CAAF decided United States v. Caldwell, No. 12-353, 72 M.J. 137 (CAAFlog case page) (link to slip op.), on April 29, 2013, reversing the NMCCA and finding a substantial basis in law and fact for questioning the Appellant’s plea of guilty to wrongful self-injury without intent to avoid service, in violation of Article 134, UCMJ. CAAF remanded the case to the CCA for further action.
Chief Judge Baker writes for the court, joined by Judge Erdmann and Senior Judge Cox. Judge Ryan dissents, joined by Judge Stucky.
Private Caldwell was convicted pursuant to his pleas, by a special court-martial composed of a military judge alone, of orders violations, larceny, and wrongful self-injury, in violation of Articles 92, 121, and 134, UCMJ, and contrary to his pleas of a separate order violation for wrongfully possession of “spice.” He was sentenced to confinement for 180 days and a bad-conduct discharge. It is the conviction of wrongful self-injury that is the important part of this case:
The appellant was alone in his barracks room, located in Camp Schwab, Okinawa, when he intentionally cut open his wrists with a razor blade, leaving a trail of blood on the barracks floor. At the time of his self-injury, the appellant was in a highly distraught state having just learned that he was being ordered back into pretrial confinement. Gunnery Sergeant (GySgt) C, one of the staff noncommissioned officers in the appellant’s unit, informed the appellant he was going back to the brig and allowed the appellant the privacy to call his parents from his barracks room before processing the appellant for confinement. Moments later, GySgt C returned to the room and discovered the appellant in his injured state. GySgt C administered immediate first aid by wrapping socks around the appellant’s wounds and then called for the assistance of corpsmen, who responded with their medical kits. After the appellant received acute care for his self-inflicted injuries, he was kept for a day in the base hospital’s psychiatric ward for observation before being placed into pretrial confinement.
Caldwell, No. 12-0353/MC, Slip op. at 3-4 (quoting United States v. Caldwell, 70 M.J. 630, 633 (N-M.Ct.Crim.App. 2011)) (citations to record omitted). The NMCCA considered this case twice, once in a three-judge panel and then en banc. In the first review, the panel set-aside the findings of guilty of larceny and self-injury, but affirmed the sentence. The CCA then reviewed the case en banc, and affirmed all of the trial findings and the sentence in a published opinion that included an analysis rejecting a general prohibition against “criminal prosecutions of genuine suicide attempts,” and concluded that “if a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.” Caldwell, 70 M.J. at 633 (N-M.Ct.Crim.App. 2011).
Then CAAF granted review of a single issue:
Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.
However, CAAF doesn’t answer this question, but instead finds that:
Appellant’s plea does not establish that his conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, and thus does not satisfy the elements of the offense. Because we find Appellant’s plea improvident, we need not address the more general and specified question as to whether and when a bona fide suicide attempt would satisfy the elements of an Article 134, UCMJ, offense.
Caldwell, No. 12-0353/MC, Slip op. at 3.