UNLAWFUL COMMAND INFLUENCE – CAAF SETS ASIDE BUT AUTHORIZES A REHEARING

CAAF decided the Air Force case of United States v. Boyce on Monday, May 22, 2017.  A deeply-divided court held that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this sexual assault case.  And while the court finds no prejudice to Boyce, the majority “conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.” SAs a remedy CAAF sets aside Airman (E-2) Boyce’s convictions of the rape and battery of his wife, authorizing a rehearing.  So this Airman will likely be retried (or will work out a pretrial agreement in the alternative).

UCI at one time was labeled the “mortal enemy of military justice.”  It is codified under Article 37(a), UCMJ, which states in pertinent part: “No person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial … or any member thereof.”  The crux of actual UCI is that, because of military authority exerted by a superior (or senior civilian employee/appointee of a military department), a participant in the court-martial process has been influenced.   The clearest example would be where a commander discourages witnesses from testifying on behalf of an accused.  Apparent UCI is the second type of UCI, and is present when the public may perceive UCI to impact the court-martial though there is not actual UCI present.

I Boyce, the General Court-Martial Convening, LtGen Craig Franklin had been told by the Air Force Chief of Staff, following his grant of clemency to a LtCol James Wilkinson in a sexual assault case in 2013, that, unless he retired, the Secretary of the Air Force would fire him.  LtGen Franklin referred Boyce’s charges for trial by General Court-Martial after receiving recommendations that the charges be referred by the special court-martial convening authority, an investigating officer, and his staff judge advocate.  Boyce’s defense counsel asserted LtGen Franklin’s referral decision was the product of actual and apparent UCI.

CAAF quickly rejected the actual UCI claim.  By a bare majority, CAAF found that the presence of apparent UCI: “[W]e conclude that members of the public would understandably question whether the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force improperly inhibited Lt Gen Franklin from exercising his court-martial convening authority in a truly independent and impartial manner as is required to ensure the integrity of the referral process. Indeed, we adopt Lt Gen Franklin’s words as our own: “[It] would be foolish to say there is no appearance of UCI.”

So What happens to Airman Boyce?  For now, his convictions are gone.  A new General Court-Martial Convening Authority will have decide whether to retry him for rape and battery of his wife.  If his wife refuses to cooperate at this point, the Air Force could forego the trial and seek a favorable plea agreement or pursue administrative separation.  At any retrial, he can only be retired for the offense of which he was found guilty and cannot receive any punishment more severe than that at the first court-martial (E-1, forfeitures, and 4 years confinement – surprisingly it does not appear that he received a punitive discharge).

Attorney Patrick Korody is a former Navy Judge Advocate who has tried sexual assault courts-martial at military installations around the world.  He specialized is sexual assault cases while on active duty.  His office is located in Jacksonville, FL and he can be reached at (904) 383-7261.

 

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