CAAFlog » Court-Martial News

An Article 32 preliminary hearing was held over the weekend to consider allegations of rape of a child by retired Army Major General James J. Grazioplene. According to this associated press report:

The Washington Post obtained charging documents under the Freedom of Information Act that show Grazioplene is accused of committing rape on six occasions between 1983 and 1989 while stationed in the United States and Germany.

Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.

But the Grazioplene case raises a different issue: whether the prosecution is barred by the statute of limitations. Article 43 contains a broad, five-year statute of limitations, and the exception for child abuse offenses wasn’t added until 2003. In United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008), CAAF held that the change was prospective only:

Considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively to cases such as this, the general presumption against retrospective legislation in the absence of such an indication and the general presumption of liberal construction of criminal statutes of limitation in favor of repose, we decline to extend the reach of the 2003 amendment to Article 43, UCMJ, to cases which arose prior to the amendment of the statute.

Update / Correction: Except that in 1986 Congress amended Article 43 to eliminate any statute of limitations for “any offense punishable by death,” and rape was at the time a capital offense.

News reports about the Grazioplene case (including this military.com story and this Washington Post story) provide little additional detail about the facts of the case.

In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees that a report by the House Armed Services Committee found violated several laws. Ten months later, in March of 2015, now-Sergeant Bergdahl (who was promoted while in captivity as if he were a prisoner of war) was charged with desertion and misbehavior offenses, his case was referred for trial by general court-martial, and last week Bergdahl elected to be tried by a court-martial composed of a military judge alone.

As the case progressed some wondered why Bergdahl is being prosecuted after nearly five years of captivity in the hands of insurgents. The facts of his capture are relatively undisputed; in a moment of severe naivete (or maybe narcissism) Bergdahl walked away from his combat outpost and into the Afghan wilderness. The subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Nevertheless – and despite the recommendation of the Article 32 preliminary hearing officer that Bergdahl face a lesser, special court-martial not authorized to adjudge a punitive discharge – Bergdahl will soon be tried by a general court-martial where he faces the possibility of a dishonorable discharge and confinement for as long as life without the possibility of parole.

Bergdahl’s decision to be tried by a military judge alone rather than a panel of members came after a year of litigation about comments made by President Trump during the campaign (as well as comments by others) that Bergdahl’s defense counsel claimed make it impossible for Bergdahl to receive a fair trial. A judge-alone trial likely waives that issue, and almost certainly cures it. It’s a surprising gift to the prosecution in a case with seemingly-overwhelming evidence, including that Bergdahl probably confessed to the desertion offense, and his post-recovery statements to film producer Mark Boal are probably a confession to the misbehavior offense as well.

One possible rationale for the decision to elect trial by a military judge alone is that a military judge will give Bergdahl credit for his time in captivity, at least by considering that time as a significant mitigating factor. This, of course, assumes that Bergdahl is guilty. But assuming that he is guilty of the desertion and misbehavior (or either) offenses that led to his capture, it’s not at all clear that his captivity mitigates his misconduct. Rather, I think there’s a stronger argument that Bergdahl’s captivity is a matter in aggravation.

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After so many motions, writ-petitions, and breathless claims that Army Sergeant Bergdahl can’t get a fair trial by court-martial on the charges of desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2) and misbehavior before the enemy in violation of Article 99 for leaving his combat outpost in Patika Province, Afghanistan (leading to his capture by the Taliban and captivity for nearly five years), Bergdahl has elected to be tried by a court-martial composed of a military judge alone:
(source).

Here is Washington Post coverage (alternate link) of an $8.5 million jury award in a defamation case brought by retired Army Col. David Riggins against Susan Shannon who, in 2013, alleged that Riggins raped her in 1986 when they were both cadets at the United States Military Academy (West Point). The allegation was investigated by Army CID, and Riggins was subsequently removed from the promotion list for brigadier general.

After Shannon made her claim, Riggins told investigators that he had a consensual sexual relationship with her while at the Academy but he denied assaulting her:

The CID also contacted Riggins. A report in court records shows that Riggins described a consensual sexual encounter with Shannon after a Halloween party in 1983, and a short relationship with an amicable breakup. Riggins said he had no significant contact with her in 1986. In Washington state, Shannon told investigators there was no sex or relationship in 1983, only a rape after Riggins saw her staggering out of a pedestrian tunnel on campus in the spring of 1986. She claimed Riggins offered her a ride in his car, and that she had no memory of the actual assault, although she said Riggins “smugly admitted he did indeed rape” Shannon, according to a Fairfax court filing.

Riggins sued Shannon in Virginia, asserting:

that every aspect of her rape claim on the West Point campus was “provably false,” and that she wrote two blog posts and a Facebook post “to intentionally derail [his] promotion” to brigadier general. During a six-day trial that ended Aug. 1, a jury in Fairfax County, Va., heard from both Riggins and Shannon at length. And after 2½ hours of deliberation, they sided emphatically with Riggins, awarding him $8.4 million in damages, an extraordinary amount for a defamation case between two private citizens. The jury ordered Shannon to pay $3.4 million in compensatory damages for injury to his reputation and lost wages, and $5 million in punitive damages, “to make sure nothing like this will ever happen again,” according to one of the jurors.

A juror told the Post:

“Honestly,” said juror Marshall Reinsdorf, “we thought who was telling the truth was too obvious to be discussing. We held a vote, and everybody believed the colonel. The only argument was how big the damages were going to be.” Of the four women and three men on the jury, two other jurors declined to comment, two jurors did not return messages and two could not be reached.

Army Staff Sergeant (SSG) Robert Bales pleaded guilty at a general court-martial in 2013 to the murder of 16 Afghan civilians in 2012. The case had been referred capital, and his plea avoided the possibility of the death sentence. Bales received the maximum possible sentence of life without the possibility of parole.

In 2015, GQ magazine published this story about Bales based largely on post-conviction interviews of Bales that, according to the story, Bales hopes “will humanize him, and he hopes that one day in the hard-to-imagine future, as the wars fade from memory, someone will deem his sentence to be excessive, take mercy on him, and grant him a measure of clemency.”

The Army CCA will hear oral argument in Bales appeal tomorrow. Two issues are before the court:

I. [Whether Bales] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. [Whether] the military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

Both of these issues look to be wholly focused on Bales’ sentence, and neither appear to challenge his plea. The second issue probably involves the military judge’s erroneous disclosure of an unredacted copy of Bales’ R.C.M. 706 (sanity board) evaluation to the prosecution (noted here).

The first issue may also include a challenge to the safety of the widely-used anti-malaria drug mefloquine. According to this Seattle Times report published last week:

Defense attorneys are expected to argue that while on a 2003-2004 tour in Iraq, and possibly in Afghanistan in 2012, Bales took the antimalarial drug mefloquine, according to John Henry Browne, a Seattle attorney who has assisted in the soldier’s defense.

In July 2013, the FDA issued its strictest warning about mefloquine, noting the potential for long-term neurological damage and serious psychiatric side effects. The defense team did not raise Bales’ possible use of the drug during sentencing proceedings the next month.

Defense attorneys now hope the drug issue can persuade a three-judge panel to lessen his sentence.

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.

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.

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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, 76 M.J. 552, 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.