CAAF will hear oral argument in the Army case of United States v. Clark, No. 19-0411/AR (CAAFlog case page), on Tuesday, February 11, 2020, at 9:30 a.m. The court granted review of three issues involving R.C.M. 914 (the military version of the Jencks Act, 18 U.S.C. § 3500) and pretrial statements made by military law enforcement agents:

I. Did the military judge err in applying R.C.M. 914?

II. If the military judge erred, under what standard should this Court assess prejudice?

III. Was there prejudice under the applicable standard of review?

Sergeant (E-5) Clark was convicted by a general court-martial composed of members with enlisted representation of making a false official statement, rape of a child, and sexual assault of a child, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Suspecting Clark of sexually molesting his daughter, military investigators interrogated him over the course of two days. Clark waived his rights, made damaging admissions, and ultimately gave a confession. Both days of interrogation were video recorded, however the agents failed to preserve the recording of part of the second interrogation (during which Clark made his fullest confession). The defense moved to abate the proceedings under R.C.M. 703(f)(2), Manual for Courts-Martial (2016 ed.) (moved to 703(e)(2) in the 2019 ed.), on the basis that the lost video was essential evidence of the circumstances under which the confession was obtained (and potentially manipulated by the investigators). But the military judge denied the motion, concluding that testimony about the interrogation was an adequate substitute for the recording.

Then, during trial, when the agents testified about the interrogations, the prosecution introduced evidence about the agents’ own statements during the period of the interrogations where the video was lost. That allowed the defense to make a R.C.M. 914 objection to the testimony of the agents, setting the stage for the issues now pending CAAF’s review.

R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), which requires production of the prior statements of a witness that are related to the subject matter of the witness’ testimony. CAAF last considered the rule in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), and it unanimously affirmed a trial-stage ruling that struck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. The military judge in Clark, however, held that R.C.M. 914 does not apply to the agents’ questions to Clark during the interrogation.

Clark raised the military judge’s ruling as error on appeal. A three-judge panel of the Army CCA suggested that the military judge was wrong and that R.C.M. 914 does apply to the agents’ questions. Nevertheless, the CCA concluded that any error was harmless because of the strength of the other evidence, including the portions of the interrogations where the video was preserved. In so ruling, the CCA distinguished CAAF’s opinion in Muwwakkil (where the court held that R.C.M. 914 does not require a prejudice analysis to warrant relief) on the basis that Muwwakkil involved an interlocutory review while Clark involves an ordinary (post-conviction) appeal for which Article 59 requires a showing of prejudice.

The three granted issues question the CCA’s decision broadly, asking whether there was error, how to review any error, and if the error was prejudicial. Clark’s brief concedes that CAAF’s review is narrow and that the court should test for prejudice, but argues that his conviction should nevertheless be reversed.

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Yesterday CAAF granted review in this Air Force case:

No. 19-0449/AF. U.S. v. Ladarion D. Stanton. CCA 39161. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

THE CONVENING AUTHORITY AND APPELLANT ENTERED INTO AN AGREEMENT THAT APPELLANT WOULD BE ADMINISTRATIVELY DISCHARGED IN LIEU OF THE SENTENCE REHEARING AUTHORIZED BY THE LOWER COURT. THE CONVENING AUTHORITY THEN PROCEEDED WITH APPELLANT’S COURT-MARTIAL BY APPROVING A SENTENCE OF “NO PUNISHMENT” AND FORWARDING THIS CASE TO THE LOWER COURT FOR FURTHER APPELLATE REVIEW. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE FOR BREACH OF A MATERIAL TERM OF APPELLANT’S PRETRIAL AGREEMENT WITH THE CONVENING AUTHORITY?

Briefs will be filed under Rule 25.

AFCCA’s opinion is available here. The opinion provides the following background:

On 20 July 2018, before the convening authority took action for the second time, the convening authority withdrew and dismissed without prejudice the pending two specifications of sexual assault and one specification of aggravated sexual contact. On the same day, Appellant requested to be administratively discharged “in lieu of trial by court-martial.” On 25 July 2018, the convening authority approved Appellant’s request and directed that Appellant be administratively discharged with an under other than honorable conditions service characterization. Two days later the convening authority took action on Appellant’s court-martial and approved a sentence of “no punishment,” as described above.

Slip op. at 1.

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.

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This week at SCOTUS: The Court has scheduled oral argument in Briggs for March 23, 2020. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 11, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Painter, No. 39646, on Wednesday, February 5, 2020, at noon at the George Washington University Law School. No additional 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 will hear oral argument in one case this week, on Thursday, February 6, 2020, at 10 a.m.:

United States v. Simpson, No. 201800268

Issues:
I. To convict under Article 120c(a)(3), must the Government prove the attendant circumstances of both an indecent viewing under Article 120c(a)(1) and an indecent recording under Article 120c(a)(2)?

II. Whether one who causes another to deliver an indecent visual recording to oneself may providently plead guilty to distribution of that same indecent visual recording under Articles 77 and 120c(a)(3) in light of United States v. Hill, 25 M.J. 411 (C.M.A. 1988)?

III. Given the Government’s charging theory, were Appellant’s guilty pleas to Charge I, Specifications 2 and 3 provident when his alleged co-conspirator was not subject to the UCMJ?

I enabled HTTPS/SSL on CAAFlog more than two years ago, and haven’t heard any complaints (about that).

I plan to make that the default address on Monday morning. The site will still be accessible over an unsecured (HTTP) connection, but all internal links will default to HTTPS. The primary reason for the change is to simplify some things on my end (that I could probably figure out how to fix with code, but this is much easier).

Please let me know (by email to Zack@CAAFlog.com) if you have any issues accessing the site.

Back in November, CAAF granted review in the Marine Corps case of United States v. Baas, No. 19-0377/MC (discussed here). The case involves the admission of a gonorrhea screening test and includes a Confrontation Clause challenge and a substantive challenge to the reliability of the test.

CAAF’s daily journal has this entry from Tuesday:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. On consideration of Appellee’s motion to return or strike Appellant’s brief for non-compliance with this Court’s rules, it is ordered that the motion is granted in part, regarding Appellant’s citation to the Diatherix manual found on pages 10, 11, 12, and 51 of his brief, that the motion is denied in part, regarding Appellant’s citation to Thinking, Fast and Slow, and the brief is returned to Appellant to refile a brief that complies with this Order on or before February 5, 2020.

I can’t recall any other example of CAAF rejecting a brief from an individual appellant, and certainly not on motion of a Government division.

Last week the Army CCA issued this published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Writing for the court, Judge Schasberger give us the bottom line up front:

At the time of appellant’s court-martial, the presiding military judge engaged in an inappropriate relationship with the wife of one of the prosecuting attorneys assigned to appellant’s case. This inappropriate relationship created the appearance that the military judge lacked impartiality in appellant’s court-martial. Under the circumstances of this case, we are compelled to set aside the findings of guilt and sentence and authorize a rehearing.

Slip op. at 1. The military judge is named in the CCA opinion: Lieutenant Colonel Richard Henry.

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The following notice is posted on CAAF’s website:

The Joint Service Committee on Military Justice

Notice of Public Meeting

When: Wednesday, February 19, 2020, at 10:00 a.m.

Where: U.S. The Court of Appeals for the Armed Forces, 450 E Street, N.W., Washington, D.C. 20442-0001

Purpose: To solicit public comments on proposed amendments to the Manual for Courts-Martial. Proposed changes will be available via the Federal Register prior to the meeting.

Questions: Contact Lieutenant Colonel Adam S. Kazin, adam.s.kazin.mil@mail.mil

Information about the Joint Service Committee is available at https://jsc.defense.gov/

On Friday CAAF docketed this certification from the Army:

No. 20-0119/AR. U.S. v. Antonio T. Moore. CCA 20180692. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date on the following issue:

DID THE ARMY COURT ERR WHEN, UPON RECONSIDERATION, IT DETERMINED THAT THE 5-YEAR STATUTE OF LIMITATIONS BARRED THE REHEARING OF THE TWO SEXUAL ASSAULT SPECIFICATIONS?

Appellee will file an answer under Rule 22(b) on or before the 24th day of February, 2020.

The case involves an Article 62 interlocutory appeal of a military judge’s ruling that dismissed all of one specification and part of a second specification for violation of the statute of limitations based on a post-referral major change. The Army CCA issued two opinions, the first available here and the second available here.

The facts are complicated, but can be summarized as that the case was remanded with a rehearing authorized for five specifications of sexual assault (in a decision noted here). In advance of the rehearing the prosecution amended the language in the specifications, changing the alleged acts in ways that the military judge ruled constituted major changes (see United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page)). Those changes resulted in all five specifications violating the statute of limitations for sexual assault, because the alleged acts occurred before Congress eliminated the five-year statute of limitations (in the 2013 changes to the UCMJ, discussed here), and more than five years before the change. In other words, by changing the specifications the prosecution functionally restarted the case and triggered the statute of limitations.

The defense objected and the military judge dismissed all five specifications in two separate rulings. The first ruling was made before findings and dismissed three specifications, and the prosecution did not appeal that ruling. The second ruling was made post-trial (after a renewed defense motion) and dismissed part of one of the remaining two specifications, and all of the other. The prosecution appealed the second ruling.

In the CCA’s first opinion, a three-judge panel split 2-1 to conclude that the changes to the two specifications were merely minor changes that did not implicate the statute of limitations, and it granted the prosecution appeal and reversed the military judge. But Moore sought reconsideration, and with the help of a change in panel composition the decision changed to 2-1 in favor of rejecting the prosecution appeal and affirming the military judge’s ruling on the basis that the changes were, after all, major changes.

CAAF will now review that decision.

On Friday the en banc Navy-Marine Corps CCA issued this opinion on reconsideration in United States v. Begani, __ M.J. __, No. 201800082, splitting 4-3 to affirm the validity of Articles 2(a)(4) and 2(a)(6), which apply court-martial jurisdiction to retired members of the regular components and to members of the Fleet Reserve (Navy) and Fleet Marine Corps Reserve.

The decision is a dramatic (but not unexpected) reversal of the decision of a three-judge panel of the court issued back in July and discussed here. If you’re not familiar with this case then you should probably read that post before continuing.

The panel had held that Articles 2(a)(4) and 2(a)(6) violate the Due Process Clause’s guaranty of equal protection of the laws because they do not also apply court-martial jurisdiction to retired reservists. I wrote in this second post that the panel’s decision was fundamentally flawed because the panel overlooked the fact that reserve retirees need not have any current connection to the service to receive their reserve retired pay. Citing numerous statutes, regulations, and court decisions, I explained that reserve retired service and reserve retired pay are mutually exclusive statuses, while regular retired pay is a direct consequence of regular retired service. That is a significant distinction between reserve and regular retirees that eliminates any equal protection argument (and if you’re not familiar with reserve retirement then you should also read that second post before continuing).

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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 five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 11, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 6, 2020.

Back in August we noted the allegation of murder against Coast Guard Seaman Tucker, and a news report stated that Tucker was placed into pretrial confinement pending a court-martial for murder, involuntary manslaughter, aggravated assault, maiming, obstructing justice, making a false statement, and failure to obey an order or regulation.

Tucker challenged that confinement, petitioning the Coast Guard CCA for a writ of habeas corpus. The CCA denied the writ in an order available here. In it, the CCA observed that:

There is probable cause to believe Petitioner committed an offense. The real issue here is whether it is foreseeable that Petitioner will not appear at future proceedings or will engage in serious criminal misconduct; and whether less severe forms of restraint are inadequate.

We note that the memoranda of the Commanding Officer and IRO contain a number of conclusory statements and leaps of logic that do little to explain why, given the individual circumstances of this case, it is foreseeable that Petitioner will not appear at future proceedings or will commit further serious misconduct and that lesser forms of restraint would be inadequate.

In re Tucker, No. 003-19, slip op. at 2 (C.G. Ct. Crim. App. Oct 18, 2019). Nevertheless, the CCA refused to further consider the merits of the petition because the case has not been referred and:

it is “well established that one who believes he is wronged by a decision directing his confinement prior to trial, must pursue the remedy provided by Article 138, [UCMJ], prior to seeking the intervention of this Court pursuant to [the All Writs Act].”

Slip op. at 3 (quoting Catlow v. Cooksey, 44 C.M.R. 160, 162 (C.M.A. 1971)). Article 138 provides service members with a formal complaint resolution process. Military justice matters are generally not the proper subject for such a complaint, but the CCA held that the fact that the case has not yet been referred “does not preclude Petitioner from seeking redress” under Article 138. Slip op. at 3 n.1.

The CCA’s decision in Tucker is interesting because it seems to be the first time that any court relied on Catlow (and insisted on exhaustion of the Article 138 remedy) since the decision in Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976), that required a neutral and detached magistrate review the decision to place an accused into pretrial confinement. That requirement is implemented in R.C.M. 305, which establishes a comprehensive review process. There is, I think, a good argument that the R.C.M. 305 process (including reconsideration by the neutral officer under R.C.M. 305(i)(2)(E), and post-referral review by a military judge under R.C.M. 305(j)) removes the question from Article 138 entirely.

Nevertheless, the CCA’s decision likely has a short lifespan, because Congress gave military judges the ability to consider matters pre-referral when it created Article 30a in the Military Justice Act of 2016, and it expanded the list of matters that may be considered to include pretrial confinement in § 531 of the National Defense Authorization Act for Fiscal Year 2020. Accordingly, once the President implements the expanded Article 30a power, an accused’s pre-referral challenge to pretrial confinement will definitely be a judicial matter and the proper subject of a habeas petition.

The registration form is available here.

On Tuesday CAAF granted review in three cases.

Two involve the new Mil. R. Evid. 801(d)(1)(B)(ii), which is an issue the court is already considering in United States v. Finch, No. 19-0298/AR (CAAFlog case page). CAAF heard oral argument in Finch on December 4, 2019. During the oral argument, the Army Government Appellate Division largely conceded that the Army CCA correctly interpreted the new rule as not expanding the range of admissible statements beyond those that actually rehabilitate the witness on the specific point of impeachment (which have always been admissible, just not for their truth). The new cases are from the Navy and from the Army:

No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.

II. WHETHER THE GOVERNMENT TRIAL COUNSEL’S ARGUMENTS AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT WARRANTS RELIEF.

Briefs will be filed under Rule 25.

No. 20-0033/AR. U.S. v. Thomas Ayala. CCA 20170336. 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 ABUSED HIS DISCRETION IN ADMITTING THE VICTIM’S PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii).

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA issued a published decision in Norwood (available here), that I noted in my post about CAAF’s grant in Finch. Norwood is like Finch in two significant aspects. First, the NMCCA reached the same basic decision about the scope of the new Mil. R. Evid. 801(d)(1)(B)(ii) in Norwood as the ACCA reached in Finch:

Only the second part of the amended rule is new and it does not change the admissibility of prior consistent statements used only to rehabilitate a witness’ credibility. It does, however, change what the statement can be used for once it is admitted into evidence. A prior consistent statement, not otherwise admissible under Mil. R. Evid. 801(d)(1)(B)(i), can now be used as substantive evidence as well as to rehabilitate the witness’ credibility.

United States v. Norwood, 79 M.J. 644, 655, slip op. at 4 (N-M Ct. Crim. App. 2019). Second, in both Norwood and Finch the CCAs concluded that the statements at issue were admissible under Mil. R. Evid. 801(d)(1)(B)(i) because they rebutted defense charges of recent fabrication. That makes the first granted issue in Norwood somewhat curious, as it is does not challenge the NMCCA’s conclusion that the prior statement “squarely falls under part (i) of the rule.” 79 M.J. at 656.

The NMCCA also found “isolated and brief” improper arguments that it concluded were harmless. 79 M.J. at 664-665.

The Army CCA’s opinion in Ayala is here. The CCA found portions of the prior consistent statement to be admissible under part (i) of the rule, and other portions admissible under part (ii).

CAAF’s the third grant is from the Air Force and involves probable cause:

No. 20-0019/AF. U.S. v. Jared D. Bavender. CCA 39390. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE LOCATED ON APPELLANT’S DIGITAL MEDIA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The appellant admitted to looking at child pornography, and his admissions were used as the basis for a search authorization for his electronic media (where investigators discovered contraband child pornography). The defense moved to suppress the fruits of the search on the basis that the admissions didn’t actually provide probable cause because:

no information was included in the affidavit [supporting the request for the search authorization] about Appellant’s account of the settings, actions or poses of the children. Similarly, Appellant told the agents how he sought pictures of nude children by searching “nudist websites.” The pictures he found, so he claimed, did not depict minors engaged in sexual acts. Appellant denied looking at images on the Internet of children “actually having sex,” and maintained that the closest thing to a sexual image he saw online was a photo from a nudist website of a group of people standing naked and looking at the camera. One of those individuals was a teenage girl, and it was possible she was looking at a boy’s genitalia. The Defense relayed to the military judge that none of these facts were included in SA VL’s affidavit or provided to the magistrate, thereby rendering the search authorization inadequate.

United States v. Bavender, No. 39390, slip op. at 5 (A.F. Ct. Crim. App. Aug. 23, 2019). The military judge denied the motion on the basis that the appellant’s admissions provided a sufficient factual basis for probable cause, and the CCA affirmed.

This week at SCOTUS: Two amicus briefs – both in support of the Government – were filed in Briggs. First, 13 members of Congress (4 Republicans and 9 Democrats) filed this brief arguing that CAAF’s decision in Mangahas improperly rewrote the UCMJ to eliminate Congress’ intent that no statute of limitations apply to rape from 1986 onward. Second, Ms. Harmony Allen (the victim in Collins) and the special interest group Protect our Defenders filed this brief that makes a broad-based attack on CAAF’s decision in Mangahas.

In other news, the Government requested additional time to file the requested response in Richards, and it requested additional time to respond to the cert. petition in Voorhees.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 11, 2020.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 23, 2020, at 3 p.m., at the Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, Pennsylvania  17110:

United States v. Holmes, No. 20180572

Issue: Applying self-defense, as recognized under Rule for Courts-Martial 916(e) and common law, is appellant’s conviction for maiming legally and factually sufficient?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 6, 2020.