CAAFlog » Court-Martial News

In this post I noted a May 12, 2017, news report about the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Mike posted a follow-up here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, and the NMCCA affirmed in an opinion available here. CAAF summarily affirmed on April 27, 2017.

After CAAF acted, the Admiral signed an affidavit alleging that he wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Lorge’s career.

Yesterday – in an order available here – CAAF vacated its decision and ordered a factfinding hearing:

That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue:

WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY.

In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied.

The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).

One noteworthy part of CAAF’s order is that it does not permit disapproval of the conviction now if the DuBay were deemed impracticable. Absent such authorization, the conviction will stand unless CAAF finds a reason to reverse it. And the Admiral will testify if called (or face potentially-severe consequences), as he is still subject to the UCMJ.

Here is a copy of a letter dated April 26, 2017, in which the Commanding Officer, Navy and Marine Corps Public Health Center, reported three false positive results for methamphetamine at the Navy Drug Screening Laboratory, Great Lakes (NDSL-GL):

On 13 April 2017. NDSL-GL discovered a specimen was incorrectly reported positive for methamphetamine on 11 April 2017. During confirmatory testing it was determined that the false positive specimen was co-processed with a batch rejected due to cross-contamination generated from a specimen that contained a very high methamphetamine concentration. As a result. a retest was conducted that revealed no evidence of methamphetamine in the service member’s urine. The positive report was withdrawn and the submitting command notified of the error.

Sadly, this wasn’t an isolated problem. An investigation revealed:

two additional contaminated specimens were identified: one was not reported as positive due to a subsequent negative intermediate screening result, and the second was reported on 7 June 2016 for an Army Reserve member. The reported result was discovered on 22 April 2017. The positive report was withdrawn and the submitting command and the Army Drug Testing Program Office were notified of the false positive report. The Service Member had not yet been separated.

Here is Navy Times coverage of the affidavit submitted by retired Rear Admiral  Patrick J. Lorg in the sexual assault case of Senior Chief Special Warfare Operator (SEAL) Keith Barry.  Here is Zach’s prior coverage from the Washington Times.  Here is a link to the NMCCA opinion in the case. 

In a story available here Rowan Scarborough reports for the Washington Times that:

Retired Rear Adm. Patrick J. Lorge charges in a May 5 signed affidavit that the then-judge advocate general of the Navy and her deputy tried to persuade him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Mr. Lorge’s career.

. . .

Mr. Lorge said he came to believe that there was insufficient evidence to convict and wanted to overturn the verdict. His staff judge advocate advisers tried to talk him out of it. Failing, they then brought in the Navy’s powerhouse admirals to talk him out of it.

Vice Adm. Nanette DeRenzi, then judge advocate general of the Navy, talked to him in his office.

. . .

He then spoke by telephone with Vice Adm. James Crawford III, then Adm. DeRenzi’s deputy and the current judge advocate general of the Navy.

. . .

“Upon my review of the record of trial from this case, I did not find that the government proved the allegation against Senior Chief Barry beyond a reasonable doubt,” Mr. Lorge wrote. “Absent the pressures described above, I would have disapproved the findings in this case.”

The case is that of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Admiral Lorge approved the findings and sentence, and the NMCCA affirmed in an opinion available here. The CCA’s opinion included this detail:

In relevant part, the convening authority stated:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause[.] The evidence presented at trial and the clemency submitted . . . was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence. I encourage the Appellate Court to reconcile the apparent divergent case law addressing the testimony that an accused may present during sentencing for the purpose of reconsideration under R.C.M. 924. Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartiality of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge pursuant to Article 66(c), UCMJ, thereby allowing the accused to retire in the rank that he last honorably served.

United States v. Barry, No. 201500064, slip op. at 6-7 n.14 (N.M. Ct. Crim. App. October 31, 2016) (marks in original) (link to slip op.).

CAAF issued this order on Friday:

No. 17-0307/AR. Robert B. Bergdahl v. Jeffrey R. Nance and United States. CCA 20170114. No. 17-0307/AR. Robert B. Bergdahl, Appellant v. Jeffrey R. Nance, Colonel, J.A. Military Judge, and United States, Appellees. CCA 20170114. On consideration of the writ-appeal petition and the motion of Former Federal Judges to file an amicus brief, it is ordered that said motion is hereby denied, and that said writ-appeal petition is hereby denied.

This was Bergdahl’s seventh writ petition, and it sought dismissal of his case because of things said during the presidential campaign (last discussed here).

Bergdahl’s prior trips to Judiciary Square were noted here (#6), here (#5), here (#4), here (#3), here (#2), and here (#1).

Here is the Fayetteville Observer’s coverage of today’s scheduled hearing on motions in the SGT Bowe Bergdahl case. In today’s motions “prosecutors in April asked for the declassification of seven documents they plan to use during the proceedings.” In case you don’t get out much, from the FayObs:

Bergdahl is charged with desertion and misbehavior before the enemy by endangering the safety of a command, unit or place. He could face life imprisonment if convicted of misbehavior before the enemy.

He walked off his remote post in Afghanistan in 2009 and was subsequently held by the Taliban for five years.

Bergdahl’s appeal remains pending at CAAF, Stars and Strupes coverage here.

Here is Navy Times coverage of LCDR Lin’s plea deal. In what was an espionage case — it now becomes something much less, per Navy Times:

The Navy has dropped espionage charges against Lt. Cmdr. Edward Lin, part of a plea bargain agreement with the government that will result in the accused spy pleading guilty to a slate of lesser charges. 

Lin, who initially faced more than 30 years in the brig for allegations of spying for Taiwan and other misconduct, will plead guilty to lesser charges of communicating defense information, as well as multiple counts of disobeying lawful orders for mishandling classified information, lying on his leave chits about his travel and not reporting foreign contacts. 

In an opinion piece published by the Alaska Dispatch News and available here, Professors Rachel VanLandingham and Joshua Kastenberg (both retired Air Force Lieutenant Colonels and former Air Force military judges) call for the complete dismissal of the charges against Sergeant Bergdahl (CAAFlog news page) because:

On the campaign trail, then-candidate Trump repeatedly, and publicly, condemned Bergdahl as a traitor, and variously called for his execution by firing squad and by being pushed out of an airplane. This was not a one-off event; candidate Trump made his conclusion that Bergdahl is a traitor and should be executed a campaign meme, returning over and over to the same rhetoric.

Trump has never disavowed these comments. While it is true he hasn’t repeated them in the few short months he’s been in office, that’s because he doesn’t have to -– he knows he has already sent a very loud, very clear and very powerful message to his military subordinates (many of whom voted for him) he wants Bergdahl convicted and given the harshest punishment possible.

They echo the oft-repeated claim of Bergdahl’s defense counsel that the President’s campaign-trail comments are unlawful command influence so severe that it can’t be remedied. That claim is the subject of a seventh petition for extraordinary relief currently pending before CAAF (noted here) (pleadings available here).

While Professors VanLandingham and Kastenberg argue that the continued prosecution of Bergdahl risks “the fairness, credibility and integrity of the military justice system,” I believe that the danger to military justice is in dismissal, not continued prosecution.

Dismissal would, as I explained here, result in Sergeant Bergdahl’s honorable discharge from the Army, and it would also guarantee him other benefits in connection with his alleged desertion (and subsequent capture by the Taliban); an offense that, as I explained here, it seems Bergdahl confessed to committing. Bergdahl also engaged in a dialogue with filmmaker Mark Boal that resulted in roughly 25 hours of tape, and Bergdahl allowed the Serial podcast to use those recordings (according to the Serial podcast; link to episode transcript). Those recordings contain more damaging admissions and other aggravating evidence (some discussion here), and their publication is likely far more damaging to Bergdahl than anything said on the campaign trail.

Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.

Professors VanLandingham and Kastenberg also lash out at their Army colleagues:

Bergdahl’s defense has already tried to get this case dismissed on these grounds. However, not surprisingly, the military judge and Army appellate court (also consisting of active-duty military members) have declined to cross their commander-in-chief in that manner.

I think this is a foul blow. There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence. VanLandingham and Kastenberg must have a remarkably dim view of the Army’s Judge Advocate General’s Corps.

The credibility of the military justice system is founded in its systemic ability to do justice, not in the result of one particular (and factually and emotionally thorny) case. If those championing dismissal of the charges against Bergdahl really believe that the trial military judge and the Army CCA are incapable of remedying unlawful command influence committed by a presidential candidate who subsequently gets elected, then the damage to the military justice system is already done.

There is significant evidence that Bergdahl committed multiple offenses in departing and staying away from his combat outpost, and many of his fellow soldiers suffered as a result. That Bergdahl spent five years in captivity is a mitigating factor for sure, but it’s one that must be considered in context with the other facts of the case.

The appropriate place for that to occur in the first instance is neither the court of public opinion nor the appellate courtroom; it’s a court-martial.

The Marine Corps Times reports here about North Carolina charges filed against a career Marine accused of:

posting one nude photo of the woman and six pictures of her wearing underwear on April 14, according to an arrest warrant, which does not identify the website where the pictures appeared.

According to the report, the accused is charged with “felony disclosure of private images,” which appears to be a violation of N.C. Gen. Stat. § 14-190.5A.(available here), which states:

(b) Offense. – A person is guilty of disclosure of private images if all of the following apply:

(1) The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2) The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3) The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4) The person discloses the image without the affirmative consent of the depicted person.

(5) The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.

The statute defines a reasonable expectation of privacy as:

When a depicted person has consented to the disclosure of an image within the context of a personal relationship and the depicted person reasonably believes that the disclosure will not go beyond that relationship.

§ 14-190.5A(a)(5).

The North Carolina statute seems to be perfectly adequate to criminalize the kind of bad acts at issue in the Marines United scandal, and the statute appears free of the flaws I identified in my analysis of the recently-promulgated Article 1168, U.S. Navy Regulations.

If Congress thinks there should be a similar statute of national applicability, perhaps it should enact one.

We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

Read more »

According to various news reports, Marine Major Mark Thompson (CAAFlog news page) received a sentence of confinement for 90 days and a dismissal after pleading guilty yesterday at a general court-martial to making false official statements and conduct unbecoming an officer and a gentleman.

This report published by military.com explains that:

Thompson’s sexual misconduct began in 2011, when he drank, played strip poker and had a threesome with one of the midshipmen and a fellow Marine officer.

He admitted to lying to officers at a 2014 board of inquiry in which he claimed his innocence and was allowed to stay in the Marine Corps. He also admitted to lying to a Washington Post reporter John Woodrow Cox about his involvement with the women.

Back in 2013, after a general court-martial found him guilty of the underlying sexual misconduct, Thompson was sentenced to confinement for two months and a fine of $60,000.

The report also notes that:

Under Thompson’s plea agreement, the court agreed to endorse his “request to retire,” a decision which will have to be reviewed by the secretary of the Navy, Greer [the military judge] said.

While it’s unclear what grade he could retired at, Greer said it could be O-2, “which I believe was the last grade served honorably.

10 U.S.C. § 1186(b) provides that because Thompson has 20 years of active service, such retirement must be approved. Had Thompson received a sentence of at least six months, however, and actually served six months, he could have been dropped from the rolls under 10 U.S.C. § 1161 and 1167.

Thompson’s retirement will, as noted by the military judge, involve a determination of the highest grade in which he served satisfactorily, pursuant to 10 U.S.C. § 1370.

If transferred to the retired list Thompson will be subject to the UCMJ for the rest of his life. See United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

An alert reader drew our attention to this docket page where the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016, appears to be scheduled for disposition by guilty plea on Thursday.

CAAF granted review in three cases last week. All are from the Army:

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

Briefs will be filed under Rule 25.

The CCA’s opinion in Short is available here.

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER DILATORY POST-TRIAL PROCESSING VIOLATED APPELLANT’S DUE PROCESS RIGHTS AND WARRANTS RELIEF WHEN 782 DAYS ELAPSED BETWEEN DOCKETING AT THE ARMY COURT AND OPINION.

Briefs will be filed under Rule 25.

The CCA’s opinion in Gonzalez-Gomez is available here.

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

Briefs will be filed under Rule 25.

The CCA’s opinion in Jerkins is available here.

CAAF also docketed a petition for a writ of prohibition in United States v. Katso (CAAFlog case page):

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division. CCA 38005. Notice is hereby given that a petition for extraordinary relief in the nature of a petition for writ of prohibition was filed under Rule 27(a) on this date.

Finally, CAAF docketed a writ petition in Bergdahl. As the seventh such petition by an increasingly desperate Bergdahl (whose trial is expected to occur this summer), its filing is just barely noteworthy.

Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

Airman 1st Class Charles Amos Wilson III – whose case we last discussed here – was found guilty on Monday of the premeditated murder of his fiancee and their unborn child in 2013. The case was referred capital.

News reports here (Air Force Times), here (AP), and here (local).