fNTHE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED ST ATES, ) SUPPLEMENT TO PETITION

) FOR GRANT OF REVIEW
Appellee, )
) Crim . App. Dkt. No.
V. ) ARMY 20170582
)
ROBERT B. BERGDAHL ) USCA Dkt. No.
Sergeant (E-5) )
U.S. Anny, )
)
Appellant. )

TO THE JUDGES OF THE UNITED STATES

COURT OF APPEALS FOR THE ARMED FORCES:

Index

Table of Authorities ................. ....... ..... .. ............... .............. .... .. ........ ....... ....... ......... iii

Assigned Errors ............................................... .............................................. ..... ....... I

Statement of Statutory Jurisdiction .. ...... ................................................................... 1

Statement of the Case............................. ... ...... .......................................................... l

Statement of Facts ...... ......... ...... ...... .............. ........ ....... ....... ....... .............. ... .............. 4

Reasons for Granting Review ..................................... ....... ........ ................ .............. 6

Introduction ....................................... ....... ................... ................. ...... ....... ...... .. ... 6

Argument .............. ................... .. .............. ........ ....... ............................................. 8

I. THE CHARGES AND SPECIFICATIONS SHOULD BE

DISMISSED OR OTHER MEANINGFUL RELIEF GRANTED
BECAUSE OF APPARENT UNLAWFUL COMMAND
INFLUENCE ................................ ....... ............... ....... ....... ....... .................. 8

I
 A. Senator McCain's threat to hold a hearing if Sergeant Bergdahl
were not punished violated Article 37, UCMJ .................. ............. ...... 9

B. The govenunent did not meet its high burden of proof as to

the pre-inaugural statements that President Trump ratified
after taking office ... ............... ...... ....... ....... ..... ............... ...... ............ 11

C. The "disgrace" and "traitor" tweets and the other UCI

cumulatively warrant dismissal with prejudice or other
meaningful relief ......... ....................................... ................................ 15

IL THE CHARGES WERE UNREASONABLY MULTIPLIED .. ..... .. ...... 20

Ill. THE MILJTARY JUDGE IvllSAPPLIED THE SPECIFIC INTENT

ELEMENT OF SHORT DESERTION.... ..... .... ..... ...... ............. . 23

IV. THE MISBEHAVIOR CHARGE DOES NOT STATE

AN OFFENSE ......................... ............. .. ................................................. 28

Conclusion ........................ ......... ...................................................................... ....... 33

Certificate of Compliance with Rules 21(b) and 37 ............................ ............. .. ... 34

Certificate of Filing and Service ...... ....... .......................................... ............. 34

Appendix

United States v. Bergdahl, ARMY 20170582, 2019 WL 3210171

(A. Ct. Crim. App. July 16, 2019)
Bergdahl v. Nance, ARMY MlSC 20170114 (A. Ct. Crim. App.
Mar. 13,2017)
United States v. Chikaka, 2018 WL 6052749 (N-M. Ct. Crim. App.
Nov. 15,2018)
Article 37, UCMJ
Article 8S(a)(2), UCMJ
Article 99(3), UCMJ
R.C.M. 104

II
 Table of Authorities

Cases

Supreme Court of the United States

Johnson v. United States, 135 S. Ct. 2551 (2015) .... ................................ .............. 32
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) ......................... 11

U .S. Court of Appeals for the Armed Forces

In re Bergdahl, 76 M.J. 38 (C.A.A.F. 2016) (Order) ....... ........ ............... .................. 3

Rergdahl v. Nance, 76 M.J 342 (C.A.A.F. 2016) (Order) .................................... ... 3
United States v. Apple, 2 C.M.A. 592, IO C.M..R. 90 (I 953) ... ... .. ...... .... ..... 26
United States v. Barry, 78 M.J. 70 (C.A.A.F. 20 18) ..... ....... ...................... ..... 8, 9, 16
United States v. Boyce, 76 M..T. 242 (C.A.A.F. 2017) .. .............................. 10, 16, 17
United :'i'tates v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) ..... ............. .... ... ................. 8
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969) ............... .. . 24, 27
United States v. Carey, 4 C.M.A. I I2, 15 C.M.R. 112 ( 1954) ....................... .. 28, 29
United States v. Flesher, 73 M.J. 303 (C.A.A.F. 2014) ........................... ............... 20
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) ................................... ...... 32
United Slates v. Gleason, 78 M..T. 473 (C.A.A.F. 2019) ......................................... 11
United States v. Gonzalez, 42 M.J. 469 (C.A.A.F. 1995) ....................................... 26
United States v. GrosteJon, 12 M.J. 431 (C.M.A. 1982) ..... ..................... ........... I
United States v. Huet- Vaughn, 43 M.J. 105 (C.A.A.F. 1995) ............................ .... 27
United States v. Hursey, 55 M .J. 34 (C.A.A.F. 2001) ... ...... .............. ..... ................ 20
United States v. iUarlinelli, 62 M.J. 52 (C.A.A.F. 2005) ................................. ....... 30
United States v. Norwood, 71 M.J. 204 (C.A.A.F. 2012) ............ ...... ....... .............. 32
United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) ............................. .. 20, 21, 22
United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 201 8) ...... ........ ....... ............... .... 16
United States v. Salyer, 72 M .J. 415 (C.A .A .F . 2013) .................. .. ............. ....... .... 12
United States v. Sch/off, 74 M.J. 312 (C.A.A.F. 20 15) ... .................... .. ....... ....... .... 28
United Stales v. Simpson, 58 M.J. 368 (C.A.A.F. 2003) ...... ....................... ....... .... 17
United Stales v. Tucker, 76 M.J. 257 (C.A.A.F. 20 17) (per curiam) ...................... 30
United States v. Warner, 73 M .J. l (C.A.A.F. 20 13) ............ ....... .............. ............. 32
Uniled States v. Zarbatany, 70 M .J. 169 (C.A.A.F. 20 11) ...................... ....... ..... 16

Ill
Courts of Criminal Appeals

Bergdahl v. Nance, ARMY MISC 20 17011 4 (A. Ct. Crim. App. Mar. 13, 2017)
(Order) .................. ........ ............... ........................................ ........ .............. ......... 14
United States v. Bergdahl, ARMY 20 170582, 2019 WL 3210171
(A. Ct. Crim. App. July 16, 2019) ........... ... .. ................... ....................... passim
United States v. Chikaka, 2018 WL 6052749 (N-M. Ct. Crim. App. Nov. 15,
2018), set aside, 2019 WL 2070678 (C.A.A.F. Apr. 2, 2019)...... ......... ...... 17, 19
United States v. Kohlman, 2 I C.M.R. 793 (A.B.R. 1956) ....... ............... ............... . 32
United States v. Paige, 6 M.J. 529 (A.C.M .R. 1978) ... ................................... ......... 3

Other Courts

Knight First Amend. Inst. at Columbia Univ. v. Trump, 925 F.3d 226
(2d Cir. 2019) ......... ................................................................................ .......... .. 15
Topps v. State, 865 So.2d 1253 (Fla. 2004) (per curiam) ......................................... 3
Uniled States v. Dean, 752 F.2d 535 (I I th Cir. 1985).............................................. 3
United States v. Hubbard, 650 F .2d 293 (D .C. Cir. 1980) ........ .... .. ..................... 3

Constitution and Statutes

U.S. Const. art. II,§ 2, cl. l ............................. ........... ........................... ........... 11

U.S . Const. amend. 5 ... ........ ....................................................................... ............ 11
Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.:
Art. I 3 ... ................................... ............................ ......... ............. .............. .......... 16
Art. 22(a)(J) ..... .............. ....... ....... ........ ...... ..... .......... ............... ...... ..... ... ....... ..... 15
Art. 32 ........ ...... ...... ........ .. ..... ... ................................. ........................................... 5
Art. 37 .. .... .............. ....................... .................... ............................................. 9,IO
Art. 66 ............... ........ ................................................................ ...... ....... ....... ....... l
Art. 67(a)(3) ..... ....... .............. .............. ........................................... ............... ....... l
Art. 78 .. ....... ..... ............... .......................................... ....... ....... ....... .. .............. .... 32
Art. 81 ..................... ....... ....... ....... ....... ................ ..................................... .......... 32
Art. 85 .. ....... ..................................................................................... ................ .. 2 I
Art. 85(a)(2) .... ....... ................... ........ ..... .... ........ ............................ ..... .. .. I, 26
Art. 90(2) ... ..................... ...................... ························ ················.......... ...... ...... 30
Art. 91(2) ................ ........ .. ..... .. ............ ................ ................................. .. ............ 30
Art. 92 ............. ............................................. ....... ....................................... ........ 30
Art. 99 ....... ...... ...................................... ........... ...................... ................ 21, 28, 29
Art. 99(3)......... ......... ................................... ................ ....... l, 7, 27, 29, 30, 31, 32
Art. l 05 ............................... ...... ...... . .... ........ ...... ..... ......... ....... ........ ...... .... 29

IV
 Art. l 05(1 ) ...... ....... ........ ....... ............. ........ ......... ..... ..................... ............. ......... 29
Ait. 120c .. ....... ... ............. ...... ................. .... .. ....... ..... ............... ........................ 29
Art. I 20c(d) ................................................... ............. ........ ............ ........ ............ 29
Art. 121 ........................................... .. ............. ...... .............. ................................ 30
Art. 122 .. ............ ......... ............................. ....... ............ .. ...... ................ ........ ....... 30
Art. 134 ......... ....... ....... ....... ........ ....... ....... ....... ... ............ ....... .............. ....... .. 30, 32

Rules and Regulations

Manual for Courts-Martial , United States (2016 ed.)

R.C.M. 104(a)(l) ... ...... .. ... ...... .. ............................................ 15, 16
R.C.M. 307(c)(4) .. ....... ...... ... ........................................ ............. .. ..... ............ 20
R .C .M . 906(b)( 12)(i) .. ........ ................................................................ .......... 20
19.b.(2)(b) .................... ....... ............... .............. ...... ...... ... .............. ........ ...... . 23
,r IO.b.(3)(a) ................... ............. .. ...... ....... ............... ........... ...... . .... . ...... 3 I
,r 10.b.(3)(c) ..... ...... .......... ................................. ... .............. ..... .. ...... .............. 3l
,r 23.c.(6)(b ) ..... ......... .... ............................. ....... .. .............. ......... ..... ........ ...... 30
,r 23 .f.(6) ........................ .............. ................ .............. ......... ........... .. ....... ...... 30
,r 73 ............... ........................... ................................................................ ..... 31
1 76 ....... ....... .................................... ............................................................. 31

Other Authorities

Wayne Anderson, Unauthorized Absences, ARMY LAW., June 1989 ............. ........ 32
Peter Baker, Trump Tells Navy to Strip Medals From Prosecutors in War Crimes
Trial, N. Y. Times, Aug. 1, 2019 ....... .... . ... . .. . .. ..................... ....... ......... J9
VERNON E. DAVIS, THE LONG ROAD HOME: U.S. PRISONER OF WAR POLICY AND
PLANNING IN SOUTHEAST AREA (0SD 2000) ...... .................... .............. ....... ......... 8
John Gage, 7i·ump: 'Glad I could help' After Navy SEA L Gallagher Found Nol
Guilty of' War Crimes, Wash. Examiner, July 3, 2019 ................... .. ...... ........ .... 19
JOSEPH HELLER, CATCH-22 (I 961 ) ................................................. ............... ....... ... 15
Kyle Jahner, Sens. Prod Pentagon Legal Picks on North Korea. Sex Assau/J,
Law 360, Nov. 14, 2017 .......... ................................................... ..................... 10
EMANUEL SAMUEL, A N HISTORICAL ACCOUNT OF THE BRITISH ARMY,
AND OF THE LAW MILITARY (1816) ... ....... ....... ....... ............................ ................. 32
Tom Vandcn Brook, Army says USA TODAY sto,yforced it to drop plans
for waivers.for high-risk recruits, USA Today, Nov. 15, 2017 ......................... 10
Tom Vanden Brook, McCain outraged by Army waivers.for seffmutilation;
He threatens to suspend Pentagon nominations, USA Today, Nov. 15, 2017 .... 9

V
Rachel E. Va11Landingham & Geoffrey S. Com, if We Want Troops to Follow
Orders. We Should Trust Their.Justice System, Wash. Post, Aug. l , 2019 ....... 19
Peter B. Work, Misbehavior Before the Enemy: A Reassessment,
17 AM. U. L. REV. 447 ( l 968) ............... ................ .................... ...... ....... ............ 32

VJ
 Assigned Errors

I. WHETHER THE CHARGES AND SPECIFICATIONS SHOULD

BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL
RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL
COMMAND INFLUENCE

IL WHETHER THE CHARGES WERE UNREASONABLY MULTI-

PLIED

Ill. WHETHER THE MILITARY JUDGE MISAPPLIED THE SPE-

CIFIC INTENT ELEMENT OF SHORT DESERTION

TV. WHETHER THE MTSBEHA VIOR BEFORE THE ENEMY

SPECIFICATION STA TES AN OFFENSE

Sergeant Bergdahl has no additional issues he wishes the Court to address

pursuant to United Stai es v. Grostefon, 12 MJ. 431 (C.M.A. 1982).

Statement of Statutory Jurisdiction

The Court of Criminal Appeals had jurisdiction under Article 66, UCMJ . This

Court has jurisdiction under Article 67(a)(3), UCMJ. The petition for grant of review

and this supplement are timel y filed.

Statement of the Case

Sergeant Bergdahl was charged with one specification each under Articles

8S(a)(2) and 99(3), UCMJ . The specification of Charge I read:

In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States

Anny, did, on or about 30 June 2009, with the intent to shirk important
service and avoid hazardous duty, namely: combat operations in Af-
ghanistan; and bruard duty at Observation Post Mest, Paktika Province,
Afghanistan; and combat patrol duties in Paktika Province, Afghani-
stan, quit his place of duty, to wit: Observation Post Mest, located in

1
 Paktika Province, Afghanistan, and did remain so absent in desertion
until on or about 31 May 2014.

The specification of Charge 11 read:

In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States

Army, did, at or near Observation Post Mest, PaJ..'iika Province, Afghan-
istan , on or about 30 June 2009, before the enemy, endanger the safety
of Observation Post Mest and Task Force Yukon, which it was his duty
to defend, by intentional misconduct in that he left Observation Post
Mest alone; and left without authority; and wrongfully caused search
and recovery operations.

On October 16, 2017, without a pretrial agreement, SGT BergdahJ pleaded

guilty in part and not guilty in part to short desertion, contesting the duration element

except for the first day. After affording the government an opportunity to prove the

5-year period it had alleged, 27 R. at 1676, the military judge found SGT Bergdahl

guilty in accordance with his plea and not guilty as to the remainder of the period.

27 R. at l 706. After exceptions and substitutions, the specification of Charge I read:

In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States

Army, did, on or about 30 June 2009, with the intent to shirk important
service and avoid hazardous duty, namely: a convoy from Observation
Post Mest to Forward Operating Base Sharana, Paktika Province, Af-
ghanistan; and guard duty at Observation Post Mest, Paktika Province,
Afghanistan; quit his place of duty, to wit: Observation Post Mest, lo-
cated in Paktika Province, Afghanistan, and did remain so absent in de-
sertion until on or about 30 June 2009.

27 R. at 1631. SGT Bergdahl pleaded guilty to Charge II and its specification as

refrained by the military judge. 27 R . at 163 J; AE 49 at 4-5 (1 11 ).

2
 On November 3, 2017, the military judge sentenced SGT BergdabJ to a dis-

honorable discharge, reduction to Private (E-1), and forfeiture of $1,000 pay per

month for 10 months. 30 R. at 2704. On June 4, 2018 the convening authority ap-

proved the sentence.

On July 16, 2019, the Army Court affirmed, United States v. Bergdahl,

ARMY 20170582, 2019 WL 3210171 (A. Ct. Crim. App. July 16, 2019), over a

partial dissent by Judge Ewing. Focusing on a tweet in which President Trwnp called

the sentence "a complete and total disgrace to our Country and to our Military,"

Judge Ewing concluded that "the timing, specificity, and unequivocal nature" of die

tweet make it impossible" to say the government carried its burden of proving be-

yond a reasonable doubt that an objective, disinterested observer would not "harbor

a significant doubt about the faimess of the proceedings." Slip op. at 28.

The Cou11 denied extraordinary writ relief as to some of the UCI issues the

case raises in Bergdahl v. Nance, 76 M.J. 342 (C.A.A.F. 2016) (Order) (Sen.
1
McCain), and In re Rergdahl, 76 M.J. 38 (C.A.A.F. 2016) (Order) (Pres. Trump).

1
The denial of an extraordinary writ is not res judicata when the same issue is raised
on regular appellate review. United Stales v. Dean, 752 F.2d 535, 541 (11th Cir.
1985); United States v. Hubbard, 650 F.2d 293,310 n.6 (D.C. Cir. 1980); see Topps
v. SI.ate, 865 So.2d 1253 (Fla. 2004) (per curiam); United States v. Paige, 6 M.J. 529,
531 & n .4 (A. C.M.R. 1978). The President's "disgrace" and "traitor" tweets, referred
to in Point I infra, have not previously been before the Court.

3
 Statement of Facts

Sergeant Bergdahl enlisted in the Coast Guard in 2006. He was given an

entry level separation and the Coast Guard cautioned that he should not be reen-

listed in any branch without a psychological evaluation. AE 66, 45 R. at £0688.

The Army enJisted him l:\vo years later without such an evaluation. Def Ex. D.

(An in-depth psychological examination conducted after his release from enemy

captivity found him to have been suffering from schizotypal personality disorder

and PTSD at the time he left his post. 30 R. at 2462-63, 2471, 2481 .)

In May 2009 SGT Bergdahl joined his platoon at FOB Sharana, Paktika

Province. 31 R. at E0060. The platoon was sent to establish a checkpoint at OP

Mest. 3 J R. at E0083 . Around midnight on June 29, 2009, SGT Bcrgdahl left

without authority, 27 R. at 1659-60, to hike overland to Sharana, 31 R. at E0122-

23 where he hoped to bring his unit' s leadershjp issues (which he believed to be

severe and life-threatening) to the attention of a general officer. P Ex. 9, 31 R. at

E0\21 -24, 27 R. at 1658-60; slip op. at 2. He was promptly abducted by the

Haqqani Network, a Taliban affiliate. 27 R . at 1650. He attempted to escape but

was quickly tackled and beaten. 29 R. at 2165. Later, at another location, he es-

caped during a change in his captors' guard shift, but was again recaptured. 29 R.

at 2171-73. The conditions of his captivity grew worse. Suffering from dysentery,

infected wounds, and malnutrition, beaten with copper electrical conduit, burned,

4
chained to a metal bed frame, he was threatened with beheading if he again tried

to escape. 29 R.. at 2173-77 . Despite this, he escaped again. He attempted to reach

the Pakistani border, evading recapture for eight days before succumbing to mal-

nutrition and other injuries. 29 R. at 2202-05. His captors locked him in a cage for

four years. 29 R. at 2209-10, 2346, 2351 . He was subjected to "torture ... abuse

. . . extreme neglect." 29 R. at 2274-76. On May 31, 2014, he was exchanged for

five former members of the Taliban government whom the United States had been

detait1ing at Guantanamo Bay.

Sergeant Bergdal1l came home to a political firestorm . Sen. John McCain

announced that he was displeased with both the decision to search for SGT Bcrg-

dahl (whom he called a deserter) and the prisoner swap. D APP 23 at 47 . He said

the Senate Armed Services Committee (SASC) would examine the case "as soon

as the final decision is rendered." D APP 27 at 5. Asked to comment on the pre-

liminary hearing officer's recommendation that SGT Bergdahl not face confine-

ment or a punitive discharge, he said: "If it comes out that [SGT Bergdahl] has no

punishment, we're going to have a hearing in [SASC] . ... " D APP 27 at 6-7.

At the preliminary hearing, the general officer who bad conducted the AR

15-6 investigation testified that confinement "would be inappropriate." D APP 27

at 5 (quoting Art. 32 Tr. 310). On December 22, 2015, the convening authority

5
referred the charges to a general court-martial, contrary to the preliminary hearing

officer's recommendation for a non-BCD special court-martial and no jail time.

"Troubling" as Sen. McCain's conduct was in the military judge's view,

AE 19 at 8, worse was to come. Campaigning for President, Donald J. Trump

ruthlessly attacked SGT Bergdahl, repeatedly whipping up rally audiences with

calls for his execution. A video collecting those attacks is in the record. See D Ex.

p_2

On January 20, 2017, Mr. Trump became President. Rather than disavowing

his statements about SGT Bergdal1l, he ratified them on October 16, 2017. Days

later, he sent the "disgrace" tweet. On April 26, 2019, while the case was pending

below, he sent another tweet (the "traitor" tweet) that concerned Otto Warmbier-an

American citizen who had died following release from captivity in North Korea- but

gratuitously referred to SGT Bergdahl as "traitor Bergdahl."

Reasons for Granting Review

introduction

There is good cause to review this "unusual case, [which is] perhaps m1ique

in all the annals of military justice." AE 36 at 8 (1 15). Political actors interfered or

2
lbe Anny Court sought to play down this evidence by noting that the 28-minute
video was distilled from 46 hours of speeches. Slip op. at 4 n.5. That is like saying
the 1906 and 1989 San Francisco earthquakes were not severe because most of the
lime there are no earthquakes in the Bay Area.

6
attempted to interfere every step of the way. As the Anny Court's split decision

reflects, the case raises important questions concerning both the standards of proof

and the remedies for apparent UCL Left undisturbed, the decision will encourage

further exploitation and abuse of the military justice system, and those who are sub-

ject to it, for political gain. Indeed, even in the short time since the Anny Court acted,

that has happened. See note 9 infra. The exploitation of military justice as a political

plaything-in ways previously unimaginable-is at risk of becoming a "new nor-

mal." This case is Exhibit A.

Apart from the UCI- and all but ignored by the Anny Court-the military

judge's erroneous disposition of two issues raised by the charges and specifications

presents questions of broad significance to the administration of military justice.

The first concerns 1he application of the specific intent element of short desertion in

a way that improperly renders that offense indistinguishable from simple AWOL.

The second was to pennit the government to bring two charges for precisely the

same act.

A third merits issue (this one treated at length by the Anny Court, albeit erro-

neously) involves the proper construction of Article 99(3)'s intentional misconduct

clause in the context of a "bespoke" specification. The Army Court misconstrned

the statute, and in so doing raised a substantial constitutional question of fair notice.

7
 These errors followed a remarkable decision to charge a returning long-term

POW whose conduct as a POW had been exemplary. That decision was forged under

a dark cloud of politically-driven UCL The UCI persisted and was never remedi-

ated.3

Argument

THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED

WITH PREJUDICE OR OTHER MEANINGFUL RELJEF GRANTED
BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE

The Anny Court's analysis of the UCI issues focused on the post-conviction

phase of the case, but the prosecution suffered from apparent UC! from its inception.

An infonned disinterested member of the public would have noted that (I) for SGT

Bergdahl, the military departed from its longstanding practice of not prosecuting

returning POWs except for offenses committed in captivity, see VERNON E. DAVIS,

THE LONG ROAD HOME: U.S. PRISONER OF WAR POLICY AND PLANNING IN SOUTH-

EAST ASIA I 54-55 (OSD 2000) (quoted in D APP 66 at 9); (2) he was charged not at

his home duty station in Texas but by a distant command with which he had no prior

connection; (3) the preliminary hearing officer's recommendation was rejected with-

out explanation; (4) a rare, bespoke "misbehavior" charge was brought; and (5) the

3
UCI is reviewed de novo, United States v. Barry, 78 M.J. 70, 77 (C.A.A.F. 2018),
as are the other issues of law. Unreasonable-multiplication issues are reviewed for
abuse of discretion. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 20-12).

8
two charged offenses alleged precisely the same act- crossing the wire at OP Mest

without authority on June 30, 2009. That member of the public would also be aware

that all of this occurred against the backdrop of a controversial detainee exchange

and a threat that if the Soldier liberated in that exchange were not punished, the

Army's senior management would have to answer for it in a SASC hearing.

A . Senator McCain's threat to hold a hearing if Sergeant Bergdahl

were not punished constituted apparent unlawful influence

Sergeant Bergdahl complained of apparent unlawful influence in connection

with Sen. McCain's threat to conduct a hearing if he were not ptmished. The military

judge refused to give Article 37, UCMJ, its plain meaning despite the fact that Sen.

McCain was a retired naval officer, AE 19 at 3, and hence subject to the Code. AE

19 at 6-7. Alten1atively, he rel ied on the fact that Sen. McCain lacked command

authority, insisting that he "simply has no authority over the military services or its

members." Id. at 7. 4 In his view, Sen. McCain was merely "an elected public official

who has one vote in one chamber of [C]ongress among 535 votes that may be cast

on any issue [a]ffecting the funding or regulation of the military." Id. That highly

unrealistic appraisal overlooked SASC's role in the confirmation of military officers

for promotion and special assignments.5

4
This Court thereafter held that a person who lacks the "mantle of command author-
ity" can exert unlawful influence. Barry, 78 M.J . at 76-77.
5
See also Tom Vanden Brook, McCain outraged by Army waivers for selfmutila-
tion; He threatens to suspend Pentagon nominations, USA Today, Nov. 15, 20·17_

9
 The Army Court e-orrectly rejee-ted the military judge's ruling that Article 37,

UCMJ, did not apply to Sen. Me-Cain, slip op. at 9, but dismissed "the link between

the role of the SASC and issues that [he] may have had with other Anny officials

and policies [as] speculative at best." id. at 9 n.13. That was mistaken because the

record shows that tbe Anny was highly attenli veto him. See generally D APP 27 at

4; AE 12 at 20, 25-26. Given the low threshold UCT burden, see. e.g, United States

v. Boyce, 76 M.J. 242,249 (C.A.A.F. 2017), it was incumbent on the govenunent to

carry its responsive burden. It never did.

The Anny Court's determination that there was no evidene-e ofUCI, slip op.

at 9, was wide of the mark. It held that Sen. McCain's "ill-advised statements" did

not "rise to the level of an 'intolerable strain' on the military justice system" because

an informed observer would recognize them "for just what they were - political pos-

turing designed to embarrass a political opponent (President Obama) and gain some

political advantage." Slip op. at 9-10. Not only was there no evidence to support this

assertion, there was evidence that infonned disinterested observers viewed Sen.

McCain' s meddling as serious and not mere politics. D APP 41. Indeed, both the

Sen. McCain's threat to withhold confinnations in response to a revised Army policy

on self-mutilation had the desired effect almost immediately. See Tom Vanden
Brook, Army says USA TODAY story forced it to drop plans for waivers for high-
risk recruits, USA Today, Nov. 15, 2017. Not one to be trifled with, he stalled all
confirmations until he got infonnation he was seeking about naval mishaps and the
tragic Niger ambush. See Kyle Jahner, Sens. Prod Pentagon Legal Picks on North
Korea. Sex Assault, Law 360, Nov. 14, 2017 .

IO
Anny and his own staff recognized that his conduct sounded in UCI and wisely (but

ineffectually) tried to get him to stop. See D APP 41.

As we pointed out in an earlier submission, if public officials' words no longer

have consequences because everyone dismisses them as mere "political posturing,"

it will be a sad day for due process of law. That day has not come, c.f Shaughnes., y

v. United States ex rel. Mezei, 345 U.S. 206, 228 (1953) (Jackson, J., dissenting)

("No one can make me believe that we are that far gone"), and the Court should not

help bring it about by embracing an it's-just-politics approach to a matter that goes

to the heart of an individual's right to fair treatment as well as the good name of the

military j ustice system. Petition for a Writ of Mandamus at 24 n. l 0, in re Bergdahl,

supra.

The Army Court erred in failing to find that Sen. McCain's conduct consti-

tuted apparent UCI and to fashion a remedy.

B . The government did not meet its high burden ofproof as 10 the
pre-inaugural statements that President Trump ratified after tak-
ing office

A President enjoys sweeping powers and a unique constitutional status as

commander in chief. U.S. Const. art. Il, § 2, cl. I . He is "the ultimate military au-

thority." United States v. Gleason, 78 M.J. 473,476 (C.A.A.F. 2019). When he ex-
presses strong views with respect to the guilt and punishment of a specific Soldier

facing a court-martial before the legal process has run its course, Fifth Amendment

l1
due process (in which this Court's UC! jurisprudence "is rooted," slip op. at 25 n.32

(Ewing, J , dissenting)) is implicated. So too is public confidence in the military

justice system. The President's unique status must be taken into account when con-

sidering whether a disinterested observer,fally infi>rmed ofall the facts and circum-

stances, would harbor a significant doubt as to the fairness of the proceedings.

United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013).

The military judge announced the findings at 1:00 p.m. on October 16, 2017.

27 R. at 1676. Within an hour, see AE 65 at 2, President Trump appeared in the Rose

Garden for a press conference. When a reporter asked, "Do you believe that your

comments in any way affected Bowe Bergdahl's ability to receive a fair trial? And

can you respond to his attorney's claims that-," he responded:

Well, I can 't comment on Bowe Bcrgdahl because he's-as you know,
they're- I guess he's doing something today, as we know. And he's
also- they're setting up sentencing, so I'm not going to comment on
him . But I think people have heard my comments in the past

Mr. Tnunp's pre-inaugural disparaging comments thus became post-foaugural, i.e.,

presiden/ial. The military judge refused to dismiss the charges based on this ratifi-

cation because, in his opinion, the government had proved that, while there was UCI,

there was no intolerable strain on the military justice system . He said, though, that

he would take the President's comments into account as mitigation evidence. The

Army Court correctly noted that whatever adjustment he made would not have

12
"cure[d] the taint of UCI" had he found UCL Slip op. at 13 n. 19. It follows that, as

there was UCT at that instant, SGT Bergdahl should have been afforded relief for it.

The Anny Court claimed the ratified comments were remote in time. Slip op.

at ·12; id. at 28 n.36 (Ewing, J., dissenting in part). This was not a valid basis for its

ruling since the government had adduced no evidence that his disparaging campaign-

trail comments had somehow "burned off.''° Moreover, President Trump had not

only breathed new life into them by ratifying them in the Rose Garden a few days

before sentencing, but his own remark-"J think people have heard my comments

in the past"-is evidence that they had retained their potency.

The Army Court also relied on the assurances of the military judge, staffjudge

advocate and convening authority that they would not be affected by President

Trump's statements. Such assurances, coming from military subordinates, arc hardly

proof beyond a reasonable doubt as to what a disinterested member of the public

would make of the circwnstances.7 Cf slip op. at 28 (Ewing, J., dissenting in part).

6
The decision below is unfair. On the one hand, the Army Court plainly agreed with
the military judge's view that SGT Bergdahl's Inauguration Day motion was prem-
ature, slip op. at 11 o.15, but on the other, it found that the vilification of which he
complained had bun1ed off when he renewed that motion following the Rose Garden
incident. id. at 12; see also id. at 16. This "heads I win, tails you lose" whipsaw
renders the prohibition on UCT illusory.
7
ln support of this conclusion, the Army Court quoted the military judge's reference
to a generic statement tbe White House issued at the behest of trial counsel (D App
95 at 11-12) following the Rose Garden episode as proof that President Tn1mp "does
not expect any certain sentence in this case." Slip op. at 12 n.17. Reliance on that
statement was unwarranted because the "disgrace" tweet a few days later proved it

13
A disinterested observer would, like Judge Wolfe in Hergdahl v. Nance, ARMY

MISC 20170114 (A. Ct. Crim. App. Mar. 13, 2017) (Order) (Wolfe, J., concurring),

be aware of the "structural differences in the composition of' the Army Court "as

compared with" this Court, a not-so-veiled reference to the fact that the judges of

that court are the President's military subordinates and for that reason less likely to

"take on City Hall."

Finally, the Army Court's effort to distinguish the case from Boyce and Bany

because it was SGT Bergdahl who brought President Trump's ratification of his ear-

lier comments to the trial court's attention, slip op. at 12- l 3, again misses the mark.

What matters is not how the military judge (or for that matter, the judges of the Army

Court itself, see id. at 18) became aware of the presidential tweet, but rather, how

the matter would appear to a member of the public who was aware tlrnt uniformed

judges were to resolve substantial apparent UCI issues involving the President him-

self, while he, their ultimate superior, continued to weigh in publicly on the matter.

to be a sham . The Army Court implied that SGT Bergdahl's claim was weakened
because he declined an offer by the military judge to require downstream actors to
read the statement. Id. at n.18. Far from simply "demurr[ing]," SGT Bergdahl de-
clined that offer because (a) the White House's generic statement was without value
(a submission President Trump personally validated a scant two weeks later); (b) a
military judge cannot issue orders to the Army Court; and (c) the statement would
be in the record anyway, 30 R. at 2705, as it is.GAPP 103 at 12, 37 R. at 310. The
Anny Court also en·ed in relying on the "absen(ce] of any fonnal request for clem-
ency in the form of sentence reduction," slip op. at 17, since SGT Bergdahl's post-
trial submissions expressly cited numerous substantial grounds for the exercise of
clemency.

14
The Army Court's implication that SGT Bergdahl is responsible for the fact that the

courts below even became aware of the UC! is the kind of"Catcb-22" Joseph Heller

would have admired. See JOSEPH HELLER, CATCH-22 ( 196 I).

C. The "dis6rrace" and "traitor" tweets and the other UC] warrant
dismissal with prejudice or oLher meaningful relief

The "disgrace" tweet, an official statement, Knight First Amend. Insl. at Co-

lumbia Univ v. Trump, 925 F .3d 226, 234-36 (2d Cir. 2019), violated R.C.M.

104(a)( I) because the President is a convening authority. Art. 22(a)(1 ), UCMJ. The

majority recognized that it placed a strrun on the military justice system, but opined

that the system '\s not so fragile that this comment caused an intolerable strain,"

even while claiming to be "mindful l11at the President's words could have a chilling

effect on this military judge or on similarly situated appellants." Slip op. at 17. As

for the "traitor" tweet, the majority observed that it was "not a per se violation of

R.C.M. 104(a)(I )" and found "no nexus between [it] and tl1e appellate process." Id.

at 17-18. As a result, it found that SGT Bergdahl had not carried his low threshold

burden. It also concluded that "the cumulative effect could not reasonably be per-

ceived by a disinterested member of the public as improper command influence or

otherwise indicative of at1 llllfair proceeding." id. at 18-19.

Because it excluded both Sen. McCain's threat and the President's "traitor"

tweet, slip op. at 18, the Anny Court's cumulative-UC! analysis was prejudicially

incomplete. The low threshold burden SGT Bergdahl had to meet with respect to

15
that tweet was plainly satisfied because the case was still pending before the Army

Court, a body that enjoys sweeping powers and is composed entirely of President

Trump's military subordinates.

Whether or not the Army Court adopted too narrow a focus when considering

cumulative UC!, its conclusions make a mockery of this Court's UCf jurispmdence

and, worse yet, do so in a case involving the Nation's single most powerful public

official. We cannot agree that the military justice system is powerless in the face of

such facts. Nor should this Court accept the Army Comt's claim that the entire se-

quence of events not only would not, but "could not" (emphasis added) trouble a

disinterested fully-informed observer.8

Several principles can be gleaned from the Court's jurisprudence on remedies.

Relief must be "meaningful" and should "eradicate" the UCL Barry, 78 M.J. at 79.

lt should reflect the totality of the circumstances. Boyce, 76 M.J. at 249, 252. Relief

is not per se precluded by the accused's offense. Bany (sexual assault); United

States v. Riesbeck, 77 M.J. 154 (C.A.A.F. 2018) (forcible rape). The relief should be

proportional to the particular violation. Cf United States v. Zarbatany, 70 M.J. 169

(C.A.A.F. 2011) (Art. 13, UCMJ credit). lt is pertinent if the UCI is "egregious,"

8
Equally remarkable is the Army Court's assertion that when R.C.M. 104(a)(l) is
violated, only the military judge has something to complain about. Slip op. at 17
n.25 . UC! is the "mortal enemy of military justice," e.g., Boyce, 76 M.J. at 246, not
only of military judges.

16
Boyce, 76 M.J. at 252, or had the capacity to do "catac;trophic mischief." United

States v. Chikaka, No. 201400251, 2018 WL 6052748 at *4 (N-M. Ct. Crim. App.

Nov. I 5, 2018), set aside on other grounds, 2019 WL 2070678 (C.A.A.F. Apr. 2,

2019) (mem .).

While not dispositive, curative measures are afforded considerable weight.

Boyce, 76 MJ. at 248 n.5; Chikaka, 2018 WL 6052748 at *6. Here there were none.

Neither Sen. McCain nor President Tn1mp ever retracted the statements in question,

much less acknowledged their error. The \\lhite House Press Office statement never

even mentioned SGT Bergdahl and in any event was promptly disregarded by t11e

President himself. Neither the Secretary of Defense, the Secretary of the Army nor

The Judge Advocate General of the Army ever undertook any curative meastu-es.

The seniority of the actor and whether he or she is still in office should cer-

tainly be factors. Similarly, while the knowledge or intent of the actor are not re-

quired for a finding of apparent UCI, Boyce, 76 M.J. at 251 ; United States v. Simp-

son, 58 M.J. 368,374 (C.A.A.F. 2003), they would also constitute matter in aggra-

vation when fashioning a remedy. Here there is conclusive evidence of President

Trwnp's personal malevolence toward SGT Bergdahl.

UCI relief should not produce a windfall, Boyce, 76 M.J. at 253 11. l 0, but that

consideration does not militate against decisive relief here. First, in apparent UC!

17
cases, the primary interest being vindicated is the public interest in fostering confi-

dence in the military justice system. Second, the relief SGT Bergdahl seeks- dis-

missal with pr~judice- cannot be considered a windfall. He was held captive for

five years under horrendous conditions, and then, through no fault of his ov.rn, the

legal proceedings have lasted another five years, during all of which his life has been

on hold. He is highly likely to continue to be an object of hostility for the rest of his

life because of President Trump's lengtl1y public vilification of him, including

branding him a traitor as recently as this April-a bell cannot be unrung. Finally, the

fact tl1at he was even prosecuted ran counter to Department of Defense policy dating

back half a century that returning POWs will only be prosecuted for offenses com-

mitted in captivity, and, as Judge Ewing pointed out, the adjudged sentence itself

was no windfall. Slip op. at 28-29. Because only the strongest of UCJ remedies is

warranted, couccn1 over windfall should be no obstacle to the strongest relief.

Meaningful relief that is proportionate to the UCT and sufficient to deter pol-

iticians from engaging in similar conduct in the future is not only warranted but

critical to ensure public confidence in the military justice system. The relief should

reflect the fact that President Trnmp holds the Nation 's highest office and has shown

himself to be unrepentant, impervious to admonitions from a sitting military judge,

indifferent to his own Press Office's "curative" statement, and entirely willing even

18
 9
now to meddle in the administration of justice under the UCMJ. The phrase heap-

plied when illegally criticizing the military judgc-"complete and total"- is an apt

yardstick for the appropriate, proportional relief. The charges should be dismissed

with prejudice. ' 0

9
President Trump personally intervened to release a Navy chief petty officer accused
of murder, among other things, from pretrial confinement. After the chief was ac-
quitted of all but one offense, the President tweeted that he was glad to have been
able to help. John Gage, Trump: 'Glad I could help' After Navy SliAL Gallagher
Found Not Guilty of War Crimes, Wash. Examiner, July 3, 2019. On July 30, 2019,
he intervened again by ordering the Secretary of the Navy and the Chief of Naval
Operations to revoke decorations that had been awarded to members of the prosecu-
tion team. Peter Baker, Tn,mp Tells Navy to Strip Medals From Prosecutors in War
Crimes Trial, N.Y. Times, Aug. l, 2019. "Other presidents have been dissatisfied
with military prosecutors, but experts could not recall another instance in recent
times when a commander in chief intervened so directly in a case like this." Id. Two
respected scholars of military justice have wan1ed that the President's "public dia-
tribe threatens the credibility of a system of justice that has helped maintain order
and discipline in our anned forces for centuries. Worse yet, it chips away at public
tn1st in the integrity oftbis system." Rachel E. YanLandingham & Geoffrey S. Com,
If We Want Troops to Follow Orders, We Should Trust Their Justice System, Wash.
Post, Aug. I, 2019.
'° Although the UCI issues are compelling and critical (and we have therefore placed
them first in this supplement), the Court should grant all of the assigned errors and
address the non-UCI issues first in order to be able to have a proper starting point
for fashioning UC! relief. Cf Chikaka. supra. The Court may also wish to focus on
the interaction among the non-UCI issues. Tbus, if relief is granted on UMC grounds
and Charge I is dismissed as the less serious of the two, the Court would have no
occasion to rule on Issue III. If relief is granted on Issues Ill or IV, it would have no
occasion to rnle on Issue n. Conversely, if the Court dismisses with prejudice for
UCI, it would have no occasion to rule on any of the other issues.

19
 TT

THE CHARGES WERE UNREASONABLY MULTIPLIED

In accordance with the fundamental principle of military justice that"[ w ]hat

is substantially one transaction should not be made the basis for an unreasonable

multiplication of charges [UMC] against one person," R.C.M. 307(c)(4 ), SGT Bcrg-

dahl moved to dismiss one of the charges for UMC for findings. D APP 94. The

military judge denied the motion from the bench, but stated that he found UMC for

sentencing purposes. He promised to set forth " more detailed" findings and conclu-

sions at a later date ifhe decided that was appropriate, 27 R. at ·1712, but never did.

His action was an abuse of discretion, and being entirely unexplained, is entitled to

reduced deference. United States v. r1esher, 73 M.J. 303, 311-12 (C.A.A.F. 2014);

Uni1ed Slates v. Hursey, 55 MJ. 34, 36 (C.A.A.F. 2001 ). The Army Court refused

without explanation to grant relief on this issue, slip op. at 12 n.1, even though the

specifications of both charges described a single, instantaneous act: leaving OP Mest

without authority on June 30, 2009. As the lesser of the two, Charge I and its speci-

fication should have been dismissed. R.C.M. 906(b)(l 2)(i).

Under Uniled ,",tales v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), SGT Bergdahl

was entitled to relief. The case is not, like Quiroz itself, about disparate acts on
different days that may constitute "substantially one transaction. " The charges

and specifications assert precisely the same single and instantaneous act. As to

20
the Article 85 charge, the government pointed to no act of " shirking" or "avoid-

ing" other than that departure, and as to the Article 99 charge, no act of either

misbehavior or endangerment other than that self-same departure.

As referred, the specification of Charge II cited several things as ''inten-

tional misconduct." When the defense challenged it, D APP 65, the military

judge undertook a salvage operation,jettisoning language he deemed inessential

or problematic. The surviving allegation was that SGT Bergdahl left OP Mest

alone and without authority. See AE 49 at 4-5 (~ 11 ); 26 R. at 1437-49. TI1e part

that referred to "wrongfully caus[ing] search and recove1y operations" does not state

an act-and certainly not a "distinctly separate criminal act," as Quiroz requires. The

surgery the military judge performed caused the specification of Charge l to align

perfectly- and thus impermissibly- with the specification of Charge IJ.

The multiplication of charges and specifications both misrepresents and ex-

aggerates any criminality. The essence of desertion is the intent to abandon duty.

Yet SGT Bergdahl sought to report to a post. Short desertion requires either the

" avoidance" of a hazard or the "shirking" of an important duty, while the essence

of his act was to unde11ake what he genuinely regarded as an important mission

that placed himself in great peril. That he would miss guard duty was a collateral
consequence, not the objective of the dangerous trek that was to end with report-

ing in at FOB Sharana. "Desertion" profoundly misrepresented the essence of his

21
conduct. So did " Misbehavior." SGT Bergdah.l' s conduct bore no resemblance

to running away, playing dead, and the like. However misguided, his motives

too were the antithesis of cowardice, selfishness, or venality.

Charging both desertion and misbehavior was also an exaggeration. Short de-

sertion involves a conscious purpose to shirk or avoid one's duty. SGT Bergdahl's

absence from guard duty was a collateral consequence of his conscious purpose to

travel to another base within the command. Misbehavior charges quintessentially in-

volve cowardice, whereas this case involves a form of (misplaced) bravery.

The fifth Quiroz factor is also satisfied: political meddling; the unexplained

referral from SGT Bergdahl's normal unit at USARNORTH to Army Headquar-

ters and then to FORSCOM; the dedication of resources out of all proportion to

the charges (50 members of the prosecution team signed protective order acknowl-

edgements); the mysterious appearance of an obscure offense never suggested by

the AR 15-6 investigating officer; and the never-explained decision to ignore the

preliminary hearing officer's recommendation for a no-punitive-discharge/no-

confincment disposition.

The Army Court erred in its perfunctory treatment of this issue, which

turns on one of this Court's leading cases. Review is warranted.

22
 IT!

THE MlLITARY JUDGE MlSAPPLJED THE

SPECIFIC INTENT ELEMENT OF SHORT DESERTION

The Anny Court found that SGT Bergdahl's "plan was to walk to his higher

headquarters at Forward Operating Base (FOB) Sharana to complain about the treat-

ment of his platoon." Slip op. at 2. 11 That finding is fatal to Charge I and its specifi-

cation given the specific intent element of short desertion. MCM ~ 9.b.(2)(b). Be-

cause SGT Bergdahl's plea was based on the military judge's erroneous understand-

ing of that element, there is a substantial basis for finding the plea improvident.

The defense proposed this instruction on specific intent:

To convict SGT Bergdahl of desertion (Charge I), the prosecution must

prove beyond a reasonable doubt that his specific intent was to shirk
important service ,md avoid ha:tardous duty. It is not sufficient for the
prosecution simply to prove that he left his place of duty knowing that
remaining there would require him to participate in combat operations,
guard duty, or combat patrol duties, as alleged in the specification. Ra-
ther, you must tind that he specifically intended to avoid hazardous duty
and shirk important service.
If you find that SGT Bergdahl left OP Mest without authority, you must
consider any and all evidence relating to his specific intent in doing so.
By "speci fie intent" I mean his actual, subjective purpose in acting as
he did, regardless of whether that purpose was naYve or unrealistic. SGT
Bergdahl 's mental processes are relevant to that detennination . In
weighing the evidence of those mental processes, you should consider
whether he believed circumstances in the unit were such that higher
echelons should be made aware of them so corrective action could be
taken. Again, whether such a belief was naive or unrealistic is not the
question. Rather, the question is whether the prosecution has proved,
11
The record also reveals that SGT Bergdahl ' s intent in repeatedly attempting to
escape from captivity was to retum to military control. 27 R. at 1656.

23
 beyond a reasonable doubt, that SGT Bergdahl's subjective intent was
to avoid hazardous duty and shirk important service, or something else.
Evidence of different intents- that is, intents other than to avoid hazard-
ous duty and shirk important service- can raise a reasonable doubt as to
whether he had the specific intent that is legally required tor desertion.
You must therefore take into account any and all evidence that would
tend to reveal SGT Bcrgdahl 's subjective intent in acting as he did.

D APP 86 at 1-2. The military judge heard from the parties, 26 R. at 1428-31, but

SGT Bergdahl elected a bench trial before the military judge provided the parties

with the instructions he would give. When the question of specific intent came up

during the Care inquiry, see United Stales v. Care, 18 C.M.A. 535, 40 C.M.R. 247

( 1969), it became clear that he did not agree with the position espoused in the defense

instruction:

MJ: But intent is a different thing [from motive]. Did you specifically
intend to shirk this important seivice or avoid this hazardous duty as
I've define those terms-or- and avoid this hazardous duty as I ' ve
defined those terms to you?
ACC: Yes, sir. It was not my primary intention; however, I did intend
to miss my guard duty and the possible convoy back to Sharana in or-
der to carry out my main intention.
MJ: And you knew those-you had the duty and the convoy was prob-
ably going to occur?
ACC: Yes, sir.
MJ: And when you left, you knew by leaving you would not make your
guard duty and you would not make the convoy?
ACC: Yes, sir.
MJ: So does that mean you intended to miss tl,ose two things?
A.CC: Yes, sir. I wouldn't be there.
MJ: I' m sorry?

24
ACC: Yes, sir. r would already be at FOB Sharaoa, and I wouldn't be
there [at OP Mest]. So I knew that I wouldn't be there for the guard
duty or the convoy back to FOB Sbarana.
MJ: Okay. You've referenced this sort of vaguely; but let's talk about
how you fom1ulated this intent to miss these t\lvo events, your guard
duty and the convoy. Explain to me how that first came in[to] your
mind that you would miss those things- that you were going to miss
those things?
ACC: Can I have a moment, sir?
MJ: Sure
[Pause.]
ACC: Sir, that night when I decided to act upon my plan to walk to
FOB Sharana-run to FOB Sharana and report critical problems that I
believed at the time were in my chain of command-it was that night
that I knew I would not be there, that l would be missing my guard
duty the next day and the convoy back to FOB Sharana.
MJ: And knowing that, l mean, did you decide that what you needed
to do was more important in your mind at the time than being at your
guard duty or participating in the convoy?
ACC: Yes, sir. For the many factors that I saw in front of me, we had-
I was currently on the tn1ck that- its sector of fire we were told we
were not allowed to fire into because it was facing a village. And-
[Pause.]
ADC: Your Honor, if I may, I believe the last question that was asked
was: In Sergeant Bergdabl's mind, did he believe it was more im-
portant to go to FOB Sharana than to conduct the-
[The military judge indicated a negative response.]
ADC: No, okay-I apologize, Your Honor.
MJ: No. Did he believe that leaving for whatever reasons he had was
more important than being present for his guard duty and for the con-
voy? Did you decide that? Did you decide, "Look, I know I've got this
guard duty. I know this convoy is coming up, but I don't care about
that because what I need to do, for whatever reason, is going to FOB
Sharana is more important, so I'm going to miss those events."
ACC: Yes, sir. That is correct.

25
 MJ: Is that- and I don't want to put words in your mouth. I'm just
trying to explain-what I'm trying to understand from you, the deci-
sion point, the choice that you made in your mind.
ACC: Yes, sir.
MJ: Was that the choice?
ACC: Yes, Sir. Just one moment, sir.
[Pause.)
ACC: Yes, sir. I knew that it was required of me to be at those duties.

27 R. 1657-60.

Based on the foregoing colloquy, the military judge accepted SGT Bergdahl ' s

plea to short desertion. 27 R. at 1676. This was error. It was not sufficient that he be

aware that avoidance or shirking was a necessary consequence of his intended act-

his "primary intention," 27 R . at 1657-ofmaking his way to FOB Sharana.

Article 8S(a)(2) "does not prohibit absence without leave from a unit engaged

in hazardous duty; rather it prohibits absence without leave with an intent to avoid

ha7..ardous duty." United States v. Gonzalez, 42 M.J. 469,474 (C.A.A.F. 1995). Gon-

zalez's citation to United States v. Apple, 2 C.M.A. 592, 10 C.M .R. 90 (1953), shows

that "intent" means "objective" rather than mere knowledge. PV2 Apple left a for-

ward post with the claimed objective of reporting to a post in the rear in order to

correct an error in his service record. Like SGT Bergdahl, he knew that by doing so

he would be absent from his duty station. But that absence was a collateral conse-

quence, not the objective: "Although [PV2 Apple] may infacl have avoided [duty],

26
his object instead was to secure clarification of his confused rotation point situation."

Id. at 593-94, 10 C.M.R. at 91 -92 (emphasis added).

United .'>'tales v. Huet- Vaughn, 43 M.J. 105 (C.A.A.F. 1995), concerned Dr.

Huet-Vaughu's psychological motivation, not her physical objective. At issue was

whether what motivated her Q1er political view about the legality of Operation Desert

Storm) was relevant to a charge of desertion. The Court held that it was not, but there

was no dispute that her that objective (and therefore her specific intent) was to fail

to deploy. There is no parallel here. SGT Bergdahl was not motivated to thwart the

war effort in Afghanistan. Quite the opposite; as summarized by trial counsel, the

evidence showed that he wanted to report problems with his chain of command and

get more aggressive with the enemy. 30 R. at 2657-58. The government correctly

asserted that his objective was to reach Sharana and report to a general officer con-

cerning what he thought was a danger to his platoon-mates. GAPP 80 at 6; G APP

81 at 11 . Accepting SGT Bergdahl's plea effectively read the word " specific" out of

the phrase "specific intent" and renders short desertion indistinguishable from

AWOL

Because the Care inquiry rested on an erroneous understanding of that ele-

ment, the plea was improvident and the Army Court should have set aside the find-

ings predicated on it.

27
 TV
THE MISBEHAVIOR CHARGE DOES NOT STATE AN OFFENSE

Charge ll and its specification do not state an offense under Article 99(3)'s

intentional misconduct clause because the pleaded acts are not independently crim-

inal. The Army Court' s contrary holding, slip op. at 20-22, is subject to de novo

review. United States v. Sch/off; 74 M.J. 312,313 (C.A.A.F. 2015).

Sergeant Bergdahl acknowledged during the Care inquiry that his actions

"constituted misconduct." 27 R. at 1665; see also 27 R. at 2670. The military judge

did not explain, however, that misconduct had to violate some other punitive article

in order to come ~~thin the intentional misconduct clause. Because his interpreta-

tion, seconded by tJ1e Army Court, was incorrect, the plea to Charge 11 and its spec-

ification and the related findings must be set aside and the charge and specification

dismissed for failure to state an offense.

Article 99(3) criminalizes "disobedience, neglect or intentional misconduct"

before the enemy that endangers a "command, unit, place, or military property." To

constitute intentional misconduct, an act or omission must itself be a criminal of-

fense. TI1e leading case is United States v. Carey, 4 C.M.A. 112, 15 C.M.R. 112

(1954), involving a tank commander who was drunk on duty in combat in Korea.

The Court explained that Article 99 had been enacted to provide clear standards for

criminal conduct:

28
 it is evident that the guides thus fixed for determining guilt or innocence
could be known only to one thoroughly acquainted with the decisions
of military tribunals defining from time to time the standard of behavior
before the enemy. Recognizing that this was an unsatisfactory method
of determining the elements of a capital offense, Congress eliminated
from the Uniform Code of Military Justice the general term "misbe-
haves himself." ... in Article 99 of the Code, supra, the acts constitut-
ing misbehavior before the enemy are set out in eight categories. .. .
(T]his A.tticle seeks to particularize the conduct proscribed and to pro-
vide clear standards by which violations may be determined.

Id. at 115, 15 C.M .R. at 115. Analyzing the "intentional misconduct" clause, the

Court defined "misconduct" as "a transgression of some established and definite rule

of action" and "a violation of definite law," id. , and upheld the conviction because

the conduct at issue was independently criminal. Id. at 116, 15 C.M.R. at 116.

The two other punitive articles in which the term "misconduct" appears

clearly imply that punishable misconduct must be independently criminal. Thus, it

appears in the caption of Article I 05 (Misconduct as prisoner), which, according to

Article I 05(1 ), requires "act[ing] without proper authority in a manner contrary to

law, custom, or regulation." According lo its caption, Article 120c criminalizes

"Other sexual misconduct" and the body of the provision articulates what that en-

tails, including specific definitions. See Art. I 20c(d), UCMJ.

That only conduct that is independently criminal falls within Article 99(3) is

apparent from the Manual. Thus, the Manual uses the verb "commit" in describing

what a member of the anned forces must do to violate any of the statute's three

categories (disobedience, neglect and intentional misconduct). The tenn "commit"

29
connotes the perfonnance of a criminal act. Moreover, the A1anual employs the term

"misconduct" in a variety of contexts, the overwhelming majority of which similarly

imply that conduct must be independently criminal to qualify as "misconduct." Its

only reference to "intended misconduct"- a phrase that resonates with Article

99(3)'s "intentional misconduct"- refers to pillage and plunder. MCM ,i 23.f.(6).

The Manual explains that that phrase "means to seize or appropriate public or private

property unlawfully," J\4CM,i 23.c.(6)(b), which is an offense under Article 121,

UCMJ, or, depending on the circumstances, Article 122, UCMJ.

Atiicle 99(3)'s three clauses should be read harmoniously. The first two--

disobedience and neglect-describe offenses under the Code. Alts. 90(2), 91 (2),

92(1)-(2) (disobedience), 134(1) ("all disorders and neglects to the prejudice of good

order and discipline in the anned forces"); see United States v. Tucker, 76 M ..J. 257,

258 (C.A.A.F. 2017) (per curiam ). Under the noscitur a sociis canon, the third clause

should also be understood to require conduct that is independently criminal. F:.g,

United States v. Martinelli, 62 M.J. 52, 61 (C.A.A.F. 2005).

Before the military judge perfonned surgery on it, the specification of Charge

II alleged intentional misconduct in three respects: (I) that SGT Bergdahl left OP

Mest alone; (2) that he left without authority; and (3) that be wrongfully caused

search and recovery operations. These allegations- separated by semicolons-are

independent of one another. There is no implication that the third was the result of

30
the first two. Had that been the drafter' s intent, the semicolons would have been

commas and "thereby" (or words to that effect) would have appeared before "wrong-

fully ." Even if the three allegations are read together or in some combination, they

would still not plead an offense m1der the Code or any violation of a definite law.

Because only conduct that is otherwise criminal-such as the drunkenness referred

to in the only pertinent sample specification for Article 99(3), see MCM ~,i 73, 76-

can satisfy the intentional misconduct clause, none of the three allegations states an

offense.

The original specification's first allegation did not state any known military

or civilian criminal offense. It did not claim that it was disobedient for SGT Bcrgdahl

to leave OP Mest alone and nothing in it invoked the disobedience clause. The ex-

plicit reliance on the intentional misconduct clause precludes reliance on either of

the others. See AE 29, at 3 ,i 5; see also AE 49 at 6 ("[t]he accused does not have to

concern himself with defending against disobedience, neglect, or in the presence of

the enemy"). The second allegation- that he left without authority-similarly does

not state an offense: it pleads neither the first required AWOL element (his unit and

the unit at which he was required to be) nor the third (duration). MCM,r,r 1O.b.(3)(a),

(c). It does not even assert that he was required to be at some particular place. See

31
United States v. Kohlman, 21 C.M.R. 793, 794 (A .B.R. 1956), discussed in Wayne

Anderson, Unaulhorized Absences, ARMY LAW., June 1989, at 3, 7 & nn.45-47. 12

The avoidance canon, see Fosler, 70 M.J. at 232, requires that doubt as to

whether the intentional misconduct clause extends to conduct that is not inde-

pendently criminal be resolved in favor of the stricter view. Article 99(3) is de-

scended from a provision that was already a source of concern 200 years ago. See

Peter B. Work,Misbehavior Before the Enemy: A Reassessment, 17 AM. U. L. REV.

447, 449 & 11. 14 (1968) (footnotes omitted) (quoting EMANUEL SAMUEL, AN HIS-

TORICAL ACCOUNT OF THE BRITISH AR.MY, ANO OF THE LAW MILITARY 593 (1816)

("it is impossible to fonn any precise notion of the act or acts, which may be con-

ceived to constitute" the offense). "[T]he potential sources of fair notice," United

States v. Warner, 73 MJ. 1, 3-4 (C.A.A.F. 2013), remain unavailing. Neither the

Code nor the Manual usefully define "intentional misconduct."

Because the clause does not provide fair notice and invites arbitrary applica-

tion, see Work, supra, at 451-53, it "denies due process of law," Johnson v. United

12
Rea"oning from Articles 78 and 8 I, UCMJ, and the (obsolete) Article 134, UCMJ,
offenses of misprision and soliciting, the Anny Court held that the specification did
not need to plead every element of the independent crime. Slip op. at 22. But every
element must be pleaded in General Article cases. United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011 ). Fosler does not apply to inchoate offenses, United States v.
Norwood, 71 M.J. 204,206 (C.A.A.F 2012), but Article 99(3) is not one. Norwood
is therefore inapposite and the alternative holding that SGT Bergdahl 's conduct "was
indeed independently criminal," slip op. at 21, was incorrect.

32
States, 135 S. Ct. 2551, 2557 (2015), if it extends to conduct that is not otherwise

criminal.

Conclusion

The petition should be granted as to all issues.

Respectfully submitted.

CAAF Bar No. 13979 Major, JA

Feldesman Tucker Leifer Fidell LLP
1129 20th St., N.W. Ste. 400
Washi11gton, DC 20036
(202) 256-8675 (mobile)
efidell@feldesmantucker.com
CAAF Bar No. 35859
Defense Appellate Division
(202) 838-7894
matthew.d.bernstein9.mi1@mail.mil

CAAF Bar No. 26415

i2- CAAF Bar No. 37214
2000 H St., N.W.
Wa~hington, DC 20052
(202) 994-7089 CHRISTef.PHER L. MELENDEZ
ssaltz@law.gwu.edu CAAF Bar No. 37216

CAAF Bar No. 37215

Morgan, Lewis & Bockius LLP
One Federal St.
Boston, MA 02110- I 726
(617) 951-8775
sabin.willett@morganlewis.com

Appellate Defense Counsel

33
 Certificate of Compliance v.rith Rules 21 (b) and 37

This brief complies with the length liinitations prescribed in Rule 21 (b) be-

cause it contains 8740 words. lt also complies with the typeface and type style re-

quirements of Rule 37.

Certificate of Filing and Service

I certify that l served and filed the foregoing supplement to the petition for

g1·ant of review on August 4, 2019, by emailing copies thereof to the Clerk of the

Court and the Government Appellate Division.

Et(gene R. Fidell

34
APPENDIX

--- M.J. -···, 2019 WL3210171 (Army Ct.Crim.App.)
13
Only the Westlaw citation is cu1Tcntly available.
U.S. Army Court of Criminal Appeals.
UNITED STATES, Appellee
\ '.
Sergeant Robert B. BERGDAIIL, United States
Am1y, Appellant
ARMY 20 l 70582
16 July 2019
Hcadquartel'S, United States Anny Forces Command.
Ch1is1ophcr T. Fnxlrikoon and Jcffe1)" R. Nance, Military
Judges, Colonel Vanessa A. Derry, Staff Judge Advocate
For Appclhull. Eugene R. Fidell, Esquire (argued); Stephen
A. Sal\zburg, Esquire; Sean T. Bligh, ES<1uirc: Cluistophe,·
I,. Mdcnd,,,, Esquire; Caitlin M Sn}<focker. Esquire; r.
S~bm Willcll, lisquirc; Captain Matthew D. 13emstein, JA;
Eugene R. FtdeJI, Esquire (on brief, reply brief, and brief
on specified issues).
!'or Appellee: Major Cathannc M. Pan,ell. JA (argued):
Lieutenant Colonel Eric K. Stafford, .TA; Major Catharine
M. PamelJ, JA; Captain AJlison L. Rowley, .TA (on bricl);
Lieutenant Colonel E lie K. Stafford, JA; Licutwan1 Colo-
nel Wayne Willi,1ms, JA; Major Catharine M. Pamell, JA;
Captain Allison L. Rowley, JA (on b1ief on sp.>citied is-
sue:;).
Before SALAlllNO, SCHASf!ER< il'R, and FW!N(;• Ap-
pellate Military Judges
OPINION OF THE COURT
SCI l ASHER UER, Judge:
• 1 AppCIJ!lnt contends \ll}lawful command influence [UCJJ
was so endemic to appeUan1·s trial and the post-trial pro-
cessing lhnt appellant ,vas denied a fair trial. or fair post-
lJial processing, or the appearance thereof. Appellant also
alleges that the charge of misbehavior before the enemy
failed to state an offense as drafted.' We disa~e.
Although there was some evidence of unlawful command
influence adduced at trial m1d in the posH1ial process, the
!),OVemment met its burden to demonstrate that an objoctivc
disinterested ob,;crver would not harbor a significant doubt
as to the fairness or the proceedings.
A militm)' judge silting as a general coun-martial con-
victed appellant, consistent with his ple.1s, of one specifi-
cation of dcsc-rtion to shirk hazardous duty and one :::peci-
fication or misbehavior before the enemy, in violation of
Articles 85 and 99, Uoifonn Code of Military .Justice
(UCM.l), 10 l J S C §§ 885,899 (2012). The mi litary judge
sentenced ;ippcllant to a dishonorable discharge, reduction
10 the grade of E-1, and t.,rfciture of $ 1,000 per month for
ten montl1s. The convening authority approved the sen-
tence as adjudged.
BACKGROUN D
On 30 June 2009, appellant walked off Observalion Post
(OP) Mest in Paktika Province, Afghani;1an. I !is plan was
lo walk lo his higher headquarters at Forward Operating
Hase (FOB) Sharana to complain about the u·catment of his
plawon. At the time appcllanl left his platoon, he knew he
had guard duty and that he would likely be needed to serve
on a convoy rc1uming to FOB Sharnna. A few hours into
his walk, uppellant was captured by the Taliban.
When appellant missed his guard duty, his platoon began
searching fol' him. They rcpo11c-d his absence, and his duty
status wns quickly changed lo Doty Stah.1:; Whcrc:-1l>0ul;,.
Unknown (T)l JSTWtJN). The United States (U.S.) mili-
ttny, allies of lhc U. S., and other govemrncnHtl agencies
began a massive manhunl for ,1ppcllant. Over the course of
tl,e manhunt, lhousantls of soldiers, s::lilOl'S, airmen, ma-
rin.;s, and civili.an::; :;<.:ou!'ed Afghanistan, delaying and de-
foning other opcrntions and turning air, ground, and elec-
tronic a.%x,L, to the task of finding appellant Serviccmcm-
bcrs sufft.:re<l st.:1ious inj\U·ies while searchjog for appcl-
laot.1
*2 Though appellant attempted to c,;capc during the five
years he was held captive, his attempts were not ~1c.cessful.
In May 20 14, the U.S. govcmrncnt exchanged appellant for
five Taliban detainees who had been held al lhe U.S. de-
tention facility in Guantanamo l3ay, Cuba.
After his return to U.S. control, appcllanl went through a
reintegration program and was eventually assigned to duly
at f itlb. /\mly Headquarters in San Antonio, Texas. The
Commander, Fifth Anny, was told thatcou11-martialjuris-
<lictioo was retained at tbe four star level. The Director of
the Anny Staff appointed Major General (lvlG) Kenneth
Dahl to investigate the facts surrounding appellant's depar-
ture frurn OP Mesl.
l hc decision lO exchange dclaiJJocs for appcllanl was nol
without oont.rove1'Sy. Rolh during the investigation and ar-
tcr. various individuals made comments regarding 1his ex-
change to include the Chairman of the Senate AnnOO Ser-
vices C<>mmittee (SA SC), the late Senator John McCain.
McCain made statements such as: ...This decision
S(..'flalOr
to bring [appellant J home - and we applaud thaL he is
home-is ill-founded ... il i!'- a mi;:.tak~>and it is putting the
lives of American !)CTViccmen and woman Ls1c j at risk. And
that lo me is unacccpLablc." Senator McCain continue-cl to
make statements regardin!\ aµvellant includmg, "If ii
COD)eS Olll lhat rappelJanlJ has UO J)UJ)jshmcnt~we're going
to have a hearing in the Senate Am1ed Services Commit-
lc ~."
Upon conclus ion of the invcs1iga1ion, MG Dahl found that
appellant lcf1 OP Mesi with the intent to shirk important
service. The Director of the I\Jmy Staff forwarded the in-
vestigation to Lhc Commander~United Stnte::. Anny Forces
Command, General (OI iN) Robert Ahrams, to take aeiion.
Alkr charges were preferred, 1hc prcliminaJy hearing of-
ficer recommended the charges he rcf'crrcd lo a special
court-martial that could not adjudge a discharg,c. General
Abran)s referre.d the case to a gcncml court-martial.
During the trial.' the defense made three separate motions
regarding UCL The first rcfom.-d 10 the impael of Senator
McCain's statements. At the time of 1.hc motjon. Sena.tor
McCain was the Chuinnan of the SASC. After considering
the evidence, including the testimony of the convening au•
thonty. GEN Abrams. the military judge concluded the de-
fense did not meet its initial burden 10 show some evidence
of UCJ
After Prcsid1-,'t1l T1'1mp·s inaugur atioo. the defense.: subul.it-
tcd a second motion lo dismiss based on a claim of UCL In
it they raised the issue or comments made by Mr. Trump
while he was campaigning for the presidency. To support
their motion. the defense compiled a twcnty-<..:isht minute
video of statements by then candidalc Tnuup.$ These com-
ments included statements such a.5:
You Lell me who makes these deals?
It's like Sergeant Bcrgdahl, right'/
So we trade a dirty rotten traitor,
where five or maybe even six poople
were killed when he deserted and we
knew that U1ev were killed and we
knew he W.J.'l ; traitor. We trade for
five of lhc grcalt!st killers, the grcal·
est killers in Lhc Middle Ea,;1. The
five people that they wanted lhe
most. That";:,; our deal. So we gel a
traitor, and they gel five: peopl<; tl1at
are nght now, most of them, already
back on lbc battlcliclds trying to kill
everybody including us ....
•3 And:
So wi;: get tbis dirty, roucn, no-good traitor who 20 years
ago would've been shot, who 40 years ago 1hcy
would've done it within the first h<>ur, and who now
mighL not, maybe nothing's gomg to happen. Don ·1 for-
get, wilh llergdahl we lost at least live people and I
watched the par(..'t1L') on televjsion., 1·ve seen the parents,
I've met one of the parents, who're devastated, ruined,
destroyed. And they were killed going out to try and
bring him back, and they lost live people, probably six,
by the way. 13ut al least five people.' And we knew that
be was a traitor because we had a Colonel and a General
go and do the in1crviews hcforc we made lhe deal. And
cv(..-ryt~:>dy in the plaloon, everybody was saying he
walked off, he's a traitor. They said he·, a whack job but
we made ,his deal knowing. Now I would' ve said ·Oh
really? ue·s a lrtlitor? Pass! Let ·em have him. hc·s
done. ' frankly, frankly . J would take lhal soo of a bitch,
f'd fly hinl back, I'd drop him right over the top, I'm
telling you. I'm telling you.
On 24 feb111ary 20 17, the military judge issued a ruling
containing detailed findings of fact and conclusions of
law.' 1n his written ruling, the;; military judge concluded thal
the multitude of comm-.:nts were "troublitig. ... [T lhcy were
clearly made lo cnflame the passions or the voting popu·
lace against his political opponent and in Mr. T,·ump's fa-
vor." 11,e military judge found that Ll1ough the comments
were "disluthing and disnp~)()inting)) lhey did ''not rise to
the level of 'some evidence· required for the defense !o
ro~-ct iis initial burden. Apparent UC! must still be lJCI and
!he s1..,ucmcnts of a private citi:t.ct1, evc.n if nmning for Pres-
ident, cannot be unlawful command or intluence...
On 16 October 20 17 , appellmn pleaded guilty hy excep-
tions and substitutions to dese11ion and pleaded guilty to
misbehavior before the enemy. Al'tcr a thorough provi·
dcncy inqui,y, the miliiary judge found appcllan,·s plea
~owing_and voluntary and found him guilty . The sentcnc-
mg bcanng was scheduled for the following week. Al a
pre:,,; eonfcrenec, also on 16 October 201 7, the Com-
mander-in-Chief, President lmmp, sLaLed: "Well, I can' t
comroem on Bowe Bergdahl because be\ ·· as you know,
they're ·· l guess he's doing something today, a; we know.
And he's also - they're selling up ,;:,;em.:nci.ng, so l'm not
going to comment on him. But l th.ink people have heard
my comments in the past."
On 17 October 20 17, the defense made a third motion 10
dj:;.iniss for apparent UCI ba.">Cd on this commc.ot by Prcsi ·
dem Trump. On 19 October, the convening authority
signed an affidavil Slating any decision he bad taken lo dale
in appellant 's case, as well as any future decisions, would
not be impacted by an outside influence. The following
day , the Staff Judge l\dvocatc (SJA) signed an affidavit
also affim1ing h..:r und..:rstanding of her obligat ions under
the UCMJ. Also on 20 October 20 17, the White I louse Of-
fice of the Press Secretary for President Trump is.-ued a
"SLlitcrmmt Regarding Military Justice."' 1bc military
j udgc heard argument on the issue on 23 October 2() 17.
*4 This time the military judge concluded that the defense
iuet its burden to provide "S(1mc c,~dcnce" that UC! ex-
isted. 'l11c military judge furthc.:r conchtdcd 1hat the aovem•
menl failed 10 prow beyond a reasonable doubt rhal the
facts proffered by defense did nol c,isl or did not constitute
UC!. However, the military judge found thlll the govcm-
ment met its burden to prove beyond a rcawnablc doubt
that the UCl would not l>e an intolerable strain on the pub-
lic's perception o fche millbu)rjusLicc~-y~tcm.? The milit.arv
judge suited that he would consider the President's con{-
m<...--nL-; as mitigation evidence on sentencing.
As pmi o r appellant's s~-nlcncing ar(ZuIIlc'lll. he specifically
requested the judge sentence him lo a dishonorable dis-
charge. Pn C)r to rcquc,,iing the dishonorable discharge. the
milittuy judge discu:i:sed this request aod the consequences
thereof at length with counsel and with appellant. l\ppel-
lant made clear to the court thal he believed the appropriate
punishment was a dishonorable discharge.
The military j udge announced the sentence on 3 November
201 7. lmrncdiatcly following the announcement of the sen-
tence, President Trump posted a slal~mcnL on the ,;ocial
net\\·orking service Twiner that. "the dccisi<>n on Sergeant
Bcrgdabl is a complete and total disgrace to o ur Co unuy
and 10 our Military." The defense included U1e tweet as part
of their matters submitted under Rule for Courts-Martial
(R .C.M.J 11 05. The only relief requested in the R.C.M
1105 :mbmis:,;ion wa:;. that th...: SJA and convening a0Lho1ity
recu.;;c; them:selv~ aud send lhe maner to anotl1er convcn ..
ing aoLhorjty for action . The convening authority took ac-
(ioo on appcJJam 's case on 23 May 2018. and approved the
findings ~ln<l sentence as adjudged.
On 26 April 2019, President Trump posted on Twillcr, " No
money w:is paid to North Korea for Otto Wannbier. not
two Million Dollars, not anylhing cl:;c. 1bis is not the
Obama Administration that paid 1.8 Billion Dollnr,; for
four hoSlall,es, or gave five tcrroist fsicl hos1agcs plus, who
s,xm went back lo battle, for traitor Sgt. Bergdahl! "
LAW AND DISCUSSION
F~1. we will discuss appcllant' s claims of unlawful inJlu-
cncx:. Second, we will addrc,;s; appellant's asse,tion that
Charge H and its ::.p!eification foil to slale lhc offense of
misbehavior before the enemy.
A. Unlawful Command Influence
Appellant claims the military juc.lgc ern,d by failing to rind
and remedy apparent IJC!. While we review allegations of
lJCl de novo, we review the military j udge' s finding;; or
fact made in 1uliog on a UCI motion under a clearly c-m,-
.ncous standard. l"n iJ(•d States v. i 'illareaf. 52 M.J. 27, 30
(C.I\.!\ F. 1999). Where a " military judge made detailed
fin.dings of fact ... and these findings are clearly supported
by Ilic record," we adopt them in our analysis. Id. llerc the
milit.ary judg...:'s wriucn rulings on each of the dcfen~e mo-
tions to dismiss based on UCI were well docum...:ntcd and
supported by the evidence; therefore we adopt them for our
analysis.
•s Article 37(a), UCMJ, states in relevant part: " N<> p<,TSOn
subject to this chapter may attempt to coerce or ... inOucncc
the action of a court-martial or any 0U1er militruy tribunal
or any member lheroo r. in reaching the findings or sentence
in any case ...." " l\crual unlawful influence occur.; when
there is an impropt..'T manipulation of the criminal justice
process which negatively affocL, the fai r handling and/or
disposition of a ca:;c." I ·11iled S1<1tes ,,. Bany. 78 M .I. 70,
77 (C.A ./\.F 20 18) ( internal quotation marks and citation
orni11ed).
Even where there was no actual UCI , thGTC may be an ap-
1~u.fm)1,;~ o f UCL See Cui1,>,J s·1otrs v. J.,,wrs, <,3 M.J. 405,
41) (C.!\.l\.r. 2006); / fli ted S!a/i•., V. SI011ema11, ~7 M..I.
0
.1 5. 4~-43 (C.1\.1\.F. 2002). In analyzing a case with alle-
gations or apparent IJCI, the burden is initially on appellant
to show some evidence of { JCI. ot "'n)ore than 01ere allcga•
tion or speculation.>' c·,,;1,•d Statt'.-; \'. !JoJ,Y.·,·. 76 M.J. 242,
2,t<l (C.I\.A.F. 20 17) (citation omillcd). Tho govcmrne.n ,
then bears the burden of proving beyond a reasonable
doubt that the facts proffered by appelJant do nol exist or
that the facts do not amount to !JC!. Id Jr the govcmmc'Tll
cannot meet this burden then it must prove beyond a rea-
sonable doub1 that the intluencx: or command did not place
" an intolerable strain upon the public·s perception of the
military justic~ system because an o bjective, disinlercstcd
observer, fully informed or all tile facts and circumstances,
would harbor a significant doubt aboul the fairness of Uie
proceeding." f,L (citation and internal quotation mnrks
omitted); see also L'mted ,)'tale.,· v, So/y('r 72 M .I 4 1S• ..t.:?3
(C.!\.I\.F. 2013): lewi., ,(,3 M ..I. at 415. This is an objccu,·e
Lest. .'itoneman. 57 M.J. at 42.
Appellant raisod this issue three times during trial and
again during the post-trial process: (l) Senator McCain's
collllllents pre-trial (First Mol.ion to Dismiss for UCI); (2)
President Tmmp's comments while c,1mpaigning (Second
Motion lo Dismiss for lJCl); (3) President Trump's com-
ments as l'rcsidcnt (Third Motion to Dismiss fo r UC !); and
(4) UCT du,ing the post-trial process. We will look to each
in tum as well as consider the cumulallve effect of Senator
McCain's and the President's comments on appellant's
1ighl to a fair trial.
J. Did the comments made by Se11ator McCain create
tire appearance of UC!?
Appellant alleges the military judge erred in denying the
dcl'c-nsc motion to dismiss or limit the potential punishment
as a remedy for Senator McCain· s pre-trial comments re-
gardmg appeJJant, including threatening to convene a
SASC hearing ii' appcll,lfll was not purtished," Though we
do noLagree wilh some of the roiliLa.rJ judgc·s analysis~we
agree with the militm1• j udge ·s ultimate conclusion, Lhat
there was no apparent UCL
l',ior to issuing his ruling, the mihtary judge heard evi-
dence on the issue, including hc.ning Lhe testimony of GEN
Abrams. The military judge made detailed l'indings of fact,
to include that tliough GEN Abrams was aware of Senator
McCain· s comments. lhc comm en Ls did not afToel him anJ
he did not consider them in his decision t<> refer tlic
charges. With the exception of the finding ofl'act regarding
the date Lhat Senator McCain lx.'Came Chainnao of the
SASC,0 \VC fmd nolhin.g dct1rly crrooeous in the judge~s
findings of fact and thcrci'<.irc adopt them.
*6 At trial, appellant argued tl1at as a retiree of the Navy,
Senator McCain was subjc'Cl to the UCMJ" and therefore
the prohibitions in Article 37 apply. The military judge
concluded that Article 37 would only apply after the retiree
was recalled lo duly . W.; di~agfoc with the milihU)' j\ldgc
as to the plain meaning of Article 37 . See generally, l '11ited
Sin!<•., v. !Ji11gPr, 77 M.J. 447. 45:l \l' A AF. 20!ll) ("Re-
tired members of a regular component of the armed forces
who arc c11titlccl lo pay are subject to the UCMJ and, there-
fore, trial by court-martial.") (citations and internal quota·
tion marks omitted): r ·11it,•d S1a1e.< ,-. .\!,//er, 7~ MJ. ~35.
KlS n. 4 (/\mi; CL Crim. App. 2019).
Though we agree that the language «subject lo this chapter''
was not intended to incl ude a mcmbcrof Congress, Article
37 docs not expressly exclude a member who is also a mi1-
iLary rctiroc. The language in Article 37, "No person sub-
JCCI to this chapler may allcmpt to coerce o r ... influence
IJ.ie action of a court-martial or any other military tribunal
or any member" is unambiguous. If Congrc~::; wishes to ex-
empt the mcmhers of Congress, or any other group, from
jurisdiction wider the UCMJ, it has the power to do just
that
Though we d isagree with the military judge as to bis con-
clusions regarding whether Senator McCain was subject LO
the LJCMJ for Article 37 purposes, we agrc'C with his con-
chLsion that there was no evidence of unlawful command
innucncc. The militruJ j udge correctly found that the de-
fense failed Lo rncet its burden of establishing "some evi-
dence which, if true, would constitute UC! which would
have a logical coUJ1eclion lo llhcj cout1 -roartial in t<..'TITIS of
potential to cause unfafrne~s in the proceeding~.··
The record shows thaLLhe convening authority had no com-
munication with Senator McCain or his office~ nor did any
person in senior Army leadership (either military or civil-
ian) atlc'lllpt to interfere with G EN Abrams as he made his
referral d~-eision. Fwther. the rec-Ord c<>nlains no evidence
that Sc'!lator McCain aucmptcd lo lake any action fo r or
agains.1 the convening authority or any roemhcr of the
court-mat1i:il.1-1
Even if one con.d uded that a Senator's lhre~t to hold :1 hear-
ing was an attempt to coerce or influence the action of a
convening authority, we find it did not rise to IJ:ie level of
an " intolerable strain" on the military justice s-ystcm. The
trial judge found, and we agree, that "[a] reasonable mem-
ber of the public knowing all the facts ancl circumstances
would recop;n.1,c Senator McCain's ill-advised statements
for just what they were - political postu,ing designed to
embarrass a political opponent (President Obama) and gain
some political advantage."
Z. Did tl,e comn1ents made by candidate Trump create
the appearance of UC!?
*7 Appt:.llnut next alleges the military judge en-ed when he
failed to remedy tJ1c \JC! created by the ti1any of insulting
comments candidate Tn1mp levied against appellant during
his presidential campaign. Unlike Seoator McCain, who
w::i~ :10 honorably rctir~d naval officer, and therefore a
"p<.TSOn subject to [the UCMJ 1:· Mr. Trump never served
in the armed forces and does not fit any of the definitions
of a "person subject lo the code!' l JCMJ :u-L 2. P,i or to be-
coming president, Mc Tn,mp was neither an elected offi-
cial nor was he a go,·Lmment employee. The question th~-n
becomes whether his vilifica1ion of appdlanl as a pl'i'\1ati:
citizen created the appearance o r UCI at appellant's court-
martial.
There is no precedent for finding UC! based on the remarks
or private citizens, even in nucntial ones. Appellant argues
tbiS courl should look 10 the rationale in Tnunp \'. llawcJii,
and apply a similar analysis. - U.S - -, 138 S. Ct
2392, 20 I 1..F, i.2d 775 (20 1X). We find that case easily dis-
tingutshable. lo Trump\'. l!awa11, lhe Supreme Court con-
sidered candidate Trump's campaign vows to bar Muslims
from enlering the U.S. as extrinsic evidence of his motive
to issue an Executive Order (EO)" that placed restrictions
on the nationals of predominantly Muslim countries seek-
ing entry into the U.S. Id. 01 2~ 17-20.
In 7'rump 1·. //awau, the Prcs-idcnl'"s EO was the subject of
the challenge; meanwhile. his campaign rhetoric was
merely a consideration in the Court's analysis or the EO's
constitutionality. Iu appellant's ca,;c, by contr~1. at the
time of appellant's second motion to dismiss for UCI, Pres-
ident Tiump had just been inaugurated and had not taken
any aclion a.s Presidem or made any comment regarding
appellant. Essentially, appellant's second motion to dis-
miss was uot ripe.
Appellant alleges the miliwry judge erred by not correctly
applying the test for apparent UC!, and i11stead blended his
analysis between actual and apparcn11JCI. We l'ind no er-
ror, as we agree with the militruJ judge that appellant did
not meet his burden to establish any evidence of UCI - the
lirst step in ~-ither ru1 actual or ap1>arent UC! case. 13cfore
the burden shifts to the government, to prove either no prej-
udice l<) the accused (actual UCI) or no intolerable strain
on the public· s pere<.'l)tion of the military justice system
(apparent \JCI), the defense must meet its burden. lnccndi -
aty remarks by private citizens. even innucntial one..", dt>
not constitute evidence of UCL"
3. Did the commenl.s made by President Trump creal(i:
the appearance of UC/?
On 16 October 2017, the milita,y judge accepted appel-
lant's guilly pica. Tha, same day the Prcsidcnl was a::;kc<l
ahout appellant's case. In response, l'rci<idcnt Trump
stated, " Well, l can' t c1>mment on 13owe 13ergdahl because
he's -- as you know. they're -1 guess he's doing something
today~ as W(;; know. And be 's also ... they 're setting up sen-
tencing, w I'm not g()ing to comment on him. But I think
people have heard my comments in the past." Defense
counsel immediately n'tlcwc<l
.. Lhcir motion to dismiss for
apparc'llt UC!, and contended the !'resident had ratified all
or his c;arlicr conuncnls.
*8 Tiie milit:nJ judge agrcc<l witl1 appellant that this sl3lc·
mt..'Ill was a ratification of the Prcsidcnl's campaign rhclo-
ric. Ile fotmd the "plmn meaning of the l'resident 's words
to any reasonable hearer could be 1ha1 in spite of knowing
that he should not conunent on lhe pending ~c'lltcncing in
this case he wanted to make ~ure that everyone remem-
hcrcd what he really thinks should happen to the accused."
The military judge also found that as the comrnander-in-
ehicf of all lhe armed forces~he has t.hc power to fire'" or
take adverse administrative aclioo against auy military of-
ficer involved in the trial of this ca:;c from sentencing for-
ward (i .e. him:;clf, the SJA, the e<,nvcning authority, and
the judges of the Anny Court of Criminal Appeals). The
militaI)' judge therefore found appellant met bfa initial bur-
den showing some evidence of UCl The milit~U'Y ju<lge
found this a close call.
Applying I.he lfoyce framework. the mililary judge ulti-
mately concluded. lhot the government met its bw·dcu to
show oo intolerable ~train ·~and Lhat an objective, disinlcr-
c~ted ob=-ver, fully iofom1ed of all tile facts and circum-
stances, would not harb<>r a s-ignificant doubt about the fair-
ness of these proceedings."" (emphasis in original). We
agree.
lbc military judge gave appellant an opportunity to with-
draw his p)ea. I le chose not to. Therefore. the question we
ask is how would an objective, disinterested, fully io-
fonnvc..l obs~1·ver, knowing that there is o.o actual unlawful
influence, view the .sentencing proceedings when the indi-
,•idunl determining the sentence was this particular military
judge."
President Trump· swords make clear how he felt about ap-
pellant. The actual comments were removed in time from
the sentence proe<,'<'dings. Although President Trump rati -
fied the comments, their impacl was lessened by lbc re-
moteness. F urthcr, the military judge, tiie SJA, and the con·
vening authority credibly explained that they were not and
would not be influenced by the P=idenl's statement.
Wh~1 comparing the facts here to tho::;~ ill Boyr:<t and
Bony, ·w e nrc stmck by differences between c.ascs where
individuals reached oul to lhe convening authority and the
SJA instead o f a casl:! likt! uppellant·s~ where lhccomrncots
wc.".fc brought l<> the attention of lhc court by the defense
iiself.
•9 We e<,nclud~ that under the facis in this c,csc, tl1c mili-
tary judge was correcl in finding there wns not an intolcra-
hle strain on the public's perception of the militai,' justice
system because a fully informoo observer would not harbor
a significant doubt as to the faimc.-ss of the pr<>eecdings.'"
-f. Unl.anful C()mmund Jnfl,,ence and rhe Post,.trial Pro-
cess
The same day appellant·s sentence was announced, Presi-
dent Tnimp publicly expressed his displeasure with the
scnte-nce in a post on Twiner: " Lhc decision on Sergeant
Bergdnhl is a complete and total disgrace to our Country
and to ow· MiliL:u)' ." During the seven monthsfroro the end
of appeJlant's court-martial until Lhe convening authoriry·s
action. Lhc President made no further comments regarding
appellant. The defense included the tweet in its R.C.M .
I I 05 submissions.,.
Thi.: convening authorily received the post-ttia.l record, in-
cluding uppeJlaut's !< .C.M I IOS submissions. and lhc rec-
ommendations of the S.TA. On 23 May 2018, after consid•
c,ing al l of appeJlant's matters, including appeJlaot's spc·
cific rcquc:-;t for a dishouorab1c discharge~ lhe convening
authority approved the sentence as adjudged.
Unlawful influence can impact any phase of a o·ial to in-
clude the convening <luthority 's actions and the appellate
eoUJ1. See. e.g., I/any, 7S M..1. 70 (finding the Navy l)ep-
uty Judge Advocate (;cncral committed UC! while advis-
ing oonvcning authority during post-trial processing). Un-
like appellant· s al legations of UC! litigated al trial, the al-
legations of UC! in the post-trial phase were raised for the
(irsl lime on appeal. As there are no facL~ in contention, we
arc able to analy,.c the allegation on the record before us.
Appd lant argues the Presidcnfs posl on Twitter consti-
tutes UCI because it violated R.C.M. ll).!{a)( l). /\ppcllce
contends Lhc Prcs,denrs tweet d0<.,'S not constitute UC! be-
cause the J>rc-sidcnt can only violate R.C.M. I04(a)(l) if be
personally convened 1he court-mm1ial.
Ruic for Couns-Manial 104~a)( l) mirrms Article 37,
UCMJ, in mom respecL,;;. Thc...-rc is a difference which is rel-
cvttnt in this case. At1iclc 37 state:,; ...No authority conven-
ing a [gene,-..l court-martial J may censure. reprin1and. or
~uJn:ioni~h the court or any 01(..'ttlb<.-r, rorl 1n.ili1a,y judge ...
witl, respect to the i'indings or sentence adjudged by the
court." (emphasis added). Ruic l'or Com1s-lvfonial
h>4(a)(I) ~totes "No convening autho1ity... may censure,
reprimand. or i1dmoni:::h a court-martial ... or any member.
military j udge or <:<>wlsel thereof with rc~-pcct to the i'ind-
ings or sentence adj udge<l by the CO\ut-martial. ..." (empha-
s is added).
A plain reading of /\niclc 37 leads to the conclusion thal
Congress has prohibited a convening autl,ority from cen-
suring the military judge for a scnLcnoc in a ca~c that he
convened. The text of R C.M. l04(a)( I) expands this to in-
clude the prohihition ot' a convening authority censuring a
military judge for a sentence regardless of who convened
the trial.
*IO Herc we have the President, who is listed as a convcn-
ing authority under Article 22, UCMJ, censuring the mili-
tary judge for appellant·s adjudged sentence. The Prcsidc'J1t
did not convene this court-martial ; therefore his tweet did
not violate Article 37, but did violate RCM 104(a)( I)."
Having found Ll1at the l'res,dcnL' s day-of-sentencing tweet
violates K C M. I 0-l(a )( I), but not Article 37, the questi,m
arises of whethc-r, and bow, to apply Lhc CAAF's Article
37 UC! jurisprudence to this situation. While neither Lh~
CAAF nor this cou,1 has addressed this issu~ head-<>n, at
least two independent Lines of {()gic :-.upport. t.he conclusion
that we should apply the CAAF's /\rliclc 37, UCMJ, UCI
jurisprudence here.
F'in;t, while the precise inclusion/exclusion lines differ
slightly. there is no question that the underlying intent be-
hind hoth R CM. 10~(>)(1) and Article 37 is the same.
That is to say, both sc-ck to insulate cow1s-martial from in-
appropriate outside intluence by commanders and k adc,·s,
both militru, • and civilian.
Since the dawn of the UCMJ era in ( ·niter/ Stales , ..
l>olwrl)', 5 l l.S.C.M.A 287. 17 C.M.R. 287 ( 19S.t ), and in
I ·11i/('(/State.< v. FstrodCI, 7 lJ.S.C.M./\. 635. 23 C M.R. 99
(1957), the CAJ\F bas applied UC! j urisprudence to situa-
tions in,·olving senior civilian leaders Whl!t'C those leaders
did noLfall into the black-letter CO\'erage of eirlter Article
37 or R.C M . l(M(a)( I).
Less than five yea1'S after Lhc passagi.:: of the UCMJ, the
CA/\r's prcdc-cessor court held in T>olierty that o policy
memorandum from the Sc-crctmy uf the NaY)', interpreted
by the convening authority to rcsuict his clemency autl1or-
ity, ·'conJlict[edl with the [UCMJ] oud mus! yield." 17
C M.R. at 2%. While the CMA did not believe lhc Na,,y
Secretary 's policy memorandum in fact mandated separa-
tion. Lhe court was '·convinced the convenin~ authority
did" -so believe::, and thus remanded lhc ca~ for a new con•
vening authority's action. M.: see al.so J;.,tmda. 23 C.M.R
nL 102 (C .M.A. 1957) (addressing use of another Secretary
of the Navy in~truc1jon at a court-m:1rt1al, oot.ing - although
we are here faced with a Secretary rather lhan a con1IUru1d
diroctivc, the fonncr, emanating from the Secl'etary or a
service, would be even more per.ma~ive mid bring more
pressure to bear upon the members or the court than the
latter type dil'eclive,·· :ind furtller explaining that·· 1i]t was
agaim,1 Ll1is so11 or cc)mmand influence thal the Code was
initially directed.") (emphasis added); L ·11//~d Scares v. • 11·
lt'n, 20 U.S.C.M./\. 117, 43 C.M.R. 157. 158 (1971) (sel-
ling aside a se111ence in the face of yet another Secrctaiy of
the Navy instruction that seemingly mandated a discharge
and which was read to the court-martial panel, and explain·
ing "no cautionary instruction to tnt!mhers of I.he court that
they may disregard the announced policies of Lhcil' com-
mander can relieve the error from prejudice.").
•1 1 Reccnlly in Boyce, 76 M..1. 242, the CAAi' applied iL,
apparent UC! jurispn1dcncc to the actions of the Secretary
of the Air Force, in a case which involved, not lhe qucs1ion
or whether the Sccretaty was a ~convening authority," but
whether she was "subject to the UCMJ," because of the ap-
plicable porlion of Article 37 at issue in lhat ca:>e. H,~vce,
7<, M.J. al 2-16, n.3."
In light of the foregoing, we conclude the CAAF'sapparcnl
UCI juri,l)rudcncc for Article37 violations is the appropri-
ate lens thmugh which to analyze !he President's R C.M
W-1< a)(l) violation.
a. Convening Authority,s Action
Applying the lloyce framework we lind appellant has es-
tablishc<l some evidence of UC!, and the government bas
noL rcfulcd those faclS. 1bercforc, we must <letermine if the
guvcnunenl has met its burden beyond a reasonable doubt
that any apparent UC! was amelioruted and the disinter-
c~h.:<l pubfo; would bdicvc appellant recd vc:<l a COt"IVe:niog
autl101ity action free from the effcc-ts or UCI.
Does tbe day--of-scntcncing tweet consti1u1e an intolernble
strain on lite military justice system? Would a fully in-
fonned observer knowing all or the facts and circwnstances
harbor a significant doubt as to !lie faimc:ss of the conven-
ing. aulhonry·s action?
\Ve look a11.hc entire record to answer these t)uef>tions. ·111e
only change between the rnilitaiy judge's announcement of
the sentence and lhc convening authority 's acLion was tbc
one tweet by ll,c President and the addition or appellant's
mailers under R.C.M. ! 105. We l'ind that after appellant's
trial, appcllanl went on regulat leave, which converted into
appellate leave. We find that seven months passed between
the end of appellant's trial and the convening authority 's
action. We find no evidence in the record that any party
:::ubjt:eL to Lhe UCM.I attempted to inilucncc the conv.::ning
authority . Nor do we find evidence or uninLcnlional influ-
cncc.:.1
The conveninp. authority testified credibly and produced
two affidavits, including one which recogni:,:cd that there
might be future wcmpt, 10 influence him .~ The sentence
he w as taking action on con:;istc<l of a dishonorable dis-
charge, forfeilurc of $ 1,0(X) p:iy per month for ten months,
nnd a reduction to Lhc grade ofE-1 . The wnvcniog author-
ily had the record of uial, including all of the evidence in
aggravation <.UlJ t.hc evidence io mitigation.,. and the fact
thal appellant pleaded guilty and specifically requested a
dishonorable di:;charge. AppelJanr s J)()St-uial mailer., sub-
miltoo to the convening authority, under R.C.M. l lOS and
R.<..'.M l 106, consistc'<i of a single request lo have the mai-
ler considered by a different convening authority and is ab-
sent of any formal request for clemency in the fom1 of sen-
tence roductiou.
*12 Applying the test from Boy ce to the facts in thh. case,
we believe a fully in.formed observer would not have 3 sig-
uificaut doubt as to the fairness of the procec'<liug. ··we fo-
cus upon the perception of faimes.s in the mili1a1y justice
system a!:i viewed by a member of the public." J.ell'is, 61
M .J. at -I 15. Ju spite of the tweet by ~1e President, we do
not be) icvc that an infooncd member of !he public would
harbor any doubt, let alone a signilkant doubt, that appel-
lant received a fair triaJ to include his chance at clem(..'ttcy ."
We also look to the strain on lhe milita1y justice ;,-ystem.
We lind some strain - we arc mindful that the President's
worcl5 could have a chilling cffc-cl on this military judge or
on :::.-imifarly situated appt.!llauls.. We are convinced the mil-
itary juslicc ;,-ystem is not so fragile that this comment
cau.'-cd an intolerable strain.
b. Appellate ReviL'>V
Ln addition lo lhc.:: 1::.:)1Je of whether the Prcsid(."Ilt \ , lWeet
created unrcbut!ed UCI in the action hy the convening au-
lbOrity, appellant contends that Ibis co,u1 is tainted by UCl
and unable to conduct our appella1c rcvit..w· . We have con-
sidered appellant's argument and applying the standards
sci out in R C M <Xl2 and the C<idc of Conduct for United
States .lUdges; we dis.agree.
We next addrcs.s appellant's supplemental allegation of er-
ror, !hat during the pendency of his appeal President Trump
commiued additional UC! by again publicly vilili•ing ap-
pellant as a traitor. We conclude that this tweet docs no1
amount to UCI : "No money was paid to North Korea for
Otto W:umbier, no11wo Million Dollars, not anythrng else.
This is not the Obam:., Administration thal paid 1.8 Billion
Dollars for four hostages, or gave five terroist lsicJ hos-
rngcs plus, who soon went back to battle, for traitor Sgt
Bcrgdah.l! ,,,
Uulikc the Presidenl'sconunenl on tbe adjudged sentence,
the tweet is not a per se violation of R.C.M J04(~XI).
While pa11.s of the tweet arc inaccurate/ ' Lhcl'"I! is no nexus
between the tweet and the appellate proc~s.,. This court
would have no knowledge or lhc President's statement but
for the submission by appellant. Applying lhe Boyce 1c;,1
wc do not believe that this tweet meets appellant ,s thresh ..
ol<l burden of some evidence of UC!.,-

5. Cumulative UC/
The military judge properly analyzed the allegati()ns of
UC! as they were raised by appellant. In this opinion we
too have analy:ccd each allegation of UC! in a discrete fash-
ion. Weals,:, ask the question: is there a cumulative cJTc-ct
which, as in a cumulative error case, that denied appellant
of il fair 1rial. .<we 1 ·n ited S1au;s v. Popi!, 091\1.J. 3~K 335
(CAA F 2011 ).
* 13 In a swnda.rd cumulative error case we review de novo
the effect of all plain errors and preserved crr<>r.<. Id. Under
the cun1ulalive-<.:t1'0t doctrine, <<a number of crro1'S. UO one
perhaps :,-ufficicot LO mcril reversal, iu combination ncccs-
sirnte the disapprcwal of a linding." ( ·11i1ec/ S1n1,., v. Hanks.
16 M ..I. 150. 170-71 \l'.M./\. 1992) (citation and quotation
marks omiltcd). We only review actual em>rs, not just al-
legations. l 0ml(•d S1a1es v. Hammer, 60 M .I. ~ I 0, 8 19 (cit-
ing l 'nited States v . ( ;auvin, 17:1 F .Jd 7<J8, ~04 ( 10th Ctr.
1999)). If aller reviewing lhc i,,'1Yors we fiod the cumulative
en-ors dG'llied appellant a fair trial, then we must reverse.
See Pope. 69 M.J. at .BS.
Applying the logic of the cumulative error doctrine 10 alle-
gations or lJC I, we look to all of the allegations of UC!
which met 1he sL1ndard of"some evidence ofUCF, that is
the pre-sentencing comment of President Trump which
validated bis prior comment, regarding appellant, and his
tweet censwing the mililllry judge. We find the eumufativc
effect could not reasonably be perceived by a disinterested
mcmbc'!' of the public as improper command u1flllence or
otherwise uu.Jicati ve (,fan unfair prOC<.."OOing.
8. ML,hehavior before the Enem_1,
Appellant argues Charge ll and its specification, alleging
appellant comm itted misbehavior before the em.my . fails
to state an offense. /\ppellam preserved this issue by timely
objection and a conditional plea at his court-martial. We
review whether a :specification states an offense de novo.
l'11i1ed S1a1,·s v. Sch/off. i4 M..I. 312, 313 (C.A./\.F.
::!015)."
To state an offense, a speciricauon must allege every ele-
ment of the offonsc "either expressly or by necessary itn-
plicalion, so as lO give the accused notice and prolecl him
againSL double jeopardy." l'niied Sla!<'s v. IJmr, 40 M..I
196, 197 (C.M.A. 199~) (citations omitted). "This is a
tbrc-c-prong test !'equiring ( I) the essential clements of the
vfft:J\~~. (2) ovlic.:c.: vfthc clrnrg e , and ( 3) protcclion agaiu&
double jeopardy." Id.
Tn relevant pan, Article 99 p!'ovides:
Any member of the anncd forces who before or in the
presence of the enemy-
(2) shamefully abandon;;, s11rrendcrs, or delivers np any
command., unit, place, or military propeny which it was
his duty to defend;
(3) through disobedience. neglect, or intentional miscon-
ducL endangers the safety of any such command, wut~
place, or militru)' propc'1ty;
... shall be punished by death or such other punishment
as a cowt -ma11ial may direct.
In relcvru11 part, Charge 11 and its specification alleged:
l/\ppcllant did.] berorc the enemy,
endanger the safety of Observation
Post Mest and Task Force Yukon,
which it was his duty to defend, by
intentional misconduct in that he left
Observation Post Mcst alone; and
left without authority: and wmng-
fully caused search and recovery op-
crntions.
• 14 Thus, appellant was charged under suhsection tJ,rcc of
Article 99, specifically under the the<>!)' that he con:uuiued
intentional misconduct that endang~-rc-d OP M.:st and Task
Force (TF} Yukon. As a result, appellant was charged with
an offense consisting or 1hc following clements: (I) appel-
lant had a duty to defend OP Mcst and TF Yukon; (2) ap-
pellant committed intc'lltional misconduct by leaving OP
Mcst alone and without ::mthority . and wrongfuHy caused
search ,md recovery operations; (3) appellant thereby en-
dangered the safety of OP Mest and TF Yukon: and (4) lip·
pdlant did so before tJ1eencmy.
/\ppcllanl admitted the factual predicate of the charges, but
challenges whether leaving OP Mcst alone, without author-
ity, and wrongfully causing search and recovery operations
conslitutcd "intentional miscondt1c1." Appellant's chal-
lenge bas three components: FtrSt . appellanLargm.~ "'intcn-
tional misconduct'' is synonymous with independently
c11minal conduct. Second, appellant asserts that because in-
tentional misconduct is synonymous with independently
cnmmal conducL, a cbcirgc alleging imcntionul wi:,;cou<luvl
must allege the elements of a separate olTcnsc under the
tJCMJ. Third, appellant contends that because !he intcn-
ti<>nal rnisconduct alleg<-"1 in Charge II and its spc-cilication
includes throe clauS<-'S, e-0ch separated by a semicolon, each
clausc must independcnlly all~ge all the clcmcnLs or a sep-
arate offense under the UCM.l. We disagrc"'C. We address
each of appellant·~ argumcnL"> ln·lum.
J. Jn tentio,u,I Misconnut:l and llldepencle11Jly Criminal
Condut:l
Appellant's argument is predicated largely on Cmted
S1n1,•., v. Cm,•,•. 4 U.S.C.:vl A 11 2 I~ l'.M.R. 112 ( 1954).
In ('"rey, o~r superior court affinned Corporal (CPL)
Carey 's conviction ~Jleging he'· ... did, al J\PO 248. on or
abolll 3 December 19 52, before the enemy, endanger the
safety of his unit, Tank Company, 901 lnfanU)' Regiment,
which it was his duty to defend, by intentional misconduct
in that be became dnmk while on duty as Tank Com-
mander." Id ;11 I l-l.
On appeal, CPL. Carey raised a claim much like appel-
lant's, alJcging that «intoxication alone does nol constiturc
rhe offense of misbehavior.- Id. To evaluate CPI. Carey's
claim. our superior court considered that the te,m miscon-
duct "contemplates a transgression of some established and
definite rule of action, where no discretion is lcf~ c.~"'-1'l
what necessity may demand; ... a ,folation of a dclinilc
law." Id. at 115 (intemal citations and quotation marks
omitted).
Our superior court a1lirmcd CPL. Carey ·s conviction and
explained "11,cre is no doubt" that drunk<--nness "constitutes
intentional mi:s<x>nduct ... for drunkenness is a viola.lion of
Article 134 or Lhc Code, and, when it occurs while on duty,
it is a violotion of Article 11 2 of the Code." !ti. tH l 1(, (in-
tcmnl citation::; omitted) .
Appellant fo11hcr relies on ( '11i1ed S1a1es v. .1/iller, 44
C M.R. R49 (A C.M.R. 1971). lu A/,//n·, our prcdcccs.sor
court found Private (PVT) Miller and Specialist (SPC)
Vinson's convictions for misbehavior before the enemy
factually insufficient. Private Miller and SPC Vinson were
char!!ed under the theory they committed intentional mis-
conduct when they "played dead during a sapper attack" on
lhe fuel tank rann they w~TC guarding in Vicuiam. Over-
wming lhc two soldi(.,'l'·s convictions) our predecessor court
relied on the specific facts and circwnstances of the case.
Our predecessor court found lite evidence against PVT
Miller and SPC Vinson was simply too flimsy to support
convictions for misbehavior. 'Ille oourt nolcd lhal "thete is
not a scintilla of evidence lo show that they v1olated any
specific orders or instructions by remaining in the gate
shack during the briel' bul violent enemy attack." Id. at 1153.
The court fw1bcr observed: " 'Playing dead· is not much
different fnlm ' taking cover;' ncitl1er is misconduct, per sc.
Suffice it to say that we arc nol convinced bcyund a rca.
sonable doubt that the behavior of tht accused, under the
anendant circumstance!$, constituted intentional miscon-
duct within tbc meaning of Article 99 .. .:· hi.
• 15 AppelJant argues his case is like ,\/,I/er, and unlike
( ·an•y. We disagree. ,\Ji/fer was a fact-specific opinion
based on insumci~'11cv of the evidence. The facts of appel-
lant's case are simpl; nothing like the facts in .\Iii/er. lly
conu·ast, appeUant 's case has many parallels with Carey.
Much likt: the intcntionaJ misconduct at issue in C(lrey, 1.hc
imentional misconduct with which appellant was
charged- leaving OP Mcst wilhout aulhorily-is a vio la·
tion of /\rticle 86, in that appellant absented himself from
his unil and place of duty withou, authority. In fact. Article
86-absence without lcavc-isa lesser-includcd offense or
/\rticle 85-dcscrtion-to which appellant pleaded guilty
immediately before pleading guilty to misbcha,~or before
the enemy.
We ,ire skeptical of appellant's argwnent that "intentional
misconduct" i::: synonymous with indepe ndent criminal
conduct. In ('nre_v, our superior cour1 indicated that be-
cause CPI. Carey's intentional misconduct violated a sq>-
arate article of the UCMJ, Lhcre was no fair dispute that it
constituted intenti<lnal misconducl under /\rticlc 99. This
is not the smnc as holding that an acL must be independently
criminal to constitute intentional misconduct. Ncvcr1.he ·
less. we need not decide this issue in order to decide appel-
lant~::. ca~. The intentional miscondoct alleged against ap·
pellant was indcod independently criminal. Thus, as al-
leged. Chari:e II and iLs specification states the c:;scnlial <:l-
emcnL~ or misbehavior before lhc enemy, pla(.;C(i appellant
on adcqualc m.>UCC of tJ1c lh<..'OIJ under which he was
charged, and provided sufficient specilkity to protect ap-
pclfant from double ji::oparcly."'
2. Elemenlf within Elements
Even assuming> arguendo, 1..hal intentional misconduct 1s
synonymous with independent lTimi11al condoct, appel-
lant ·s clajm that a ~-pcciJication alleging intentional mis-
conduct must explicitly allege every element of Lhe inde-
pendent c'riminal conduct is incorrect.
Several p1u1itivc articles undcT the UCMJ incorporate pr<:d -
icatc crimes: e.g. Article 78 (accessory after the fact); Ar-
ticle 81 (conspiracy); and /\.rLiclc 134 (misp,isiou and so-
liciting). Specifications alleging any ,,f these derivative of-
fenses need not allege all the elements of the predicate
crime lo stale an orfcn.sc. This p1inciplc is con~i ~tent with
the ruJc that a spcc-i rication rm,:-;t allege every clement of
the charged offense ·'either exprc$ly or by neces.tmy im-
plicalion:· D,·ar, 40 M.J. al 197 (emphasis added).
For example, a specification alleging conspiracy to commit
larceny need not c,pliciUy allege the elements of larceny.
l 'mted ,S'h:lt•s ~·. \'orwt>od, 71 MJ 20"1, 206 (l'./\.A.F.
2012). If an accused rcquin.,-s additional specificity with rc-
spc-.:1 to !he nature of' the alleged larceny, the accused may
reque,"t a bill of paniculars.
We""" no reason to c,,tablish a diffcmn n,lc for mishehav-
ior before !he enemy than for conspiracy or other offenses
that allege a predicate crime. Even if inlcntional mi~-con-
ducl were synonymous with independent criminal conduct,
~\ specification a11cging intentional misconducL need not
explicitly slate every clement of a separate crime in ordc,·
lo ~bite an offense.
• 16 AppellanL plainly had notice of Uie theory of intcn-
tionaJ misconduct alleged 1n C hnrge II and its :-:~cification.
The n.ature of the !')pocification was heavily litigalcd long
before appellant's guilty pica. Mcm.:ovcr, during appel-
lant's plea inquiry. he was fu11y providt.'tlt lo the natm·e of
his intentional misconduct. Thus. any argument that appel-
lant Jacked sufficient notice ns to the clcrncnls of the of-
fense lo which he plcadcxl guilty is meritlcss.
3. Semicolons separate grammatical~v complete dauses;
they also indicate a close relationship between clauses.
Appellant argues that. because the government clcctcx-1 to
use semicolons to separate three clatL"ics dC$c1ibiog appd-
lant's intentional misconduct, each clause separated by a
semicolon must a11cg..: independently crim.innl conduct in
anJ of i tscJf. Appcl1nnl 's arg,umel'lt is based <"In the fact Lh!!l
semicolons are propc-rl)' uSt.xl to separate "independent"
clau~ wifuin a single sentence. We are uni.1ersuadcd by
appellant's argument.
Semicolons are used to suggest a close relationship bc-
lwecn grammaJicaUy independcot clauses that are never-
theless concepwally related. See William Smmk Jr., & E.
fl. White, The Eleme,uso/Style 5-6 (4th. ed. 2000). ln such
use, clauses separated by a semicolon are gnunmatically
independent, bu! conccpl\1a lly linked.
The content of the clau:;cs al issue flll1her shows thev arc
ccmccptually linked. The lirst clause suites, "[appellanq
left [OP) Mesi alone." While that clause could stand on ils
own, it is followc-<l by a clause that reads, '·and left wilhout
authority." The second clause lacks both a subject and an
ohjc-ct unless bolh arc implied by the preceding clause:
Who left what without aulhorily? .1,,,,ellm11 lcfl OP fvf;,s t
without authonty.
The third clause cont.iins a compound objccL, "search and
rccm>Cl)' operations.. but lacks a subject unless the subject
is implied by the first clause. Who wrongfully caused
search and rccovC!)' operations? Appel/am wrongfully
caused search and TL>covery operations. In context, the third
clause also implies a prepositional phrase. //ow did appel -
lant wrongfully cause search and recovery <>perations'? Ap-
pellant wrongfully caused search and recovery operations
by leaving OP Mest alone tmd without authority.
A1tlcss punctuation dic.l not nullify the plain ,neanlng o r the
sc..,'tl{(.'tlCC al issue.1(1 The meaning of the senlcncc compris-
ing Charge 11 and its specification is that appcllan! conunil-
ted a single unit of prosecution- "inlcntional miscou-
duc1)'-:ind all three clauses following the w<>rds "ln thnt..
comprise the uni! of prosecution with which appellant was
charged. See generally Cnirrd S1a1<'.< v. Remz. 777 F.3d
l 105 (Hlth Cir. 2015) (discussing the import,uiceof iden-
ti{yi.Jlg the unit of prosecution ill criminal statutes).
U the government intended to aJlcgc three separate in-
stances of inl(':Ution3I misc<>nduct-cach ao independent
un.it of prosecution-under a single spccificalion. it would
have alleged appellant did so on "divers occasions." The
govl.mmt..1H did not.. Taken as a whole. the theot)' of liabil-
ity allcgt.-d was unambiguou.s. ,i
• 17 Even if we agreed with appellant that intc.111ional mis-
co nduct is synonymous with independently <..1iminaJ con-
duct: that the govcnimeut must allege all !he elemenls of
an indq,codcnt crime in order to properly charge "intcn-
liona1 mi::.cooduct;» and that ::.epatating clauses with :;cmi-
colons makes the clauses conceptua11y and not jusl gram-
matically independent: we w()uld ,'till find the military
judge did not abuse his discretion by denying appcll,ml's
molion 1.0 dismi~:-. Charge II ,:md iL-.. :0,.1:>ecificuLiou.
Under the reading most solicitous to appellant, Charge [I
and its specification alleged appellant, who had a duty to
defend OP Mest. instead lcfl OP Mest without aulhority.
Article 86 criminalizes going from a place of duty without
authority . While the languap,e of Charge II and its specifi-
cation may be cumbersome, we find it includes all the clc-
me,Hs necessary l<> alkgc an offense under Article 86 either
c,plicitly or by nc-cessary implication. Thus, Charge TI and
it.s spccific,Hio11 still would state an o ffense even if we nc-
ccplcd all of appellant's othc-r arguments about inlcnlional
misconduct.
For Uie foregoing reasons, we conclude the milital)' judge
did not err when he dcnic-<l appellant's motion t<> dismiss
Charge Tl and its specification for failure to state an of-
fense. We further find the military judge did not abuse his
discretion whc'fl he accepted appelhmL's guilty plea Lo mis-
behavior before the <.i-1ctny.
CONCLUSION
We conclude that under the facts in this case that the mili-
tary j u<lgc was con-eel in rinding that there was neither an
intolerable strain on the public's perception of the military
justice system nor would a fully info11ned observer harbor
a significant doubt as t<) the proccc'<iings.
The findings of guilty am! the sentence are AFFIRMED.
Judge S/\L/\DINO concurs.
Judge EWING, concurring in part and dissenting in part:
As the majority correctly holds. R (' M I 0~ applies to the
Prcsidcnl, and the P~sident's day-or-scnH.,'1lcing tweet vi-
olated RC M lfJ.J(a)( I), and thus 1'iiiS<.'1 some evidence or
UC! " 1 further agree with the rnajo,ity that these finding.,
shift the burden omo 1.he government to show, beyond a
reasonable doubt, that the convening authority's action was
not tainted by either actual ur apparent UCL Where I part
ways with I.he majority is that I do not believe lhc govern-
mc'Ot has met this high burden here. Therefore, while I con-
cur w,Ui U1e rest of the majority opini<m, I respectfully dis-
sCllt from the m.ajority's holdmg that appellant received a
convening authority ·s action free from UC !.
* 18 The.; :;iu~ular challenge in military juslloo ls the em-
powcnncnl of lh(; sy::;tem ~$ criticaJ docision•mak<..'1"8-pancl
mernhers, military judg..;s, aud convc1>.iug authorities - to
e,crcise tl1cir independent judgment in adjudicating courts-
marlial, ,vithout regard toe:,,..1emal influence. Outside of the
military justice system, the law requiffs these s.lmc indi-
viduals to follow aU lawful orders of their supe,iors. See,
e.1,..Article 90, CJCMJ (criminalizing willful disobedience
of a supc,ior commis.~ioncd officer); Article 91, lJCMJ
(criminalizing iosubordinalc conduct towards noncommis-
sioned ot'liccr.-). lnd..;cd, 1.hc xnilitruy '::. e:olj:U.mcnt oath cx-
prcs-sly names the !'resident of the United States, by posi-
tion. as new rccruiL~ .. solemnly swear" to obey, JO U.S.C.
§ 502. Likcwi~, Article 88, lJCM.J makes i( a crime for a
commissioned offiocr to "use contemptuous words against
the Presider)!" in Ct...""rtain circums:L;:inc~:-:.. These l:w.:s rcllcct
!he bedrock. principle of civilian control of the military by
a duly-elected Prcsicknl, and the President's civilian Dc-
lcnse and Service Secretaries. For good reason, this is how
the militat)' functions on a day-to-<lay basis, in hoth garri-
son and combat.
By con1rast, for the mi/it(lJy juslice sys1e111 to funelion, ils
tUlifonned decision-makers musl exercise ln1e independ-
ence. The system would crumble ii' Service Secretaries
could order convening aulhotitics to refer cases to courts-
mru1ial, or commanders could order pand mcmbcrs to volt:
for particular sentences. See, e.g .. Borce. 7o M J at 252-53
(reversing a <:onviction based on apparent UCL on a con-
,·cning authority's rcrerral decision): Cnited ,",/ates v.
<'hikaka. 76 M.J. 310. 3 U (C./\./\.F 2017) ("the use of ' a
commanding officer before a court-ma11ial ... to inlluence
the court members into returning a particular sentence· im-
plicates unlawful command influence.") (quoting C1med
State.< 1·. Ohrt. 28 M.J. 301,303 (C.M.A 1989)). This risk
is l!Xacerbatt.'O when the lJCT corn.es from the lop See 1':'>-
/rada, 21 C M.R at IOI (dll'ective from the Secretary of
the Navy "would be even more persuasive and hring rnorc
pressure LO beru- upon the members of the court" than one
from a uni formed commandinl( oHfocr, h(,-cause "[rjeason•
able men tnusl conclude that once the Secretary of a service
enters into the restricted arena of the courtroom, whether
the mcmbc~ of the coun arc conscious thereof or noL>he is
bound to exert some influence over them"). The dichotomy
between how the military works day-to-day and how the
militaJ)' justice system must function in order to produce
j ustice is why, for g.ood rcas<m, the CAAF bas repeatedly
called UC! the "mortal enemy of military justice:· See, e.g.,
R,~rn', 76 M ..l. al 2"16 (citing 'l lunnas. 22 M .I ul 393)~
Bm7)'. 78 M..J al 76~ ( 'm1ed ,','fau:s \.'. Ru.:~bt.·ck. 77 M.J
15·1. 16(, (C./\./\ .1'. 20l<i); C11itcd States,,. /Jouxlo.<, GS
M ..I. 3,19, 3SS (C.A.A.F. 2010)."
1t is against this backdrop that the President issued his day -
of-sentencing twecl '11,e tweet labeled appcllam·s ad-
judged sentence "a complete and total disgrace" to both the
··counllJ" and «Milirnry"' (sic). 1 ' The LwccL was timely.
highly specific, addressed appellant's case by name, and
was an unequivocal rebuke ofthemiJitary judge':; iu-coufl
sentencing dt)Cision, which the UCMJ empowered tl1e
judge lo make. See lJCMJ art. 53. Moreover, the Presi-
dent's prior statements about appellant left no doubt 1ht1t,
in U1c Prcsidc'Jlt's opi11ion, the "disgrace" of :ippell:uit '.s
scntcucc was 1ba1ii was disgracefully light.
• 19 The convening authority was aware or lhc Prc:;ideut ·s
day-of-sentencing tweet, if for no other reason than aj)pel-
Jant provided it to him in his post-trial mattcl'S pursuant to
R.C M. 1105 and 1106.'' The inescapable logic of the Pres•
idcnl ~s tweet was that the President would take a similarlv
ditn view. or worse. of. for example. the coovcnjng /luLhor-
ity' s setting aside appellant's adjudged Dishonorable Dis-
charge at action. Thus, the convening authority kuew pre-
cisely what a person be was othcnvisc duty-bound to obey
thought he shoo Id do about appellant's case at action - that
1s, grant ,ro c/cm(!ncy. Moreover. tbc "objective, dbinl~r-
ested obsc-rver, fully infonned of all the facts and circum-
stances," Boyce, 76 M.J al 248, would also know thal lhc
convening authority knew this.
i\fter the President's tweet, and before taking ac.ljon on ap·
pellaot's case (and affuming the sentence a.-; adjudged), the
convening nuthority :,;aid · ·- nothing. While the convening
a11tho1ity provided testimony and an affidavii al an earlier
proceeding regarding a different UC! claim in appellant's
trial, Lhosc came months before appellant ·s sentencing and
the Pl'esident's specific and timely tweet." While the con-
vening authoricy·s pt1or aflidavil and testimony are not ir-
relevant, in my view they do nol projc-cl forward with
enough force;: lo meet the govt.Ttuncnt ·s high burden fol-
lowing the President's day-of-sentencing tweet. Nor is it
dispositive (o assume m:~1JJendo, based on lhe convening
authority's p1ior Lc:stiroony and afTidavit, that he was not
actually influenced by the tweet, as that would only addrcs...;
t1ctual lJCI, and would Jcavc as an open question the ques-
tion of the appearance of UCL On this record, it is possible
that the ..objective, <lisiuh:rcstt:d oh:,;el"ver, fully infom1cd
,,fall the !'acts and circumstances," would not .. harbor a
significant doubt about the fairness·· of the convening $U-
thority 's post-lJial action. /ioyce, 76 M.J. at 248. However,
Lhc timins.. SJX.,-ciJicity . and unequivocal mHurc of tlle Pres-
idcnL 's day-of-sentencing tweet make it impossible. in my
view, to say this with the certainty required for the g.ovcm-
mcnt to satisfy its .. beyond a reasonable doubt~ burden.
Appellant was entitkd Lo a post-trial convening authority's
action untainted by IICI. See, e.g., /Jan y. 78 M J. at 77-79
(dismissing \\rilh prcjudi<.:c whc:re convening authority·s
post-trial action tainlL'<l by IJCI). As a matter oflaw, al lhc
lime of action in this case, the coovening a.ulhority had the
unfettered discretion to provide appellant with any relief he
deemed appropriate, 11p to and including selling aside the
findings an<l tbe sentence. UCMJ art. {,() (2012). A~ a mat-
ter of fact, appellant ·s chances al yx>sHnal clemency were
not illusory. The active duty Lieutenant Colonel Jtidge/\d-
vocate Preliminai)' I !caring OfJicc'r, who presided over ap-
pcllanL's c.,tcn:;ivc Article 32 proceeding, recommended
rcfciTa.1 of appc;JJant"~ C8.$e 10 a ..straight special» court-
m:mial not empowel'cd to adjudge any discharge, and fur-
ther recommended n(l jail Lime.'' Major General Dahl, who
led a team of over twc'llty invcsLigato,-s and la")'ers during
Lhe pretrial AR I5-6 inve!'>ligation nHo appcllant 's C3$C
likewise indicat~d that jail Lime would be "inappropriate."
In light of these recommendations from s~siior leaders who
lookc'<l closely at appellant's case, tb.e militm)' judge's ul-
tim~11c sc;nlcm.:c wa!-. hardly a windfall, and il wou]d have
been conceivable that the convening. authority co11Jd have
provided additional clemency. Contrary to the majority's
holding, 1 find that UCJ infected that c-ritical post-trial pl'O-
ecss.
*20 Fashioning an appropriate remedy for the p<,sL-trial
UCI. in this case is din,cult, and neither party's propooals
provide this court with much meaningfu.l guidance. The
government has suggested remanding this case Lo a differ-
ent convening authoril)' for (l new action. This could work
in a different scenario, but not here. For example, if a two-
star d1vision e<>mtnan<ler convening authority learned,
prior to action, that his three-star corps commander thought
Iha! tl1c sentence resulting from a coun.-mmtial the divisi()ll
commander referred was a "disgrace- because it was LOO
lenient, the govemmcnt could sin1ply transfer the case to a
new convening authority of high<..-r rank for action. Trnns-
fcning convening authorities in this way could go a long
way toward.s satisfyiog lhe govenunent's burden Lo dis-
prove any actu::il or apparent UCI beyond a reasonable
doubt in such a c;:,sc. 13ut, when the influencer is the Com-
mander-in-Chier, the-re is nowhere lo forward the case, as
any other convc11ing authority would be in the same situa-
tion as the convening authority here. While this is cemuJly
a conundnun for the goveminent. it is nol (his COUJt 's re-
sponsibility lo lh, nor does it change the g,well1lllent 's be-
yond-a-rcasonablc-doubl burden that the Jaw requires.
Appellant, in contrast, requests a remedy of dismissal with
prejudice, and points to liany in which the CAAF imposed
jusl such a remedy for a post-trial UC! violation. 7RM..1. at
79 (noting that UCI remedies "must serve to protect the
court-martial process and foster public confidence in the
fairness or· the military justice sysccm). However, even un-
derstanding that the CAI\F has fashioned UC! remedies
untcthc-rod from the concept or actual prej11dice to an indi-
vidual accused, dismissal wilh prejudice would be a "dras-
tic remedy" here, and is ultimately unwruTaoted. Id. Appel-
lant botl1 pleaded guilty at ufal, and requested that the mil-
itary judge sentence him to a dishonorable dischru-ge.
We are left wilh m) perfect resolution to appellant's case.
Ultimately, lam compelled to look to guidance on remedy
f rom a phase of thts ca~ that occwTcd well prior to th~
President's day-of-sentencing comm1.,,'tlls. and thus was
completely free from any actual or appru·ent IJCI from
those renmks. Specifically, the Article 32 preliminary
hearing officer's recommendation Lh<H appellanCs case be:
referred Lo a "straight special" court-martial nol empow-
ered LO adjudge a discharge, and that jail time would be in-
appropriate, was rendered io October of 2015. lbe AR 15-
6 invcsLig.uting officer. MG Dahl, likcWi$;e recommended
no jail time for appellant during the same Ullle period. Set-
ting aside appdlallt 's dishonorable discharge would bring
his current scn1cncc into line with these two recommenda-
tions, and thus purge the toinl of post-Ina! lJCI that Cllla-
natoo from the President's day-of-scnlcncing tweet.
In sllnuna1y, because l would: (I) find lh"t tho convening
authority's post-trial action was not free from UC I; and (2)
set aside appellant' s dishonorable discharge, l respectfully
dissent from the majorily opinion.

Footnotes

Judge Saladino and Judge Ewing decided this case while on active duty.

Appellant also raised two other assignments of error : fir:.t, that the charges of desertion and misbehavior before the enemy wen~
;m unreasonable multiplication of charges for findings. Second, that military judge erred in finding appellant's guilty plea to the
charge of desertion to be prnvident. We find no error in either the military judge's decision that the chi}(ges were not an unrea-
sonable multiplication of charges ro,
findings, or in his conclusion that appellant's guilty plea was knowing and voluntary, and met
the e~ement$ or desertion to shirk hazardous duty,

' The government produced no evidence that anyone was ever killed searching for appellant. The recotd indic.1tcs that there were
several individuals injured, including setious injuries, while on missions whose primary purpose was to locate appellant, but no
deaths were attributed to these missions.

From arraignment to the announcement of sentence took almost two years. There was a voluminous amount or discovery material,
'
classification and clearance issues, and various delays.

' The government in Lum provided the entire length of the speeches to place the innammatory comments in context. The twenty-
eight minute video was distilled from forty-sOC houtS of speeches.

' It is not clear to whom the President referred. See Footnote 3.

7 The military j udge's ruling addressed appellant's UCI motion in thret? ways: as actual UCI, as apparcnl UCI, and as unf;)ir pre-trial
publicity.

8 The statement appeared to be an adaptation of a 2013 Statement by the Secretaty of Oefcnse Chuck Hagel. That statement was a
"cleansing statement" to address comments made by !>resident Obama on punishments for sexual assault cases.

The military judge made several findings of fact regarding the appellant's election to be tried by military judge alone. The military
iudgc explained, "Under the UCMJ, that means lhal I am the decider of law, finder of fact and sentencing autho,ity in this case. I
have been on active duty for over 29 years. My mandatory retirement date i~ 1 November 2018. 1 have been a military judge for
/l('atly 13 years. I was promoted to Colonel in April 2007. I have no hop~ of or ambition for promotion beyond my current rank. My
only motivation as a military judge i.s .)nd always has been to be fair and impartial and to do justice in every case. I am completely
unaffected by any opinions President Trump may have about SGY 8ergdahl."

lO ·1his Sl..:atement was made in response to 3 reporter's question while SCn<H.or MCC~in w;:is campaigning on beh:c1lf of Senator Lind:;cy
Graham. The statemenl was made after the results of the Article 32 preliminary hearing and prioc to referral.

11 Though the findings of fact state that Senator McCain was chairman of the SASC in January 2014, it was not until January 2015,
when the Republican Party became the majority p;:irty in the Senate. that Senator McC3in became the Chairman.

" Article 2, UCMJ contains a list of "Persons subject to this chapter." Amon,g the V'arious entities listed arc, ..{4) Retired membe(s of
a ,egut.Jr component of the armed forces who are entit~d to pay." UCMJ art. 2. The military judge found thal Seoato, McCain
retired from the Navy in 1981. The military judge made no finding as to the pay status of Senator McCain.

Jl Appellant asserts the fact that the SASC plays an importar1t role in the confirmation of military officers' promotioos and positions,
and that, in the past, Senator McC.iin has threatened to hold up confirmations of military officers, is evidence of UCI. We find the
link between the role of the SASC and issues that Senator McCain may have ht!d with other Army officials and policies speculative
at best. Even assuming orguendo that the comment c:onStitutcd somP. evidence of UCI. we find the government successfully met
its burd~n and ,cmoved any taint with GEN Abrnms' testimony.

" See Executive Order No.13769, Protecting the Nation trom Teflorist entry Into the united St~tcs, 82 Fed. Reg. 8977 (2017).
 In many cases, the remarks made by private citizens before trial may be relevant during voir dire of panel members and in the
analysis of the effect of pretrial publicity. In his ruling the military judge anatyted the campaign remarks as both UCI and their
impact on pretrial publicity. He cotrectly applied the law as set out in Skilling v. United Stutes, 561 U.S. 3!>8.130 S.Ct. 2896, 177
l.Ed.2d 619 (20 10), Irwin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 l.Ed.2d 7S1 (1961), ond Unircd Stares v. Groy, S1 M.J. 1 {C.A.A.F.
1999}; finding it was premature to conclude appellant could not get a rair trial without questioning any member of the venire.

ConerPSs has limited the President's ability to directly fire military officers. See 10 U.S.C. § 116l(a). l he military judge was correct
in rinding the President can take adverse action which could ultimately result in a resignation, retirement, or separation. In the
case of the co,wening authorily, t he President could relieve him of his command which would mQan that GEN Abrams would have
to retire or revert to his permanent grade of major general. See 10 U.S.C. § 601.

17
The military judee explained his conclusion as follows:
The evidence e.stablishes beyond a reasonable doubt that I am uninfluenced by the President's comments and more importanlly,
that I hold no fear of any repercussions from anyone if they do not agree with my sen tence in this case. As their affidavits make
clear, the same is true of GEN Ab-rJms .Jnd COL Berry [the SJA) with respect to their respective post-trial duties in this case. If
that were nol cnoueh, the statement by the President through his press secretary makes clear that he does not expect any
certain sentence in this case and that he does cxpc.ct me and everyo1~e c1sc involved in this case in any way to use our own
discretion and judgment and do what we think is rieht under the law. All judges, including th ose at the Army Court of Criminal
Appeals, are expected an d presumed to know and properly apply the law .

.. The military judge offered to require all tutu re persons involved in the review of appellant's case, including the convening authority
and the j udges on the Army Court of Crimir1al Appeals, to read the rncmocJndum from the White House on M ilitory Justice. The
defense demurred.

19 The government appears to .:ircue the military judge's statement that he wovl<i consider the President's statements as mit igation
evidence, while deliberating on an appropriate sentence, was an appropriate remedy for UCI. If we aireed with the government
that the military judge round apparen t UCI, an d then as a remedy considered the statements as mitigation, we would find that the
military judge did not properly cure the taint of UCI from the trial. As the government misunderstood the military j udge's ruling,
this is not an issue.

The only relief defense requested was for the convening auth ority and SJA to recuse themselves from t he post· tdal process.

21 In comins to this conclusion we considered the fact that the Rules for Courts-Martial are promulgated by the President. See UCMJ
art. 36. w e specified the question of whether the Presiderlt is bound by his own rules. We conclude that thoush the President can
change the rules without a notice and comment period, he would have to arfirmatively make the change either through exect)tive
order or statement of policy and not impliedly after violating one of t he rules. See 5 u.s.c. § 553(3)(1) [exempting rule making
procedures froin "a military or foreign affairs function of the United States").

" The CA.AF noted that the "Secretary of the Air Force is not ... subject to the UCMJ." but accepted the government's "'unequivocal(
I conce[sstonr that the CAAF's apparent UCI jurisprudence applied to its resolution of the case. Boyce, 76 MJ. at 246 n.3.

When ~nalvting this tweet, we note the Cl'n-.urf' ic: of the military judge. l his i s not to minimize the violation of R.C.M. 104(a)(l),
but to recognize that the impact on the convening authority would be different. A tweet directed at the convening authority or
exhorting action (e.g., "Will no one rid me of this meddlesome priest?"} would lead to a different conclusion.

,., General Abrams swore: "all decisioos already made by me and any future ones as the GCMCA a,e within my own discretion based
only on the law and material.s property St)bmitted to me for my review. I will continue to vigilantly guard my independent decision
making as the GCMCA as required under the Uniform Code of Military Justice. My decisions will not be impacted by any outside
influence."

The injured party in this case is the military judge, not appcll.rnt. We do not believe the President's fec-lir.g th3t appellant received
too light a sentence should drive us to then give appellant a windfall of setting aside the sentPnce he asked for and received. That
would be illogic.al and not enhance public perception of the military justice system.

,. The unite-d States military does not take hostages. The record shows that the individuals e.xchangc-d for appellant were members
of a designated enemy force- the Taliban-which were lawful targets. When t hese lawful targets came into the custoay of the
Armed Forces of the United States. they became military detainees- not "hostages.'
 we (e,vicw appellant's sentence for appropriateness pursuant to our Article 66 authority. We con.sider onty the crimes for which
" appcll;:int was round guilty. Appellant pleaded gui1ty and was convicted of desertion to shirk hazardous duty and misbehavior be-
fore the enemy. He wa.s neither charged with nor convicted of being a trnitor. As with the President's earlier statements dcdarine,

,.
chat the individuals released returned lo t he battlefield, there is no evidence in the record supporting this assertion.

Appellant intertwines his atgumcnt alleging Charge II and its specification failed to state an offense with an argument that he was
imprnvident when he pleaded guilty to that charge and specification. Under appellant's theory~ the military judge abused hi-s dis-
c,ction by accepting ilppellant's guilty pica because he did not define "intentional misconduct" as mc,rning in dep~ndentty criminal
conduct w hen he explained the elements of lh<? offense to appellant prior to accepting appellant's plea. For much the same reasons
we conclude the military j udge did not err when he denied appellant's motion to dismiss Charge II and its specification for failure
to state an offense, we also conclude the military j udge did not c:1buse his discretion when he accepted appellant's plea or guilty to
that charge and specification.

During appellant's providenc~ inquiry, the military j udge asked appellant if he had any quest ions about any element of the offense
" or the definit ion of any term the military judge used. Appellant replied in the negative. Appellant further agreed that his actions in
leaving OP Mest without authority constituted intentional misconduct. We therefore reject appellant's claim on appeal that the
military judge abused his discretion by accepting appellant's plea of guilty.

While th~ military judse focus~d on the use of semicolons to separate items i n lists that contain i nternal commas. we note that
'" there are several other p,opcr uses for semicolons. See, e.g., Bryan A. Gamer, The Chicago Guide to Grammar, Usage, ond Punctu-
ation 357-60 {201G}. Ne\fertheless, w e agree with the military judge that the use of semicolon s in Charge II and its specification was
artless, and perhaps improper. Semicolons may be used in "old-fashioned styl e.. to set off a dependent clause or phrase by way of
elaboration o, explanation. fd. al 358. 11, modern use. however, the semicolon wc)Sreplaced in this role b y the dash and the c:omma.
Id.

JI To the extent appellant h as also challenged t he providence of his guilty pica, we find the oature of the charged intentional miscon-
duct was more than adnquately explained to appellant long before he ente,ed his plea. In the r uling denying appellant's m otion to
dismiss Charge II and its specification, the military judge noted that it was grammatically artless to u se semicolons to separate the
three clauses at issue. Nevertheless, he found the meaning of the specification was clear. The military judge explained the three
clauses were alleged conjunctively, as indicated by use of the word "and" between the cl;:tuses. He further explilined: "'These are
dependent clauses that mean: The accused Jett OP Mest alone and without authority and, thereby, w,ongfully caused !,earc.h and
recovery operations." By the t ime appellant pleaded guilty to Charge 11 and its specification, he plainly understood the charged
theory of liability, to which he admitted guilt.

·" The government has contended that the President's actions should be viewed t hrough the " rubdc of Due Process,"' rnther than
through the traditional application or the CAAF's UCI j u,iSp,udence. While I disagtce for the reasol\S stated by the mJjority and
find that R.C.M . 104 applies to the Pre.sident'"s actions here, I furthc, note that even where the CAAF has considered similar argu-
ments aboul civilian authorities influencing courts-martial, it has ultimately applied its t, aditional UO tests. See, e.g., Boyce, 76
M.J. at 246 n.3 {applying UO juriSp(udcnce to act ion s by the Secretary of the Air Force); United States v, Hvtchins, 72 M.J. 294,
312 -13 (2013) (Baker, C.J .• dissenting) {applying Article 37 jurisprudence "through a due process 1eos" to act ions by the Secrelary
of the Navy). T his may ultimately be a distinction without a diCfor~nce, as the CAAF's ua jurisprudence is rooted in the Oue Process
Clause. see /homos, 22 M.J. at 393, 396-97 (citing LO Chapman v. Californ,o, 386 u.s. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 {1967) for
requirement that government must disprove UCI beyon d a reasonable doubt}; Boyce, 76 MJ. at 249 n.8 tdiscussing beyond a
reasonable doubt standard and interplay with due process).

In deed, the CAAF's predecessor court went so rar as to say that t he specter of UCI was why the UCMJ was passed in the first place.
united States v. Fowle, 7 U.5.C.M.A. 349, 22 C.M.R. 139, 142 {1956) ("It was against this sort of command influence (by the Secretary
of the Navy] that the Code was initially directed:').
,. The day-of-sentencing tweet was an official statemer,t from the President, in his capacity as President. See Knight First Amendment
Institute at Columbia Univ. v. Trump, No. 18-1691-cv, 2019 WL 2937440, at '!>, 2019 U.S. App. LEXIS 20265 2, at '19 (2d Cir. 9 Jul.
2019) (slip op.) (..we conclude that the factors p ointing to t he public, non-private nature of the (Presidcl)t's Twitter) Account ... are
overwhelming,... and, t herefote, the ''President ... acts in an official capacity when he tweets").

W hile this could be viewed as appclk1nt "planting"' the i.ssue of post-trial UCI which the court addresses here, it could also be viewed
" as a valid matter in mitigation for appellar1t to inform the convening au thority that the President h{td continued to tweet ~bout his
case, to appellant's obvious detriment. Either way, the relevant issue for our purposes is that the convening authority knew about
 the tweet.

,. lhe specificity and timeliness of the Pr~sident's day--of-sentendng tweet stood in contrast to his prior statements about appellant's
c.ase, which wNc either old,. or of a more general nature, or both.

" I recognize that the Article 32 preliminary hearing officer was not privy to alt of t he facts and circumstances of the parties' sentenc-
ing cases presented at appellant's court-martial, and that he based hi$ recommendation in part on the fact that, at the Article 32,
t he government did not pre-sent any evidence of casualties. However, the Article 32 preliminary hearing officer, as well as the Army
Regulation (AR) 15-6 investigating officer, both conducted thorough and impartial investigations into appellant's behavior which
led to his court-martial proceeding. Thus, their findings and fecommendations remain rclcv.mt.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, FEBBO, and WOLfG
Appellate Military Judses

Sergeant ROBERT B. BERGDAHL, Petitioner

v.
Colonel JEFFERY R. NANCI',, Military Judge,
and
UNITED STATES,
Respondcnh

ARMY MISC 20170114

OROF.R

On consideration of the Petition for Writ of Mandamus filed on 27 February

2017, the petition is D11N1LiD without prejudice to raising these issues again to the
rn ilitary judge as the case develops, to raising these issues on direct appeal, aod to
filing additional pelitions for extraordjnary wri ts, as circumstances may wanam.

WOLFE, Judge, concurring:

l brie n y note two issues raised by the present petition. First, I note the issue
of civi l•military relations wben a military appellate court is asl;.ed to review the
conduct aud .speech of the civilian leaders of the military. Second. I note the
str-u ctural d ifferences in the composition of this Court as compared lo our superior
court. Compare Uniform Code of Military Justice art. 66(a), 10 U.S .C. §866(a)
(20 12) [hereinafter UCMJ], with UCMJ art. 142(b)(2)(B). However, I believe both
of these issues were sufficiently addressed by our superior court in United States v.
llutchin.<, 72 M.J. 294 (C.A.A.F. 2013) (reversing the United States Navy-Marine
Corps Court of Criminal Appeals in a ease involving unlawful command influence
from the Secretary of the Navy). At this early stage of the court-martial, and given
the high burden peri.t ioner faces in obtaining an extraordinar)" writ, I ag.ree with the
Court' s disposition of this petition.

DATE: 13 March 2017

FOR THE COURT:

1!:f.~
Clerk of Court
BERGDAllL-ARMY 20170114

CF: JALS-DA
JALS-GA
JALS-CCR
JALS-CCZ
JALS-CR3
J,\L$-TJ
Petitioner
Respondent

2

Nol Reported in M .,J . Rptr., 2018 \NL 6052748
(N.M.Ct.Crim.App.)
Only the Westlaw citation is currently available.
U.S. Navy-Marine Corps Cowt of Criminal Appeals.
UNITED STATES of America, Appellee
V.
Nhubt1 C. C111KAKA, StaffSergcant(E-6), U.S.
Marine Corps, Appellant
No. 2014()()25 1
Decided 15 November 2018
Appeal from the United S1s1es Navy-Marine Corps Trial
Judiciary> Upon further review following remand from 1he
United S~()(e., Court o/Appealsfi,r the Anned Forces, Mil-
itary Judge: LtCol David M. foncs, USMC.
For AppollMt: Lieutenant Doug Ottenwess;, .IAGC, USN.
For Appellee: Captain B,ian !.. l'arrell, USMC.
B<'forc Fu hon, Crisfield and Hitcsman, Appellate Mililary
Judges
HJLTON, Senior Judge:
• I A panel of officer and enlisted members sitting as a gen-
eral court~martial convic1ed the appellant, oonu-n1)' to bjs
picas, ol' one :.-pccificalion of auempted abusive sexual con-
tact, nim: spt!cification$ or violalion of a general order, one
specification of \VTongl'ul sexual contact. one specification
of abusive sc~,,al conuict, four s-pecilications of obstruction
of justice~ one =->pccification of indecent languag~. and one
spccific<1tion of adultery, in violation of Articles 80, 92.
120, and 134, Uniform Code of Military .Justice (UCMJ).'
The member., sentenced the appellant to touil forfeitw·es,
J'o.!duction to pay gr.idc E- L, 12 y~ars• confinement, and a
dishonorab\e discharp.c. TIit! crnwcning authority approved
lhc scnlonce as adjudged.
I. BACKGROUND
A. Factual baclq:round
The appellant was a rc:;:.eroiter. In the course of his duties.
he met four female high school students who were inlcr-
eslet! in \x,'\Xlming Marines. The appellant sent the girls
thou.sands of inappropriate electronic conununications, and
engaged in unwanted se.xual activity with two of lb.em. The
appellant plied a third girl with alcohol and began an adul-
terous relationship with her. The appellant encouraged the
girls not LO disclose his conduct, and continued to so en-
courage them cwn after his oJJcnscs were rcpo11cd.
8. Tbc llJ)pcllant~s court-martial
We arc now concerned only with the prescntencing phase
of the t11al. During pre.sentencing, the miliLl,ry judge admit-
ted a photograph of the Commandant of the Marine Corps
with n victim's great grandfather, who was receiving the
Congressional Gold Medal at a ceremony. The military
judge also admitted extensive testimony from the appel-
lant 's commanding officer (CO), during which the tnal
oounsel asked U,e CO to explain " how impc>rtant it is to set
:strong example for general dctcrrcnce·1 in the CO's re~
1;1
cruiiing district. The CO obliged with a long response in
which he contrasted the appellant 's o!fonses with less seri-
ous fonns of recruit<..-r misconduct. such a.~ disregarding an
applicant's minor legal troubles or medical issues. The CO
appealed 10 the mc'1Tlbc1·s to award a sentence that dclivc'TCd
a message to other recruiters: that " lilf you do this, every-
thing around you, generally speaking, is going to stop ....
There·s no way to lc.,;sen the blow. lt 's a sigruficant blow."a
During argunlcUl on the scnteuw, the trial counsel re-
minded the members of the CO's testimony, telling the
mcrnbcrs lhal general dclerrence was a ..big is..'>uc... 'Tfbc
COl talkcd about ... the need to S<.'lld a strong message in-
side the Marine Corps, not just to the high schools and the
conumm.ity , but for all the ... recruiters out there right now
. ... "• TTc then asked the members lo award a seotencc tha1
included wn rears' confincmcut. The members awarded
one thai included l2 years' confinement.
C. Appellate hi.story
This c;i.se is before us for a third time. On 24 June 2015, we
set aside U1econvcn.ing authority 's action so (hat the appel·
lant coukl submit clemency matters. Tn his <..-'flsuing action,
the convening authority disapproved confinemmt in excess
of lcn y~a.rs as an act or clemency. A(ter the case was re-
tumcd to us, we considered 13 assignments of error.~ A few
of these a.ssignm~nts of error arc relevant now.
*2 We agfced with the appcll:mt that Lhtcc of the four ob-
stn1ction spccilication:-- rcprc:;i.:ntcd an uoJeasonablc multi-
plicmion of charges, and consolidated them into one spi.:c-
ification. We found that the military judge abused his dis-
cretion under Mil ital} Rule or F.\'idt'nce 401 when he ad-
mitted testimony about the anti-misconduct campaign Op-
eration Restore Vigilance.' We also found that the military
judge abused his di:-crction under Rule fu1 (\)u1is-Ma.rttal
!00 I wh~-n he admitted the testimony from the appellanr s
CO urging a harsh scntcnoc that would provide !(eneral de-
terrence.' We did not fin<l, however> that the militat)' judge
erred by admitting the photograph of the Commandan~ and
we did not !ind that the appellam' s t,-ial had been atlcctcd
by unlawful command influence (UC\).
We reassessed the appellant's sentence, approving a sen-
tence of total forfoitures, reduction to pay grade F.- 1, con-
finement for five years, and a dishonorable discharge.
The Court of Appeals for the Armed Forces (CAAf)
grnnloo re,~ew. That court found that the CO's appeal to
1nembers for a harsh st.'11h.,'11CC constituted :;omc cvi<lcuc..:e of
UC! on the preselllencingportion of !he c:isc.• l n a foob1ote,
the CAAF also wrote that they were "concemcd about the
admission of 1hc Commandam's photograph,- but did not
decide whether admis.,ion of the photograph constituted
solllc cvi<lenet: uf UCL' Before the CAAf > tbc govt..wmcnl
had urged that any prejudice as.i<>Ciat<Xl with possible UC!
had been c1.1ri.:d by our ~l::>:«:..">sm..:nt ,>r th~ aprx.:lhu1t ·s sen-
tence. But the CAAF noted that we had gi-snted relief be-
cause of an unreasonable multiplication of charges and ev-
iden1ia1y eJTors, not UCI." The CAAi' remanded the case
so that we could Jctcn.nioc whG:lhcr the c:)sc was affecled
hy UC! and. if it was, whether any additional sentencing
relief is warranted. 11
We conclude that actual UCI affected the appellant's c•se.
"A'c further conclu<li.: that our earlier relief for unreasonable
multipl ication uf charges and evidentiruy eJTor, though
suhslantial, docs not c<>mplctcly c.xtinguish tl1c possibility
that the appellant was prejudiced by UC I. Weeoncludeth:it
we arc able lO fashion a remedy that cures, beyond a rea-
sonable doub~ any possible prejudice and upholds public
confidence in 1hc prococdings.
ll. DISCUSSION
A. Law applicable lo UCI
The prohibition against UCJ is codified in /\ 111cle 37,
UCMJ, which states in part, ··[nJo person subject 10 this
chapter may attempt to coerce or ... influence the action of
a court-martial or any otl,er military tribunal or any mem-
ber thereof, in rcach,ng the findings or sentence in any
case, or the act.ion of any c<)nvcnins ... authority with re-
spect to his judicial acts."" UCI can be actual or appar<.-nl,
and we review cases for UC! de novo. 11
We understand the CJ\AF 's mandate in this case to require
us to determine whether the appellant's sentence was ot·.
fected by either actual or apparent UC!. The tc,;ts for actual
and apparent lJCI are similar, though not identical.
Under the familiar burden-shilling test announced by the
C/\AF in United States v. Biagose, to prevail on a claim of
•cmal unlawful comm,u,d influence, the appellant must
preliminarily show: (I) facts which. if true. constitute un-
lawful command influence; (2) that die proceedings we-re
unfair; and (3) that the unlawful co1mnand influence was
the cause of the unfairness." The initial burden of showing
potcotial unlawful command in11ucnce is low, bill is more
than mere allegation or spccula11on." ·rhe quanLum or i.:vi-
dence required to raise \nllawful command inJ1ucnoi.: is
"some evidence. ~· 1••
*J Once an is.'5uc or actual unlawful command influence is
raised by some evidence~ the burd(.'tl shifis to the govern-
ment 10 rebut the allegation beyond a reasonable doubt that
(J) the predicate facts do not e~ist; (2) the facts do not con-
stitute un.la.wful command io.flucncc; <)t" (3) the unlawful
command influence did not affoct the findings or :-:.en-
tence. r
We have been specific.ally directed to evaluate the sentenc-
ing portion of ~iis case in light of the CAAF's decision io
United States v. !Joyce." In Boyce, the CAAF announced a
two-pronged Lest ror upparent UCL To prevail, the appel-
lant must show facts, ,vhich if 1n1c. would constitute UCL
Second, he must show that the lJC I placc-d an intolerable
strain on the public's perception of the military justice sys-
tem because an objective, disinterested observer, i'ully in-
formed of all the facts and circum,1anoes, would harbor a
significant doub1 about the fairness of the prooecdit1~."
The Boyce court set forth an analytical framework for
courts to use in applying this ~tandard. First, an appellant
must show some evidence that UCl occu1Tcd!" This is a
low burden, but the showing must consist of more than
"mere speculation.,,~,
Once im appellant prc~n.L:s some evidence of UCI, lhc bur-
den shif\s to the govenunent to prove beyond a reasonable
doubt that "either the predicate facts proITered by the ap-
pellant do not exist, or the facts as presented do not consti-
tute unlawfol comm:md influence. •-:! ff the govcmJJ'lCTll
meets lhi~ burden, no fw1her analysis is necc::;sary.:i
" If the govenunenl does not meet it~ burden of rcbuuing
the allegation at this lllilial stage. lhcn the govemmcnt may
next :;eek to prove beyond a reasonable doubt that the un-
lawful co1mnand influence did not place ·an in1olcrablc
strain · upon the public's perception of the military justice
,,.stem and that 'an objective disinterested observer, fully
infonncd or all lhc fact~ and circuLnsto.nccs, would not har-
bor a significant doubt about the fairness of the proceed-
ing."" "/\ determination the appellant was not personally
prejudiced. or 1ha1 the prejudice caused by the UC l was
later cured, is .:.1 ::;ip.o.ificant factor to which we must give
considerable weight when deciding whclhc'f the UC!
placed an 'intolerable strain' on !he public's perception of
lhe milit..:u)' justice $)'stem.''!$ Out such a dctcnnination is
not dispositive. Rather, we will consider the totality of the
evidence ,n evaluating allcgod appan.'llt UC!."
B. Application of law to the appellant's case
J. Actual UC!
In this case, the CA.Ar has already determined Ihat the rec-
ord contains some evidet1ceof lJCI in the form of the CO's
testimony. This satisfies 1hc fir,;1 prong of the tests for ac-
tual UCL TI1e CAAF has also difl.'Ctcd us to consider
whether U1e admission of the Commandant's picture also
constitutes some evidence of \JCI. The government argues
that the picmre is relevant aggravation evidence because it
"corrobomted ILl1e victim's] testimony thaL, though her
great grandfalhcr was a ·1arge part' of why she _1oined the
Marine Corps, she was unable 10 talk to him about what
happened 10 her."" Rut it was not clear to the C/\/\F-and
it is not clear lo u:;-how the picture serves lhis purpose.
The CAAr found that admission of the picture "raises the
specter of the Govcn.uuent improperly inserting 1he Com-
mm1d.an1, ll1to tbe deliberation room:·n We find that it con·
stitutes some c\•i<lence of UCl .
1'"4 This brings os to the second step of the analysis unde,-
/Jiagose io which the govcmmcnt must demonstrate be·
yond a reasonable douht that either the predicalc fact, do
not exist or th~L the facts as presented do not coostitulc
UC!. The government argues Lhat given the pruccdw-al pos-
ture of this case. the predicate facL~ no longer exisL We
have already reassessed the S<-'lll<-~1cc, and accounted for the
erroneous admission of the CO's testimony. TI1is, accord-
ing to the government, "had I.he prnctical and legal effect
or removing the Lestimony from consideration for [Lbc aJ>-
pdlani' s] approved sentence," thereby eliminating I.he
predicaLc facts supponing the UC! allcg,aLion." We, how-
ever, do noL agree lb.at we should accept our initial ,;en Lenee
rea~;;essment as definitively eliminating the predicate facL~.
The CO's testimony was prcsemed and considered by Lhe
memb<.-rs, and it represents at leasl some evidence or UC!.
The C/\/\F has directed us to use the applicable lJCJ frame-
work to dc.tennine whet.her the proceedings were aft"ectcd
by \JCI. Our eru:lier reassessment under United States v.
Sales was appropriate lo our initial conclusion. Blll we are
nol inclined lo rdy oo that rcasscsstUent to sati~fy
Biagose' s second prong. Additionally. the CA/\f directed
us to consider whether the admission of the picture of the
victim ·s great grandfather with the Commandant prcju.
diced the appeUant by insc-rLing the Commandant into the
deliberation room. We did not consider the admission or
this picture in our previous sentence reasses..~mcnt. We
therefore cannot rely enlin.:ly on our earlier analysis to de-
termine thaL Ihc prc-dicate facts do nol csist.
We are also not convinced beyond a reasonable doubt tl1aL
the facts as presented do not constitute UCL To the con-
trary , the gov(.,·mmcnt introduced I.he testimony of the ap-
pcllanl ·s commanding officer, who appealed directly to Lile
mc·mbcrs (one of whom was his subordinate) for a llarsb
Sc'lltencc. This constitutes actual UC!. " Similarly, the gov-
cniment has no! convinced us beyond a reasonable doubt
that the inLrnduction of the Commandant's picture did not
insert the Commandant into the deliberation room. We will
therefore proceed to 1he third step of tl,c analysis.
The thmi step requires us lo dctcnnine whether the unJaw-
ful command innucnce affected the sentence." The burden
is ou the government to show tx...--yond a reasouable doubt
thaL the convening authority's and ow· modific.;itions of the
appellant's scn1ence have cleansed 1hc record of tl1c taint
of actual and apparent UC!.
To reach our couc[usion we weigh the nature and scvc1ily
of the UC! aod the magnitude of our earlier sentence mod-
ification. " We find I.hat the UC! in this case had the capac-
ity to do some. but not catastrophic mischief. Addressing
first the commanding officers testimony, we find Lh:ll the
inronnation presented in the erroneously admitted testi -
mony would have been known 10 I.he members. The panel
included a Marine with ten years· rcctuiLing experience.
Thal Lhc appdlan\'s serious offenses, which included sex-
ual assault, were paruculatly egregious wh(.-rc the accused
is a recruiter and the victims were young and vulnerable
powntial recruits would have been appreciated by the panel
without the CO' s testimony. The appropriateness or a sen-
tence I.hat supported g(.-oeral deterrence would also have
suggested 1Lscli' wil11out the CO having rcqt1csted it, and
doubtless the trial counsel would have argued tl1c same
pomt
/\s for the picture or the Commandant, we find that any
UCI a:;.;;ociatcd with the picture's admissi()Il would h:.w e
been ks:; substantial than that of the CO's tcsLimcmy. The
picture was nol accompanied by any text or information
that could be seen as directing n particular result .in this
case. The appc11anl argues 1hat the pictur(; acted as a con-
duil lo lhe Cotnmandanfs "'Heritage Tour;· 1i and s1,,,-rvOO 10
remind the member~ of ex.poctations the Commandant ex-
pressed al Lhal (imc. The CMP. however, has found that
the record contains no evidence lhal Lhe Heritage Tour has
affected this case. We agree.
A gainsl the prejudice 11urihutable to UCl we must balance
the significant reduction in lhc appcJJtull ·$ sentence ,vc
have al.ready awarded. The members awarded twelve
ye,irs · confin~"llK"lll, and the CA reduced that amount to ten.
ln ordct to remedy an unreasonable mulliplic:.il ion of
charges and erronot>u.~ly admitted scnlcncing testimony
(including the CO's lcstinu..my )> we approved only five
years-a reduction of nearly 60 percent of the appellant's
awarded sentence.
•s Although this reprc~'OlS a substantial reduction, we did
not anivl! at 1.hat dctcm1inalion by evaluating Lhc sentence
under Boyce o r any other relevant I IC! precedent. Nor did
we consider the admission of the Commandant)s picture as
actual or appan:n1 UC I in arriving al a rem~dy. Although
our initial remedy was nol calculated :;pecificaUy to ad-
dress I !C l. we arc convinced that we can fashion a remedy
that ensures beyond • reasonable doubt that any taint fmm
UCI has been eliminated. We arc convincc<l beyond a rea-
sonable doobt that a sentence extending to total forfeitures.
reduction to pay sratlc E-1 . four years· c-0nl1nement, and a
dishonorable discharge removes any poss;bilily that tbe ap-
pellant remains pn:judicc<l by UCL
Tb.c first lwo steps of the analysis arc identical to those in
Biagase. Again. we note thal the CAAF hi:1S determined
lhat the record contains wmc evidence of UC I and U1at the
government is not able to rebut this evidence by demon-
strating that the prcdic,1te facts do not exist, or that that they
do not constilUte UCL
The third step or the analysis under Boyce requires us to
tlclennine whether the wllawful command influence placed
"an intolerable strain.. upon lhc public·s perception of the
n,ilital)rjustice system and whether "an obj1,,,-ctive disinter-
ested obse,ver, fully infonned of all the facts and circum-
stances, would not harbor a significant doubt about the fai r-
ness oflbe proceeding."" We have already deteonincd lhal
we con remedy the aclu,,l UC! in this case and eliminated
its prejudice to the appellant. While an absence of prejudice
to the appellant docs not conclu,,;vcly demonsliatc the ab-
sence of apparent IICl. it is a factor to which we auach
considerable weighL n 'Jiic are convinced beyond a rca:;t;m-
ablc doubt lluu 1he remedy w1.: have providod for actual
UC! would leave a fully informed observer satisfied that
the appellant's proceedings have been fair.
lll. CONCLUSION
The findings having been previously approved by the
CAA.F, we approve only so much of Lhc sentence a.sex-
tends to total forfcilUres, reduction to pay grade E-1, four
years' confinement, and a dishonorable discharge arc ap-
provi;;t.l.

2. Apparent OCI
Judge IUTESMAN and Judge CRISFIELD concur.
We next consider whether the case is affocl~-d by apparent
UCI using the framework 1.bc CAAF announced in Boyce.

Footnotes

10 U.S.C. !!§ 880, 892, 920, and 934 (2012).

Record at 871.

3 Id. at 872.

Id. at 892•93.

See generally United States v. Chikoka, No. 201400251, unpub. op. (N-M . Ct. Crim. App. 12 Apr. 2016).

C MILITARY RULE OF EVIDENCE (M IL R. lVI D.) d0 3, MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.),

1 RUtE FOR COURTS.-MART!At (R.C.M.) 1001, MCM, UNITED STATES (2012 ed.).
• United States v. Chikaka, 76 M.J. 310,313 (C.A.A.F. 2017) .

• Id. n.S.

,o Id. at 314.

11
Id.

12 10 u.s.c. s 83 /(a) {2012).

ll United States 11. Harvey, 6'1 MJ.13, 19 (C.A.A.F. 2006).

50 MJ. 143, 150 (C.A.A,F.1999}.

un,ted State.< v. Stoneman, 57 M.J. 3~. 41 {C.A.A.F. 2002; .

•• United States v. Ayolo, 43 MJ. 296,300 (C.A.A.f. 1995).

l7 Biogase, SO M.J. at 151.

/6 M.J. 242 (C.A.A.F. 2016).

Id. at 249.

'° Id.

2l Id. (quoting United Stores v. SolyPr, 72 MJ. 415,423 (C.A.A.r. 2013) }.

22
Id.

" Id.

Id. at 249-50.

Id. at 248, n 5.

,. Id. at 249.

27 Government's Brief at 16.

28 7G MJ. at 313 n.5.

Government's Brief at 14-15.

30 United Stute< v. Cherry, 31 M.J. 1, S (C.M.A. 1990).

8iagasc, 50 M.J. at 151.

" See United States v. Harvey, 64 M.J. 13, 21 (C.A.A.F. 2006).

33 See United States v. Easterly, No. 201300067, unpublished op. {N·M. Ct. Crim. App. 31 Jan 2014) {describing the Commandant's
 "Heritage Tour' and the related effott to curb indiscipline in the Marine Corps).

" Boyce, 76 MJ. at 249 (quoting Salyer, /2 MJ. at 423).

Id. at 248, ,, . S.
 Article 37(a), UCMJ

§837. Art. 37. Unlawfully influencing action of court

(a) No authority convening a general, special, or summary court-martial, nor any

other commanding officer, may censure, reprimand, or admonish the court or any
member, military judge, or counsel thereof, with respect to the findings or sentence
adjudged by the court, or with respect to any other exercise of its or his functions in
the conduct of the proceeding. No person subject to this chapter may attempt to co-
erce or, by any unauthorized means, influence the action of a court-martial or any
other military tribunal or any member thereof, in reaching the findings or sentence
in any case, or the action of any convening, approving, or reviewing authority with
respect to his judicial acts. The foregoing provisions of the subsection shall not apply
with respect to (I ) general instructional or informational courses in military justice
if such courses are designed solely for the purpose of instructing members of a com-
mand i11 the substantive and procedural aspects of courts-martial, or (2) to statements
and instructions given in open court by the military judge, president of a special
court-martial, or counsel.

Article 85(a)(2), UCIVIJ

§885. Art. 85. Desertion

(a) Any member of the armed forces who- .. .

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty
or to shirk important service; . .

is guilty of desertion.

Article 99(3), lJCMJ

§899. Art. 99. Misbehavior before the enemy

Any member of the armed forces who before or in the presence of the enemy- . ..

(3) through disobedience, neglect, or intentional misconduct endangers the safety of

any such command, unit, place, or military property; ...
shall be punished by death or such other punishment as a court-martial may direct.

Ru le for Courts-1\'lartial 104

Rule 104. Unlawful command influence

(a) rreneral prohibitions.

(1) Convening authorities and commanders. No convening authority or commander
may censure, reprimand, or admonish a court-martial or other military tribtmal or
any member, military judge, or counsel thereof, with respect to the findings or sen-
tence adjudged by the court-martial or tribunal, or with respect to any other exercise
of the functions of the court-martial or tribunal or such persons in the conduct of the
proceedings.
(2) All persons subject LO the code. No person subject to the code may attempt to
coerce or, by any unauthorized means, influence the action of a court-martial or any
other military tribunal or any member thereof, in reaching the findings or sentence
in any case or the action of any convening, approving, or reviewing authority with
respect to such authority's judicial acts.
(3) Exceptions.
(A) instructions. Subsections (a)( I) and (2) of the rule do not prohibit general
instructional or informational courses in military justice if such courses are designed
solely for the purpose of instructing personnel of a command in the substantive and
procedural aspects of courts-martial.
(B) Court-martial statements. Subsections (a)(l) and (2) of this rule do not
prohibit statements and instructions given in open session by the military judge or
counsel.
(C) Professional supervision. Subsections (a)(l) and (2) of this rule do not
prohibit action by the Judge Advocate General concerned under R.C.M . 109.
(D) Offense. Subsection (a)(l) and (2) of this rule do not prohibit appropriate
action against a person for an offense committed while detailed as a military judge,
counsel, or member of a court-martial, or while serving as individual counsel.

(b) l'rohibitions concerning evaluations.

(l) Evaluation <>/member, defense counsel, or special victims' counsel. In the prep-
aration of an effectiveness, fitness, or efficiency report or any other report or docu-
ment used in whole or in part for the purpose of determining whether a member of
the anned forces is qualified to be advanced in grade, or in determining the assig11-
mentor transfer of a member of the anned forces, or in determining whether a mem-
ber of the armed forces should be retained 011 active duty, no person subject to the
code may:
(A) Consider or evaluate the perromrnnce of duty of any such person as a
member of a court-martial; or
(B) Give a less favorable rating or evaluation of any defense counsel or special
victims' counsel because of the zeal with which such counsel represented any client.
As used in this rule, "special victims' counsel" are judge advocates who, in accord-
ance with 10 U.S.C. 1044e, are designated as Special Victims' Counsel.
(2) F,valuafion ofmilitary judge.
(A) General court.~-martial. Unless the general court-martial was convened
by the President or the Secretary concerned, neither the convening authority uor any
member of the convening authority's staff may prepare or review any report con-
cerning the effectiveness, fitness, or efficiency of the military judge detailed to a
general court-martial, which relates to the perronnance of duty as a military judge.
(B) Special courts-martial. The convening authority may not prepare or re-
view any report conceming the effectiveness, fitness, or efficiency of a military
judge detailed to a special court-martial which relates to the peiformance of duty as
a military judge. When the military judge is nonnally rated or the military judge's
report is reviewed by the convening authority, the manner in which such military
judge will be rated or evaluated upon the performance of duty as a military judge
may be as prescribed in regulations of the Secretary concerned which shall ensure
the absence of any command influence in the rating or evaluation of the military
judge' s judicial performance.