Opinion Analysis: CAAF finds no sua sponte duty to give an instruction on the impact of a punitive discharge on retirement benefits, in United States v. Easterly
CAAF decided the certified Air Force of United States v. Easterly, __ M.J. __, No. 19-0398/AF (CAAFlog case page) (link to slip op.), on February 4, 2020. Holding that a military judge has a duty to instruct members on the impact of a punitive discharge on retirement benefits only when the defense actually requests such an instruction, CAAF reverses the decision of the Air Force CCA holding that it was plain error for the military judge to not give such an instruction in this case where it was not requested.
Judge Ryan writes for a unanimous court.
Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a disability retirement. That fact was presented during the sentencing phase of the court-martial, but the defense did not request an instruction to the members that an adjudged punitive discharge would likely eliminate the possibility of that disability retirement. Considering that, two out of three judges of a panel of the Air Force CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.
The CCA’s decision relied, in part, on CAAF’s decision in United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001), which announced one rule and applied a second one. First, CAAF announced that “military judges in all cases tried after the date of this opinion [are required] to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.” 55 M.J. at 221. Then, CAAF explained that “because the defense did not request an instruction on the impact of a punitive discharge on temporary disability retirement, we will grant relief only if the military judge’s failure to instruct sua sponte was plain error.” 55 M.J. at 222. In Easterly the Air Force CCA applied that second rule and concluded that the military judge’s failure to instruct sua sponte – meaning without prompting or suggestion – was plain error.
The Judge Advocate General of the Air Force then certified one issue to CAAF:
Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.
In yesterday’s opinion CAAF holds that, as far as the trial is concerned, “there was no error here, let alone plain error.” Slip op. at 2. In so holding, the court roughly discards the second test from Boyd because “the [first] Boyd test, which requires a request, cannot be squared with a sua sponte duty for a military judge to give the instruction.” Slip op. at 7.
Judge Ryan’s analysis begins with the old (pre-2019) version of R.C.M. 1005(f), which stated:
Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members.
A footnote explains that despite the use of the word waiver in the rule, it was not a waiver rule. Rather, forfeiture applies because:
Despite the rule using the word “waiver,” this Court has interpreted the near identical language in R.C.M. 920(f) (findings instructions) that simultaneously discusses waiver and plain error as referring to forfeiture, not waiver. See, e.g., United States v. Davis, 76 M.J. 224, 227 n.1 (C.A.A.F. 2017); United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). We see no reason to interpret the provision for sentencing instructions any differently. We review forfeited issues for plain error. Davis, 76 M.J. at 227 n.1.
Slip op. at 4-5 n.3. The rule was changed in the 2019 edition of the Manual for Courts-Martial, eliminating the word waiver and explicitly stating that the failure to object “shall constitute forfeiture of the objection.”
Judge Ryan then turns to Boyd, noting the prospective rule announced in that case that military judges must “instruct on the impact of a punitive discharge on retirement benefits, if [(1)] there is an evidentiary predicate for the instruction and [(2)] a party requests it.” Slip op. at 5 (marks in original). A footnote adds that “this test applies to all forms of retirement benefits, including retirement for disability.” Slip op. at 5 n.4.
That rule, however, is not at issue in Easterly because there was no request for the instruction. Rather, it’s the other test from Boyd – the decision to “grant relief only if the military judge’s failure to instruct sua sponte was plain error,” 55 M.J. at 222 – that applies.
But CAAF doesn’t apply that test. Rather, it eliminates it. Judge Ryan writes:
At odds with the clear statement of the prospective rule, [the second test] appears to have been an unartfully crafted attempt to give Boyd himself the benefit of the rule with respect to a form of retirement benefits for which he did not request an instruction. That attempt, however, does not change the clear statement of the prospective rule, nor does it create a duty for a military judge to sua sponte instruct on the effect of a punitive discharge on retirement benefits.
Slip op. at 5-6. Put differently, notwithstanding the analysis in Boyd about “grant[ing] relief only if the military judge’s failure to instruct sua sponte was plain error,” 55 M.J. at 222, CAAF holds that there is no sua sponte duty to instruct.
Except for when there is such a duty, as a footnote explains:
We do not address situations where instructions might be needed to respond to a question from the members, see, e.g., Greaves, 46 M.J . at 134 (military judge erred in failing to correctly answer members’ questions about the effect of a bad-conduct discharge on retirement benefits), or to correct a misstatement of the law by counsel. Cf. United States v. Alameda, 57 M.J. 190, 199 (C.A.A.F. 2002) (holding the military judge erred in failing to provide curative instructions after misstatements by counsel).
Slip op. at 6 n.6.
• AFCCA opinion
• Blog post: CAAF grants review
• Appellant’s (Gov’t Div.) brief
• Appellee’s brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio (wma)(mp3)
• CAAF opinion
• Blog post: Opinion analysis