1. On 17 December 2020, ACCA reviewed United States v. Felton, setting aside Private First Class Andre J. Felton’s Specification 5 of Charge II conviction, for using disrespectful language toward a noncomissioned officer (NCO) in violation of Art. 91(3), UCMJ.[i]
Felton opinion here.
2. On 27 March 2018, Appellant and SSG BS, who had never met prior to the controversy, were on training rotations with different companies at the Joint Base Readiness Center in Fort Polk, Louisiana. SSG BS, whose uniform blouse and patrol cap displayed his rank, observed Appellant with a cigar in his mouth and a crooked patrol cap from approximately twenty feet away. While SSG BS and Appellant were walking toward each other, SSG BS yelled from across the street for Appellant to take the cigar out of his mouth and fix his cap. Appellant replied, “Why do I have to do that, Sergeant?” and “I don’t think it works that way”. In response, SSG BS crossed the street where an unpleasant exchange ensued, and Appellant walked away while SSG BS was talking to him.
3. Based on the exchange between Appellant and SSG BS, Appellant claims that his conviction of disrespectful language to a NCO should be set aside because there is no proof of his “actual knowledge” that SSG BS was a NCO. The court reviews Appellant’s argument de novo and analyzes factual [ii]and legal sufficiency of the language and behavior. [iii]
4. The test for factual sufficiency is a de novo review with a burden of “beyond a reasonable doubt.” The test for legal sufficiency is also reviewed de novo, analyzed under the following factors:
(1) the accused was an enlisted member; (2) the accused did certain acts or used certain language; (3) such behavior or language was used toward and within sight or hearing of a certain NCO; (4) the accused then knew that the person toward whom the behavior or language was directed at was a NCO; (5) the victim was then in the execution of office; (6) that under the circumstances of the accused, by such behavior or language, was disrespectful to said NCO; (7) the victim was the superior NCO of the accused; and (8) the accused then knew that the person toward whom the behavior or language was directed was the accused’s superior NCO. [iv]
Additionally, ACCA considered disrespectful “words or language," and that "[d]isrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language." [v]
5. After considering the facts and circumstances, including Appellant’s use of the title “Sergeant,” ACCA held that Appellant’s factual insufficiency argument failed. However, in consideration of the eight elements of legal sufficiency, ACCA held that Appellant’s behavior and language were legally insufficient because it did not rise to the requisite level set forth in the elements of legal sufficiency as promulgated by the President and case law. [vi] In finding that Appellant's conviction was legally insufficient, the court noted that Appellant's language was not abusive, nor was it laced with profanity.
6. ACCA set aside and dismissed Specification 5 of Charge II, and affirmed the findings of guilty for the remaining charges. Considering the “totality of circumstances” and the Winkleman factors, [vii] ACCA confidently reassessed Appellant’s sentence rather than remanding it. Determining that setting aside Specification 5 of Charge II had no impact on Appellant’s maximum sentence exposure, ACCA affirmed the sentence adjudged at Appellant's courts-martial. [viii]
[i]ACCA based its holding on the government’s concession rather than Appellant’s asserted factual insufficiency and cites Mitcham, [2017 BL 32617], 2017 CCA LEXIS 64 at *7-9
[ii]Washington, 57 M.J. at 399.
[iv]Manual for Courts-Martial, United States (2016 ed.)[ MCM ], pt. IV, ¶ 15.b. (3).
[v]MCM, pt. IV, ¶ 13.c. (3).
[vi]Citing: cf. United States v. Mitcham, ARMY 20140969, [2017 BL 32617], 2017 CCA LEXIS 64 , *3-.5 (Army Ct. Crim. App. 30 Jan. 2017) (mem. op. on recon.) (finding the appellant's violation of Article 91 factually sufficient based on words to the effect of "Fuck this shit, I'm not going to sign this because this is basically bullshit, sir" during a counseling session).[Paraphrased from brief]
[vii]United States v. Winckelmann, 73 M.J. 11 , 15-16 (C.A.A.F. 2013).
[viii]The panel sentenced appellant to a bad-conduct discharge, confinement for ninety days, forfeiture of $1,120.00 pay per month for three months, and reduction to the grade of E-1. Due to dilatory post-trial processing, the convening authority reduced appellant's sentence of confinement from ninety to sixty days and otherwise approved the sentence as adjudged.
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