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Court of Appeals for the Armed Forces holds that at least “reckless disregard” is required to violate a lawful general order, an Article 92 violation.

On March 8, 2016 the Court of Appeals for the Armed Forces (CAAF) overturned a decision made by Army Court of Criminal Appeals (ACCA) in United States v. Gifford.  This decision is important because it will shape future Article 92 allegations which are commonly charged at courts-martial.  This decision will require the government charging an Article 92 violation to prove not only that an order was violated by the accused, but that the accused had some sort of intent or “reckless disregard” when he violated the order. In United States v. Gifford, Specialist (SPC) Gifford, a 29 year-old hosted a party at his barracks room.  He served alcohol there and some of the drinkers were under 21 years of age.  At that time of the party, there was a general order in place that stated no soldier over 21 years of age may serve alcohol to a person under 21 years of age.  At trial, the military judge concluded, with the agreement of the defense and prosecution, that in order to show a violation of this order, the government must prove that SPC Gifford knew that those individuals he provided alcohol to were under 21 years of age.  After being convicted of this offense and others, SPC Gifford appealed to ACCA.  ACCA overturned another conviction based on factual insufficiency, and in their opinion commented that with regards to the distribution of alcohol to minors Article 92 violation, the military judge did not have to hold the government to this high standard of proving that SPC Gifford knew those receiving the alcohol were under 21.  ACCA concluded that the general order did not require that he knew their age and therefore imposed strict liability for such distribution of alcohol.  This was appealed to CAAF and CAAF disagreed with ACCA.  CAAF, in the opinion, highlighted that proof of “mens rea” (intent), is the rule in crimes, not the exception.  CAAF held that the proper standard that ACCA should have applied was “recklessness.”  In other words, the Court should have reviewed the conviction to determine “whether appellant acted with reckless disregard as to whether the individuals to whom he was providing alcohol to were under twenty-one years of age.”  ACCA’s decision was therefore reversed and the case was remanded.  This case shows that courts disagree.  In this case the military judge, ACCA and CAAF all applied a different standard to this Article 92 offense with regard to the required intent on the part of the appellant.  Appellant would not have learned that this was such a worthy appeal, if he had not pursued the appeal.  I have a huge amount of experience litigating at the court-martial and appellate level.  If you do not know whether you have a worthy appeal, you need to call me.  I have the experience to review your record of trial and set you on the right course.  An appeal of your court-martial conviction could change everything.  Call now, don’t wait.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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