CAAFlog » Practicum

This IRS FAQ discusses the Protecting Americans from Tax Hikes Act of 2015 (PATH Act):

Congress added a new exclusion from income under section 139F of the Internal Revenue Code. Under this new exclusion, a wrongfully incarcerated individual does not include in income any civil damages, restitution, or other monetary award received that relates to his or her incarceration for the covered offense for which he or she was convicted (Wrongful Incarceration Exclusion).

A reversed court-martial conviction, resulting in back pay, likely qualifies for this exclusion. There is, however, a deadline. The above-linked FAQ explains:

Q6: What is the deadline for a wrongfully incarcerated individual to claim a refund of an overpayment of tax for an award included in income in a prior tax year that qualifies for the Wrongful Incarceration Exclusion?

A6: The wrongfully incarcerated individual must file the claim for refund within three years from the date the individual filed the income tax return that previously reported the award or two years from the date the individual paid the tax on the award, whichever is later.  However, Congress provided a special provision permitting wrongfully incarcerated individuals to file a refund claim even if the claim does not meet either the three-year or two-year deadline.  A wrongfully incarcerated individual who cannot meet the three-year or two-year deadline and who is relying on this special provision must file his or her claim for refund by Dec. 17, 2018

Jon Eldan from the non-profit organization After Innocence ( recently contacted me and offered to provide free accounting and legal assistance services to veterans to determine eligibility and claim a refund. A Huffington Post article about his work is available here. Jon’s email address is

This is not an endorsement of Mr. Eldan or the After Innocence project.

The military Benchbook is now available via a web app, at

To whoever is responsible for this, great job!

A reader forwarded me this Brady notice from the General Counsel of the Department of Defense, along with this Air Force Drug Testing Laboratory study and this Naval Drug Screening Laboratory study.

The bottom line is that the laboratories determined that under certain circumstances a leaking bottle in a box of urinalysis tests can contaminate other bottles in the same box, leading to false positive results.

At first glance, this might look like a serious problem for the armed forces drug screen program (that relies on urinalysis). According to this Military Times story, the DoD seems to be panicking. But a closer analysis shows that this is just the latest in a series of small developments that reveal the limitations of forensic evidence.

Other examples include false positives at drug screening labs (like the ones discussed here and here), and misconduct by lab employees (like former chemist Phillip Mills).

The two new studies from the Air Force and Naval laboratories may tend to reduce the weight of urinalysis evidence to prove illegal drug use, but they will have a very limited practical application.

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On Friday the Army CCA issued updated rules of practice and procedure (replacing the rules issued on 1 Nov 17).

They’re available here.

CAAF’s daily journal for Friday the 13th of April, 2018, has this entry:

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Appellee’s motion for leave to file a motion to clarify position in response to questions at oral argument is denied.

Prior coverage here.

Last week the Navy-Marine Corps CCA issued updated rules of practice and procedure.

A bookmarked PDF of the new rules is available here.

The update seems to be mostly housekeeping (adding reference to Article 6b, for example).

Congratulations to Dwight Sullivan (founder of this blog) and Eugene Fidell on publication of the 16th Edition of their Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces.

Yesterday, in this post, I noted CAAF’s dismissal of a petition for lack of jurisdiction. I speculated that the absence of jurisdiction was caused by the appellant and his counsel missing the petition deadline.

My speculation was wrong. The pleadings (discussed below) reveal that the deadline wasn’t missed. Rather, prior to petitioning CAAF, the appellant withdrew his appeal.

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The JSC has published a very useful set of PDF updates to the 2012 Manual for Courts-Martial. They are all available at the JSC’s site here, and are also listed and linked below:

  • Appendix 2 – UCMJ Updated as of FY15 NDAA. PDF
  • Part II – Rules for Courts-Martial Updated as of June 2015. PDF
  • Part III – Military Rules of Evidence Updated as of June 2015. PDF
  • Part IV – Art. 81 Updated as of June 2015. PDF
  • Part IV – Arts. 92/93 Updated as of June 2015. PDF
  • Part IV – Arts. 120-120c Updated as of June 2015. PDF
  • Part IV – Art. 131 Updated as of June 2015. PDF
  • Part IV – Art. 134 Obst. of Just. & Wrongful Interf. Updated as of June 2015. PDF

Some assembly required.

In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.

In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:

the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .

As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.

A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .

Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.

Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.

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During last month’s meeting of the JPP subcommittee, a panel of senior prosecutors gave comments about memos written by prosecutors and sent to convening authorities or their staff judge advocates to help gauge the viability of certain cases. Those memos were identified by a testifying Marine judge advocate as “prosecurorial merits memo[s],” (see transcript here) and I got the impression that every service produces some version of them.

Once transmitted to a convening authority or staff judge advocate, such memos are discoverable.

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In this post last month, I announced that I updated our Microsoft Word document of the UCMJ to include the most recent changes. This is an annual project of mine. The document is available here: UCMJ.

But I’m revisiting the topic now because I discovered an error in the version that I posted last month. As part of this year’s update, I added the 2006 and pre-2006 versions of Article 120 to the document (because I use the document myself, and I often need to reference these older versions). Unfortunately, in the section captioned as the 2006 version of Article 120, the text was the current (2012) version. I’ve now corrected this mistake.

So, if any of our three readers downloaded the Word document in the past month, please download it again. I also hope to publish an online version sometime this year.

And if anyone identifies any other errors (even typographical), please drop me a note at

I’ve updated our Microsoft Word version of the UCMJ to incorporate the changes from the FY15 NDAA.

The September 10, 2014, version of the Military Judges’ Benchbook is available on the Army Trial Judiciary’s website here (you may have to scroll down significantly to see the page content). You can also use this direct link to download the 5 MB PDF from the Army site.

Thanks to reader T for the tip.

Another guest blog – by Dew_Process.  In some prior posts we had great input from Chris Kennebeck regarding the JSC, which I had forgotten.

[“Jr.Editor” note — first some background.  Dew_Process posted with me recently at my invitation so it wasn’t really a true guest post.  The other day he and I came across the same case.  I invited him to submit a post.  Which he has done.  He said I could edit it – I haven’t (except to put in the links).  The invitation went out before my invitation to AFJAG to write on Witt or Chron for us.]

This court has been asked to issue a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for the contents of a cell phone that is currently in the custody of the Drug Enforcement Agency (DEA). Based on this courts previous rulings and other case law this request has been denied. [ emphasis added]

So begins the opinion in the case of In re Nextel Cellular Telephone, 2014 WL2898262 (D.Kan. 2014). Regular readers of CAAFlog will note that the subject of cell phone searches is something that has generated frequent interest here.  Thus, the Nextel decision coming on the heels of Riley v. California, 2014 WL 2864483 (2014), should be of interest to all military justice practitioners, regardless of which side of the aisle one is on. And for those readers who handle post-conviction relief issues, Nextel is important because it relies heavily on Tenth Circuit caselaw – decisions that apply to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.

Why the court denied the search warrant in this case is instructive. A confidential source had given the DEA information that a particular vehicle was carrying roughly 15 pounds of methamphetamine. According to the DEA agent’s application, during a “consent” search of the vehicle, they: “seized as evidence from [redacted] his NEXTEL cellular telephone which was identified as a black and orange NEXTEL smartphone. . . .” Thereafter, the DEA agent submitted an application for a search warrant to the federal magistrate judge.

The application stated in pertinent part: Read more »