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, 79 M.J. 325, 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.