For Appellant: Captain Steven P. Haight (argued); Colonel Adele H. Odegard, Major Jonathan F. Potter, and Captain David S. Hurt (on brief); Lieutenant Colonel David A. Mayfield and Major Scott R. Morris.

For Appellee: Captain Mary E. Braisted (argued); Major Bryan T. Boyles (on brief); Lieutenant Colonel Edith M. Rob and Captain Katherine M. Kane.

Military Judge: Richard J. Hough
 
 

Judge SULLIVAN delivered the opinion of the Court.

During the fall of 1997, appellant was tried by a special court-martial composed of officer and enlisted members at Fort Sill, Oklahoma. Contrary to his pleas, he was found guilty of breaching the peace, two specifications of assault with a dangerous weapon, a knife, on different soldiers, and wrongfully communicating a threat, in violation of Articles 116, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 916, 928, and 934, respectively. On October 17, 1997, he was sentenced to a bad-conduct discharge, confinement for 6 months, forfeiture of $600.00 pay per month for 3 months, and reduction to pay grade E-1. On February 5, 1998, the convening authority approved this sentence, and on September 16, 1999, the Court of Criminal Appeals affirmed. 51 MJ 605.

On April 12, 2000, this Court granted review on the following issue:

The facts in this case which pertain to the granted issue are not disputed. The appellate court below summarized them as follows:

The Court of Criminal Appeals, after a lengthy historical analysis of the ineradicable stigma instruction, held that under the circumstances of the particular case, the military judge’s action was arbitrary, clearly unreasonable, and constituted an abuse of discretion because he inexplicably refused to give the standard sentencing instruction after a timely request without stating any reason for his decision to deviate from the Benchbook. Id. at 610. Nevertheless, it concluded that in light of certain factors delineated in United States v. Soriano, supra, the omission of the instruction did not prejudice appellant as to his sentence.

Our starting point in resolving the granted issue is the opinion of the Court of Criminal Appeals. It exhaustively explored the origins of the standard instruction provided in the Military Judges’ Benchbook on the ineradicable stigma of a punitive discharge. It said in pertinent part:

We share the lower appellate court’s concern that military members be properly instructed as to the severe nature of a punitive discharge. See United States v. Soriano, 20 MJ at 337. We also agree with the lower appellate court that the military judge has a duty to explain why he is refusing to give a standard instruction requested by the defense. See RCM 1005(c) ("The military judge shall inform the parties of the proposed action on such requests before their closing arguments on sentence."); see also United States v. Neal, 17 USCMA 363, 365, 38 CMR 161, 163 (1968). In our view, meaningful appellate review of the trial judge’s decision on this important sentencing matter requires that he articulate his reason for his decision. See United States v. Smith, 50 MJ 451, 455 (1999).

The remaining question before us is whether the failure of the trial judge to give the defense requested standard instruction without explanation was harmless error. There was no constitutional error here, but rather a violation of a Manual provision promulgated by the President to ensure a military accused a fair trial. See RCM 1005(c). In this context, we must decide whether this objected to error substantially influenced the sentence proceedings such that it led to a bad-conduct discharge being unfairly imposed in this case. See Art. 59(a), UCMJ, 10 USC § 859(a). We conclude that it did not.

As noted above, the instructions actually given in this case did expressly state to the members that "a bad-conduct discharge is a severe punishment." (R. 436). See United States v. Soriano, supra at 343. Second, three of the four offenses for which appellant was found guilty were aggravated in nature and individually authorized a punitive discharge. See paras. 110(e) and 54(e)(8), Part IV, Manual, supra. Third, defense counsel conceded to the members that appellant would be otherwise stigmatized, lose benefits, and have his military career terminated by reason of his felony convictions. (R. 431-32). Finally, this case was tried before experienced members (e.g., two colonels, two lieutenant colonels, and three command sergeant majors) who could reasonably be expected to appreciate the severity of this punishment on their own. In these circumstances, as in Soriano, supra, we find no prejudice and affirm.

The decision of the United States Army Court of Criminal Appeals is affirmed.

FOOTNOTE:

* The current version of this rule is identical to the one in effect at the time of trial.

EFFRON, Judge (concurring in part and dissenting in part):

I agree with the lead opinion's conclusion that the military judge erred by not giving the requested instruction on the ineradicable stigma of a bad-conduct discharge. The instruction echoes the special attention of Congress to the stigma of a bad-conduct discharge, which is reflected in those portions of the UCMJ providing that a bad-conduct discharge may be imposed only when the accused has been provided with detailed defense counsel, a verbatim record has been prepared, a military judge has presided at trial (unless precluded by physical conditions or military exigencies), and judicial review has been conducted (unless waived or withdrawn). See Arts. 19, 66(b)(1), and 71(c), UCMJ, 10 USC §§ 819, 866(b)(1), and 871(c), respectively. It is noteworthy that Congress, by contrast, has authorized the imposition of confinement for up to 6 months without any of these protections. See id. Special attention to the stigma of a bad-conduct discharge is not simply a vestigial item from an earlier era, but reflects recent congressional attention to these issues. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 577(a), 113 Stat. 512, 625 (1999).

I disagree with that portion of the lead opinion finding that appellant was not prejudiced by the military judge's refusal to give this required instruction -- a standard instruction that was specifically requested by appellant. The lead opinion finds the error to be harmless based upon the nature of the offenses, the general references by the military judge and defense counsel to the seriousness of a bad-conduct discharge, and the likely knowledge of the panel members. Although these factors might have rendered the error non-prejudicial if the case involved a general court-martial involving a lengthy sentence, this was not such a case.

The best measure of the nature of this case comes from the decision of the convening authority to refer it to a special, rather than a general, court-martial. In that context -- a case the command itself viewed as relatively minor -- it was particularly important that the military judge use the standard instruction to direct the attention of the members beyond generalized concerns about a bad-conduct discharge. The standard instruction would have required them to focus on the permanent stigma -- the ineradicable stain -- of a bad-conduct discharge. Under the circumstances of this case, the refusal of the military judge to give the standard instruction was prejudicial to the substantial rights of appellant. See Art. 59(a), UCMJ, 10 USC § 859(a). I would reverse and remand for a new sentencing proceeding.

CRAWFORD, Chief Judge (concurring in the result):

RCM 1005(e), Manual for Courts-Martial, United States (2000 ed.), requires certain instructions. Nowhere at the time of appellant’s trial did that rule require an instruction to the effect that a punitive discharge creates "an ineradicable stigma."¹ The same holds true today. In particular, RCM 1005(e)(2) requires members to be instructed that any sentence involving a punitive discharge and confinement, or confinement in excess of 6 months, will have an effect on a servicemember’s entitlement to pay and allowances.² If the President had intended that members be instructed that punitive discharges carried a stigma of some type, he would have added it in this section.

In my view, the Court of Criminal Appeals erred when it rejected the contention that the ineradicable stigma instruction was optional. A Department of the Army Pamphlet, albeit a widely respected, constantly used and up-to-date Military Judges’ Benchbook, published by the Secretary of the Army, does not take precedence over a Rule for Court-Martial promulgated by the President.

United States v. Soriano, 20 MJ 337 (CMA 1985), held that a punitive discharge was a severe punishment and court members were to be instructed accordingly. I completely agree. The court members in this case were properly instructed.³

The ineradicable stigma instruction found in the Military Judges’ Benchbook addresses the effect of a punitive discharge on one individual (the accused at trial) vis-a`-vis all of the servicemembers who do not receive a punitive discharge. It is one thing to instruct court members that a punitive discharge is severe punishment. It is quite another thing to tell court members that an adjudged punitive discharge may have an ineradicable stigma when such may not be the case at all.

This court has frequently emphasized the importance of giving members appropriate instructions. See, e.g., United States v. Greaves, 46 MJ 133 (1997). Instructions that are appropriate must be tailored to the facts of each case and may reflect perceptions as well as developments in social and labor trends. See United States v. Tualla, 52 MJ 228, 233 (2000) (Crawford, C.J., concurring).

Even today, the majority does not hold that the ineradicable stigma instruction is required. They find that the military judge erred by not explaining why he was refusing to give the instruction. While an explanation from the military judge may have been helpful to both the lower court and this Court in reviewing this case, an explanation was not required because the ineradicable stigma instruction, albeit a "standard one," was not required by RCM 1005(e) or the law of this Court. The onus was on trial defense counsel to justify why such an instruction was appropriate under the facts of this case. As I have said previously, "The forum for initiating a new or different application of facts to existing law is the trial court. The bellwether to bring changed conditions to the forefront should be either the trial or defense counsel." Id. at 232. Reliance on a 1978 law review article⁴ to determine what, if any, stigma is attached to a punitive discharge is no longer justified.

FOOTNOTES:

¹ The instruction which defense counsel sought, but was refused by the military judge, is:

² This provision was not even in effect at the time of appellant’s trial.

³ The military judge instructed the members as follows: