Opinion Analysis: A natural and probable consequence, and maybe something less, sustains a conviction of reckless endangerment in United States v. Herrmann, No. 16-0599/AR
CAAF decided the Army case of United States v. Herrmann, __ M.J. __, No. 16-0599/AR (CAAFlog case page) (link to slip op.) on Monday, June 19, 2017. Defining the term likely in the element of conduct likely to produce death or grievous bodily harm, CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes.
Judge Ohlson writes for a unanimous court.
Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.
CAAF then granted review of a single issue:
Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.
The convictions were based on the pencil packing of reserve parachutes, Judge Ohlson defines pencil packing as:
illicit conduct where a soldier responsible for packing or inspecting a parachute fails to do so, but then falsely indicates in writing that the proper packing and inspecting procedures were followed.
Slip op. at 2-3 n.2. The prosecution introduced testimony by Herrmann’s subordinates admitting to the pencil packing, and also presented evidence of various ways the parachutes could have failed. A conviction of reckless endangerment, however, requires “conduct . . . likely to produce death or grievous bodily harm to another person.” ¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s defense was that any possibility of such harm was less than likely, primarily because the parachutes were merely reserves.
But CAAF is unconvinced and affirms the conviction.