Audio of the recent oral arguments before the Air Force CCA is available on our oral argument audio podcast at the following links:

United States v. Owens, No. 39457: Oral argument audio.

United States v. Scilluffo, No. 39539: Oral argument audio.

This week at SCOTUS: As noted here, Briggs filed his brief in opposition to the Solicitor General’s petition for cert.. In other news, the Court requested a response from the Solicitor General to the cert. petition in Richards (noted here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

SYMPOSIUM: LEGAL ETHICS IN MILITARY JUSTICE — CALL FOR PAPERS

The Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University is sponsoring a Symposium issue of the Hofstra Law Review relating to legal ethics in military justice, with an intended publication date of Summer 2020. The Symposium will be dedicated to exploring the unique professional responsibility issues faced by attorneys and judges working in the military criminal law system.

While the majority of the articles in the Symposium will be by invitation, one or two articles will be selected through an open submission process. If you are interested in having a piece published, please submit a draft of 8,000 words or less, in law review format, to the following email address by December 31, 2019: Brenner.M.Fissell@Hofstra.edu . All other inquiries may be directed to the same email address.

Acceptable topics include:

· Competence

· Conflicts of Interest

· Command Influence

· Attorney-Client Confidentiality

· Judicial Ethics

Co-Conveners:

Eric Freedman
Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Maurice A. Deane School of Law at Hofstra University

Ellen Yaroshefsky
Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics
Maurice A. Deane School of Law at Hofstra University

Brenner Fissell
Associate Professor of Law
Maurice A. Deane School of Law at Hofstra University

Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. Put differently, if a witness testifies about something in court, the rule allows a prior (out-of-court) statement by that same witness to be admitted to prove the thing asserted.

The rule has long allowed a prior statement to be admitted as non-hearsay when the prior statement predated an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. For example, just a few weeks ago in United States v. Frost, 79 M.J. __ (C.A.AF. Jul. 30, 2019) (CAAFlog case page), CAAF addressed the admission of a prior statement by an alleged child victim of rape. The statement was made to a psychotherapist, but a majority of CAAF found that the defense had alleged that the child was improperly influenced by her mother before the child talked to the psychotherapist. Accordingly, the statement was wrongly admitted.

But the federal rule was amended in 2014 to add a new sub-section: 801(d)(1)(B)(ii). The new subsection makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). Specifically, the new subsection states that a prior consistent statement is not hearsay when it is offered:

to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness; the Advisory Committee note on the amendment explains that:

The amendment does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

The amendment was incorporated into the MCM in 2016 (noted here).

The Army CCA addressed the change in a recent published decision in United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). Writing for a unanimous three-judge panel of the CCA, Judge Wolfe explained that the requirement that the prior statement be admitted to rehabilitate the declarant’s credibility is an important one:

Part (ii) requires rehabilitation of the credibility of a witness.

“Mere repeated telling of the same story is not relevant to whether that story, when told at trial, is true.” McCaskey, 30 M.J. at 192. A prior statement admitted under Mil R. Evid. 801(d)(1)(B)(ii) must rehabilitate the credibility of the witness in order to be admissible under the rule. The fact that a statement was repeated in the past, without more, is not very probative in rehabilitating the credibility of the witness’ in-court testimony.

In general, to be rehabilitative, a prior consistent statement must address the manner in which the witness’ credibility was attacked. In Pierre, the witness was impeached for omitting key facts in his interview notes. The implication was that the witness had either made up the key facts after the interview or had an inaccurate memory about what was said in the interview. 781 F.2d at 334. A formal report that contained the key facts, created shortly after the interview, tended to rebut both implications, and therefore rehabilitated the witness’ credibility.

. . .

In other words, a prior consistent statement admitted under Part (ii) must be probative of some fact at issue. And repetition alone will not meet the offering party’s burden. McCaskey, 30 M.J. at 192; see also Adams, 63 M.J. at 697 n.5.

78 M.J. at 787. Then, applying that law to a prior statement (a videotaped interview with military investigators) by the alleged victim in Finch, Judge Wolfe explained that the statement was admissible under the new Mil. R. Evid. 801(d)(1)(B)(ii) because the defense had implied that the alleged victim’s in-court testimony was inconsistent with her prior statements to the investigators, and that implication “was factually rebutted by watching the interview.” 78 M.J. at 791.

Last week CAAF granted review:

No. 19-0298/AR. U.S. v. David M. Finch. CCA 20170501. 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 granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING OVER DEFENSE OBJECTION THE VIDEO-RECORDED INTERVIEW OF AH BY CID BECAUSE IT WAS NOT A PRIOR CONSISTENT STATEMENT UNDER MIL.R.EVID. 801(d)(1)(B).

Briefs will be filed under Rule 25.

Update: The NMCCA seems to have reached the same conclusion about the meaning of Mil. R. Evid. 801(d)(1)(B)(ii) in United States v. Norwood, __ M.J. __ (N-M. Ct. Crim. App. Aug. 9, 2019) (link to slip op.).

Last month the Solicitor General filed a petition for certiorari in United States v. Briggs, No. 19-108. I discussed the petition in this post.

Yesterday Briggs responded, opposing the petition. The response is available here.

It begins:

The Petition relies upon a view of this Court’s jurisdiction over the Court of Appeals for the Armed Forces (CAAF) that the government has consistently rejected. On the merits, its principal objection is that CAAF misinterpreted the Uniform Code of Military Justice (UCMJ). As the government concedes, though, CAAF’s putative errors are limited not only to courts-martial, but to “a closed set of crimes committed before 2006.” Pet. 23. To explain why this case is nevertheless worthy of certiorari, the Petition invents nonexistent tension between CAAF’s rulings and those of the civilian courts, and it argues that the Eighth Amendment does not forbid imposition of the death penalty for rape in the military even though that important issue was not addressed by CAAF below; is not relevant to any forward-looking cases; and is in any event mooted by the UCMJ. Finally, and most importantly, the two CAAF rulings at issue were both correct. The Petition should therefore be denied.

This week at SCOTUS: As noted here, the Solicitor General filed a petition for certiorari in United States v. Collins, No. 19-184, on August 9. In other news, the petitions in Richards and Livingstone are scheduled for conference on October 1. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 19, 2019.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Scilluffo, No. 39539, on Tuesday, August 13, 2019, at 10 a.m. No additional case information is available on the CCA’s website.

Disclosure: I represent the appellant as his civilian appellate defense counsel.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

In a petition filed yesterday and available here, the Solicitor General seeks Supreme Court review of CAAF’s summary affirmation of the Air For CCA’s decision in United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page).

The petition in Collins presents the exact same question as the petition filed by the Solicitor General in Briggs (discussed here):

Whether the Court of Appeals for the Armed Forces erred in concluding—contrary to its own longstanding precedent—that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

The petition asks the Court to grant certiorari in both cases and consolidate them or briefing, for to hold the petition in Collins pending resolution of Briggs.

Update: The petition also includes CAAF’s summary disposition in United States v. Daniels, No. 19-0345/AF (noted here)

On Tuesday, in this post, I analyzed the NMCCA’s astonishing opinion in United States v. Begani, __ M.J. __, No. 201800082 (N-M. Ct. Crim. App. Jul 31, 2019), in which a three-judge panel of the court held that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because the UCMJ does not also apply court-martial jurisdiction to retired reservists.

The most important holding in Begani is about three classes of retirees in the Navy and Marine Corps: (1) regular enlisted members in the Fleet Reserve receiving retainer pay (like Begani), (2) regular members on the retired list receiving retired pay, and (3) people receiving reserve (also known as non-regular) retired pay (the CCA did not address disability retirees).

The CCA held that people in those three categories “are similarly situated for purposes of equal protection analysis.” Slip op. at 8. That holding made possible the subsequent equal protection analysis (that found Article 2 unconstitutional). Without that holding, the rest of the opinion collapses.

The holding is based on similarities between the three categories of retirees:

The members of all three groups are in an inactive status and no longer perform any uniformed military duties. They are all subject to recall to active duty. They are ineligible for further promotion. They are entitled to retired pay at some point in their retired years. . . . For all of them, once they are entitled to retired pay, the pay continues for the duration of their lives and increases according to a cost of living formula. Their retired pay is not contingent on their continued military usefulness. Their actual ability to contribute to the accomplishment of a military mission is completely irrelevant.

Slip op. at 6.

The CCA analyzed “each group’s current degree of connectedness to the armed forces—not to past connections.” Slip op. at 6 (emphases in original). In analyzing how each group is currently connected to the armed forces, the CCA considered “the official Department of Defense (DoD) policy on the utilization of retirees.” Slip op. at 6. That policy includes an instruction that “makes no distinction between retired members of the regular and reserve components,” and that “does not mention active or reserve component status as a criterion for mobilization.” Slip op. at 6-7 (quoting DODI 1352.01 in footnotes). The CCA also considered the fact that “retired members of both the active and reserve components are similarly—though not identically—subject to involuntary recall to active duty.” Slip op. at 7. Because all three categories of retirees are still members of the armed forces, and because the DoD treats all three categories roughly equally, the CCA held that they are similarly situated.

That holding is fundamentally flawed because (unlike regular retirees) reserve retirees need not have any current connection to the service to receive their reserve retired pay. Reserve retired service and reserve retired pay are mutually exclusive. Regular retired pay, however, requires regular retired service. Put differently, while regular retirees must actually be in the military to receive regular retired pay, reserve retirees need not be in the military to receive their reserve retired pay (nor does continued service in the retired reserve create an entitlement to reserve retired pay). That’s an enormous difference in situation.

The bottom line is found in the wording of the statute that creates reserve retired pay, 10 U.S.C. § 12731 (“person”; “entitled”; and no mention of the retired reserve), and in paragraph 060401, Volume 7B, DoD 7000.14-R (the DoD FMR), which states:

Retired pay benefits authorized for non-regular members of the uniformed services in 10 U.S.C., Chapter 1223 are viewed as a pension and entitlement to retired pay under 10 U.S.C. § 12731 is not dependent on the continuation of military status.

(emphasis added). In other words, reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees.

Analysis follows after the jump.

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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 in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months after his recovery, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and Bergdahl made it clear that he believed that a dishonorable discharge was the appropriate punishment. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The Army CCA affirmed the findings and sentence last month, in a published decision discussed here.

On Monday CAAF docketed a petition for grant of review inre Bergdahl’s case. The supplement to the petition is available here.

The supplement raises four issues:

I. WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

II. WHETHER THE CHARGES WERE UNREASONABLY MULTIPLIED.

III. WHETHER THE MILITARY JUDGE MISAPPLIED THE SPECIFIC INTENT ELEMENT OF SHORT DESERTION.

IV. WHETHER THE MISBEHAVIOR BEFORE THE ENEMY SPECIFICATION STATES AN OFFENSE.

One particularly interesting part of the supplement is this passage, in which Bergdahl’s decision to abandon his post and assigned duties is characterized as bravery:

Charging both desertion and misbehavior was also an exaggeration. Short desertion involves a conscious purpose to shirk or avoid one’s duty. SGT Bergdahl’s absence from guard duty was a collateral consequence of his conscious purpose to travel to another base within the command. Misbehavior charges quintessentially involve cowardice, whereas this case involves a form of (misplaced) bravery.

Supp. at 22 (emphasis omitted).

Last week I noted that the Chief of Naval Operations ordered a review of the leadership and performance of the Navy JAG Corps.

USNI News provides details here, including a copy of the CNO’s memo ordering the review (reproduced after the jump).

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Court-martial jurisdiction for retired members is a big topic in military justice. For instance, it was the #1 Military Justice Story of 2017 and the #6 Military Justice Story of 2018.

Now, with an astonishing opinion in United States v. Begani, __ M.J. __, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals holds that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because it does not also apply court-martial jurisdiction to retired reservists.

Chief Judge Crisfield writes for the court, joined by Senior Judges Fulton and Hitesman.

In June 2017, Chief Petty Officer Begani, U.S. Navy, completed 24 years of active duty service and transferred to the Fleet Reserve. The Fleet Reserve (and the associated Fleet Marine Corps Reserve) is not regular retirement, but rather is an intermediate status for enlisted members in the Department of the Navy who have completed at least 20 but less than 30 years of service (because enlisted members are not actually entitled to retirement until they complete 30 years of service; compare, for example, 10 U.S.C. § 7314 (may be retired upon request after 20 years) with 10 U.S.C. § 7317 (shall be retired upon request after 30 years)). While in the Fleet Reserve, Begani received retainer pay and was subject to court-martial under Article 2(a)(6).

36 days after his transfer to the Fleet Reserve, Begani was apprehended by Naval Criminal Investigative Service (NCIS) agents when he went to an on-base residence on Marine Corps Air Station Iwakuni, Japan (Begani’s duty station at the time of his transfer). Begani was there for a sexual encounter with someone he believed was a 15-year-old female, but was actually an undercover NCIS agent. As a result, Begani eventually pleaded guilty at a general court-martial to one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Articles 80 and 120b. The approved sentence was confinement for 18 months and a bad-conduct discharge.

Begani did not challenge jurisdiction at trial, but he did challenge it on appeal, arguing “that the UCMJ’s jurisdictional scheme, whereby he, as a retired regular component member, is subject to the UCMJ, while retired Navy Reserve members are not, violates the Fifth Amendment Due Process Clause’s guarantee of equal protection of the laws.” Slip op. at 3. Begani’s argument turned on the claim that members of the Fleet Reserve (and Fleet Marine Corps Reserve) receiving retainer pay (like him), regular retirees, and reserve retirees, are all similarly situated.

The CCA agrees that those three disparate categories are indeed similarly situated:

There is little case law to guide our determination of whether these two groups of retirees are “similarly situated” for equal protection purposes. We nonetheless feel confident determining that members of the Fleet Reserve, regular component retirees, and reserve component retirees are similarly situated because there is no meaningful distinction, legally or factually, between the groups that is relevant to good order and discipline in the armed forces.

Slip op. 5. It then finds that Article 2 – which Congress recently amended

is not narrowly tailored to the achievement of a compelling government interest. Instead, it appears that Article 2’s retiree jurisdiction structure is an anachronistic vestige of Congress’ effort to create a uniform code of military justice for military services that traditionally had different administrative needs. Article 2’s retiree jurisdiction rules reflect an administrative compromise that has outlived its necessity and is not tailored to current governmental interests.

It is clear to us that Congress could lawfully subject all retirees of the armed forces to UCMJ jurisdiction. Conversely, it could subject no retirees of the armed forces to jurisdiction. It could also narrowly tailor retiree jurisdiction in such a way to satisfy the compelling interest in maintaining good order and discipline in the armed forces. Article 2 as structured, however, is not narrowly tailored to that interest. Accordingly, we find that the UCMJ’s jurisdictional structure for retirees violates the right of equal protection imputed to the Fifth Amendment.

Slip op. at 16 (emphases omitted).

The decision is a radical departure from everyone’s jurisprudence involving retiree jurisdiction, least of all the NMCCA’s own jurisprudence. For instance, just two years ago, in United States v. Dinger, 76 M.J. 552, 557 (N-M Ct. Crim. App. 2017), aff’d, 77 M.J. 447 (C.A.A.F. 2018), cert. denied, 139 S. Ct. 492 (2018) (CAAFlog case page), the NMCCA rejected a similar challenge because it was “firmly convinced that those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial.” Shortly after it decided Dinger, the NMCCA summarily rejected a similar challenge in United States v. Larrabee, No. 201700075, 2017 CCA LEXIS 723 (N-M Ct. Crim. App. Nov. 28, 2017) (unpub.) (link to slip op.), aff’d, 78 M.J. 107 (C.A.A.F. 2018) (sum. disp.), cert. denied, 139 S. Ct. 1164 (2019) (CAAFlog news page).

The decision also suffers from some serious flaws.

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In Rehaif v. United States, 139 S. Ct. 2191 (2019) (SCOTUSblog case page), the Supreme Court held that the word knowingly in 1018 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes. Writing for a 7-2 majority of the Court, Justice Breyer explained that:

As a matter of ordinary English grammar, we normally read the statutory term knowingly as applying to all the subsequently listed elements of the crime.

139 S. Ct. at 2196 (marks and citations omitted). In a pointed dissent, Justice Alito (joined by Justice Thomas) excoriated the majority for “casually overturn[ing] the long-established interpretation of an important criminal statute.” 139 S. Ct. at 2201.

Last week CAAF cited Rehaif to grant further review in this Army case:

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant’s petition for reconsideration of this Court’s order denying the petition for grant of review __ M.J. __ (Daily Journal June 18, 2019), and in light of United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), it is ordered that the petition for reconsideration is granted, that the order denying the petition for grant of review is vacated, and the petition for grant of review is granted on the following issue:

WHETHER THE MENS REA OF “KNOWINGLY” APPLIES TO THE CONSENT ELEMENT OF ARTICLE 120c(a)(2), UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. § 920c(a)(2) (2016).

Briefs will be filed under Rule 25.

The reference to denial of the petition for review is wrong. CAAF granted review in this case in April as a trailer to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page). CAAF then summarily affirmed in light of McDonald in June, declaring that “military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held” (noted here).

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 19, 2019.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Owens, No. 39457, on Thursday, August 8, 2019, at the University of California, Hastings College of Law, Moot Courtroom (Room 423), 198 McAllister Street, San Francisco, CA 94102. No additional case information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

The Silver CAAF Tongue award, while lacking physical manifestation, is a life-changing honor bestowed upon the attorney who argued the most cases at CAAF during the term. Past winners can be seen here.

Most years there is a single winner. This year there are five winners, each of whom argued three cases at CAAF:

  • Michael T. Bunnell of the Air Force Appellate Government Division,
  • Sandra Ahinga of the Army Appellate Government Division,
  • Natanyah Ganz and of the Army Appellate Government Division,
  • Steven Dray of the Army Appellate Defense Division, and
  • Robert Feldmeier, Esq.

Major Bunnell’s inclusion marks the seventh year in a row that an Air Force attorney wins the award.

Congratulations to all.

CAAF decided the Army case of United States v. Navarette, 79 M.J. __, No. 19-0066/AR (CAAFlog case page) (link to slip op.), on August 1, 2019. Without explicitly holding that the Army CCA was wrong to deny the appellant’s request for an examination to determine his mental capacity to participate in the appellate process, a majority of CAAF remands the case to the Army court for further review of the request.

Judge Sparks writes for the court, joined by all but Chief Judge Stucky, who dissents.

Specialist (E-4) Navarette was convicted of a single specification of wrongful distribution of cocaine and sentenced to confinement for 90 days, reduction to E-1, total forfeitures, and a bad-conduct discharge. His defense at trial was that he was entrapped into selling the drugs to impress a pretty girl, and his mental health played a role in the defense (though he did not claim lack of mental responsibility). On appeal, Navarette’s military appellate defense counsel questioned Navarette’s mental capacity to participate in the appellate process and asked for an inquiry into Navarette’s mental health.

A three-judge panel of the Army CCA denied the request for three reasons: first, documents showed that the appellant responded well to mental health treatment; second, Navarette’s counsel had not actually asserted that he is unable to participate in the appeal; and third, Navarette had personally submitted matters to the CCA pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (holding that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous). CAAF then granted review of two issues:

I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).

II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Judge Sparks and the majority, however, “opt not to directly answer the granted issues,” slip op. at 2, because of “two concerns surrounding Appellant’s medical condition that we feel should be more thoroughly addressed to ensure a proper Article 66, UCMJ, review,” slip op. at 6. Chief Judge Stucky dissents, observing that:

the majority instead remands to the lower court without deciding that it abused its discretion and without telling it what standard it should apply. As the issue was granted, briefed, and argued, I see no reason not to provide that guidance, lest we need to return to this issue in this case again, further elongating these proceedings.

Diss. op. at 7.

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