeats the purpose of the self reporting requirement, so I don’t see a big future for this provision. As for revising the Navy Regs to remove the requirement, well that would directly raise the constitutional issue CAAF endeavored so carefully to avoid.

Article 1137 of the Navy Regs provides:  “Persons in the naval service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice which come under their observation, except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.”

NMCCA discussed the conflict between the Navy Regs and OPNAVINST 5350.4C:

This court has previously held that the reporting requirement of Article 1137 [of the United States Navy Regulations] is “valid and permissible,” basing that conclusion on the fact that it “eliminates a reporting requirement in instances where a person is already criminally involved in offenses he would otherwise be required to report.”  United States v. Bland, 39M.J. 921, 923 (N.M.C.M.R. 1994).

Id. at 584-85.

CAAF noted that NMCCA “described Article 1137 as ’superior competent authority’ over the Instruction, and further described the reporting requirement in the Instruction as ‘inconsistent’ with the exclusion provided in higher authority, the United States Navy Regulations.” CAAF agreed, noting:

The lower court’s description of Article 1137 as “superior competent authority” is consistent with Article 0103 of the United States Navy Regulations, which states that the United States Navy Regulations serve as “the principal regulatory document of the Department of the Navy,” and specifically states that “[o]ther directives issued within the Department of the Navy shall not conflict with, alter or amend any provision of Navy Regulations.”

CAAF held:

The self-reporting requirement in the Instruction did not provide Appellee with the rights afforded by a superior competent authority, Article 1137. As such, the Instruction did not provide a legal basis for finding Appellee derelict in the performance of a required duty, and the military judge did not err in dismissing the charge.

The opinion declined to exempt combat zone living quarters from any Fourth Amendment protection:

[T]he granted issues concern the unique powers of search and seizure granted to military commanders under the application of the Fourth Amendment to members of the armed forces.  These rules apply in domestic and deployed locations.  Although the application of the rules and the exceptions therein depend upon the context, there is no general exception for locations or living quarters in a combat zone.

Huntzinger, slip op. at 8-9 (internal citation omitted).  In affirming, CAAF expressly declined to rely on the military judge’s alternate ruling “that Appellant had no reasonable expectation of privacy in his living quarters.”  Id., slip op. at 9.  Under the facts of this case, CAAF held that the military judge appropriately concluded that the commanding officer “had a substantial basis for making a probable cause determination to authorize the search.”  Id., slip op. at 15.