REVIEW: “So You’re Telling Me There’s a Chance”: Why Congress Should Seize the Opportunity to Reform Article 37 (UCI) of the UCMJ—Colonel John Loran Kiel, Jr.
In an article circulated recently on SSRN’s new Military Law listserve, Col. John Loran Kiel, Jr. argues for an amendment to the text of Article 37 of the Uniform Code of Military Justice (UCMJ) to rectify what he considers a series of inconsistent opinions in the unlawful command influence (UCI) jurisprudence. His analysis of the case law centers on the decisions in Barry and Boyce, both high profile sexual assault cases, exploring the extent to which they show inconsistencies in the way the court has tended to weigh factors like the mantle of command authority and prejudice to the accused in actual and apparent UCI claims. Col. Kiel proposes to rectify these inconsistencies by amending the text of Article 37 to explicitly overturn these holdings.
First, Col. Kiel begins his analysis with a brief overview of the history of the court’s UCI jurisprudence, focusing special attention on the decision in Barry and what he identifies as case law contradictions it has created regarding intent in actual UCI claims. The facts of Barry are discussed at greater length in a previous article by Col. Kiel—titled, in keeping with the theme of pop culture references, “They Came In Like a Wrecking Ball”—but to summarize, concern the case of a Navy Seal convicted at a general court martial of forcing his girlfriend to engage in anal sex. The convening authority felt that the trial judge had committed numerous errors that prejudiced the sailor’s right to a fair trial, but alleges that he approved the findings and the sentence of the trial court under the unlawful influence of the Deputy Judge Advocate General (DJAG) of the Navy. The problem with this, on Col. Kiel’s analysis, is that the precept of the “mantle of command authority”—that is, the actual authority of commanders over officers—had played a central role in nearly all UCI claims until this case.
Second, Col. Kiel turns his attention to the rule in Boyce, which he argues has muddied the waters in UCI doctrine regarding the need to show prejudice to the accused in order to prevail on a claim of apparent UCI. In Boyce, an Airman was convicted of raping his wife in violation of Articles 120 and 128 of the UCMJ, and the court proceeded to determine whether the GCMCA had been subjected to UCI by the Air Force Chief of Staff without assessing prejudice to the accused. Col. Kiel then proceeds with an examination of CAAF’s UCI jurisprudence to show that this is a significant departure from precedent. According to Col. Kiel’s review, the court has always assessed apparent UCI claims for prejudice to the substantial rights of the accused.
To address these two problems, Col. Kiel proposes two amendments to Article 37 to insert “and acting with the mantle of command authority” after the phrase “No person subject to this chapter,” and to include a paragraph explicitly stating that a finding or sentence of a court-martial may not be held incorrect on grounds of UCI without material prejudice to the substantial rights of the accused.
However, Col. Kiel may be overstating the impact of Barry, and we might be able to limit the holding the facts of the case, making his first proposal unnecessary. Usually, the party who raises a UCI claim is not the authority who was unlawfully influenced, but the defense. As the court acknowledges, “[i]t is not every day” that a convening authority does this, and granted review of the issue of whether the DJAG could commit unlawful command influence “[a]s a result of this unusual admission.” 78 M.J. 70, 72-73.
The court also makes a point of noting that the DJAG is the second highest ranking Navy Judge Advocate General’s Corps (JAGC) officer, despite not having command authority, a subtlety that might be lost on a reasonable member of the public, whose faith in the integrity of the military justice system is the object of the apparent UCI analysis. Here, a reasonable member of the public might believe that unlawful command influence had occurred where the authority alleged to have been unlawfully influenced alleges it himself. This is especially true where the officer alleged to have unlawfully influenced him is a senior military official, even when the influencer does not do so with the mantle of command authority. In light of these special circumstances, it is conceivable that the court could limit the holding in Barry to the facts of the case.
ACCA in fact distinguished Barry the following year, holding that apparent UCI need not be found even when the influence in question came from the commander in chief of the United States. “When comparing the facts here to those in Boyce and Barry, we are struck by differences between cases where individuals reached out to the convening authority and the SJA instead of a case like appellant's, where the comments were brought to the attention of the court by the defense itself.” United States v. Bergdahl, 79 M.J. 512, 524 (A. Ct. Crim. App.), review granted, 79 M.J. 307 (C.A.A.F. 2019). It is conceivable that a fact pattern that comes before the court “not every day” would be disposed of with a ruling not seen every day either. Barry may present not an exceptional rule but only an exceptional fact pattern.