Article 32

[rhmorris]

undefinedundefinedWhat is the name of your state? Miss

I am doing an Article 32 Investigation. I have no idea how to carry this out I need help with a few questions. Can the punishments of two charges be combined together by adding or does his punishment of the two charges run under the same time?

 

[badapple40]

undefinedundefinedWhat is the name of your state? Miss

I am doing an Article 32 Investigation. I have no idea how to carry this out I need help with a few questions. Can the punishments of two charges be combined together by adding or does his punishment of the two charges run under the same time?

What do you mean "doing"? Are you the Article 32 hearing officer? Or are you the accused being subjected to an Article 32 investigation?

And by punishment of two charges, you could be talking multiplicious charges, e.g. crimes running out of the same set of facts with same elements (e.g. assault and aggravated assault). In any event, the military does not utilize the idea of concurrent v. consecutive sentencing. There is one sentence, that imposed by the members, who may give whatever credence they want to the charges insofar as they are multiplied with each other.

Your question is too vague for me to give an answer to really. Try answering these questions and I'll get back to you with some answers:

What do you mean "doing"?
Are you the Article 32 hearing officer?
Or are you the accused being subjected to an Article 32 investigation?
What is your role in the Article 32 hearing?
What are the charges?
What occurred or is alleged to have occurred that gave rise to the Article 32?
What testimony has been taken or is being offered at the Article 32 hearing consistent with the allegations?
What testimony has been taken or is being offered at the Article 32 hearing inconsistent with the allegations?

 

[rhmorris]

Details

My duty is to be the investigating officer over a PFC, whom is under going an Art. 32 for charges under the UCMJ Art. 86 and 112a.

 

[badapple40]

And you want to know what the maximum punishment he faces if convicted of both -- I presume for purposes of recommending to the convening authority the proper forum, correct?

By the way, the SJA's office IS available for you to ask these questions as the IO.

The Article 86 offense (AWOL) is NOT the same as the 112a (wrongful use of a controlled substance). So you would add the max time for each to get the overall maximum sentence.

Typically, a special court-martial is ordered for these types of offenses empowered to order a BCD.

Some things that may knock it up to, and warrant, a general court-martial, however, include the aggravating factors of either the AWOL or the introduction of the substances onto a military installation, sale, distribution, etc.

Did you look at the Manual for Court-Martial for the maximum offenses?

Article 112a, MCM (2002):

e. Maximum punishments.
(1) Wrongful use, possession, manufacture, or introduction
of controlled substance.
(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 5 years.
(b) Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(2) Wrongful distribution , possession, manufacture, or introduction of controlled substance with intent to distribute, or wrongful importation or exportation of a controlled substance.
(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I,
II, and III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(b) Phenobarbital and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for
10 years.

When any offense under paragraph 37 is committed;
while the accused is on duty as a sentinel or lookout;
on board a vessel or aircraft used by or under
the control of the armed forces; in or at a missile
launch facility used by or under the control of the
schedule

Article 86, MCM (2002):

e. Maximum punishment.
(1) Failing to go to, or going from, the appointed place of duty. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month.
( 2 ) Absence from unit, organization, or other place of duty.
(a) For not more than 3 days. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month.
(b) For more than 3 days but not more than 30 days. Confinement for 6 months and forfeiture of two-thirds pay per month for 6months.
(c) For more than 30 days. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
(d) For more than 30 days and terminated by apprehension. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months.
(3) From guard or watch. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.
(4) From guard or watch with intent to abandon. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
(5) With intent to avoid maneuvers or field exercises. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

You need to see what aggravators (e.g. AWOL over 30 days, terminated by apprehension) are present to determine maximum sentence. Let me know if you need more help, by responding, or by PM.

--badapple, LTC, JA, USAFR

 

[rhmorris]

Another Question

May the accused waive the pretrail investigation and what effect does this have on the commanders who authorize the investigation?

 

[badapple40]

May the accused waive the pretrail investigation and what effect does this have on the commanders who authorize the investigation?

Of course the accused can waive the investigation. You REALLY need to sit down and read the manual for court-martial or go talk to the SJA's office for legal adviace. What does RCM 405(k) say?

In any event, waiver can result in: 1) Proceeding without the accused being there (if the convening authority/SJA wants an investigation into what went on and what he has a basis for referring to court-martial or the possibility of discoverying additional charges to bring); 2) Referral of all charges and specifications without a hearing (if the convening authority/SJA figures they have enough for trial and don't need an investigation).

 

[rhmorris]

Thanks

I appreciate all your help. Sorry for being lazy about all of this. I am just busy with other business.

 

[badapple40]

I appreciate all your help. Sorry for being lazy about all of this. I am just busy with other business.

You are probably a Major (potentially a Captain) and possibly a LTC -- and, while I understand that you are busy, I am sure the detailing memorandum directed to you to review both Article 32, UCMJ, and RCM 405. Of course, also viewing the MCM for the substantive offenses is also a good idea.

Do you not think that, prior to conducting a fairly important investigation that is likely to affect a young man or woman for the rest of his or her life, you can find the half hour or so it takes to familiarize yourself with the appropriate directives, law, and procedures associated with the gravity of conducting an Article 32 investigation?

You can bet that the prosecutor and defense counsel detailed to the case will spend that amount, and more, preparing. The least you can do is do a bit of homework. I am willing to help you out, but I cannot tolerate your carrying out this very solemn duty in a manner that could result in a miscarriage of justice on account of your "laziness" because "other stuff" has your attention.

We all realize the Army's/Marine Corps primary job is to kill people and break things -- and that your "other stuff" keeps you occupied. But Congress, and by implication the Constitution -- that document you have promised and sworn to uphold and defend on more than one occasion, has deemed it necessary to afford military accused certain protections and rights -- and a key component of those is the right to an Article 32 hearing that is conducted properly and affords the accused due process.

 

[Davidzill]

I think we are dealing with one of those officers who is a 10%'er who slipped through the cracks. I feel sorry for the PFC being investigated.

 

[rhmorris]

I appreciate your tackfulness. The was the first place I went to as soon as I got the charge sheet. This was my first investgation, and yes I am a Captain. I will be sure to give the PFC all of my intention. I receive help from the judge advocate and have went through the MCM, RCM, and Procedural Guide. Sorry for asking some advice before I got started. I did not know that made me 10% officer, and I would believe my men would greatly disagree with you.

 

[badapple40]

I appreciate your tackfulness. The was the first place I went to as soon as I got the charge sheet. This was my first investgation, and yes I am a Captain. I will be sure to give the PFC all of my intention. I receive help from the judge advocate and have went through the MCM, RCM, and Procedural Guide. Sorry for asking some advice before I got started. I did not know that made me 10% officer, and I would believe my men would greatly disagree with you.

Good. The SJA's office is there to help you. And like I said before, if you go through matters and don't understand something like the MCM, I'm more than willing to lend you a hand. Also, like I said, anyone who has been on active duty, or at least anyone who has been a judge advocate on active duty, understands that commanders and officers in general have a lot more going on than military justice. My take on it, however, is that when those issues arise, especially when you are talking about an Article 32 hearing that is typically the precurser to a general court-martial, typically with several years in the brig or USDB and a dishonorable or bad conduct discharge at stake, it should be a top level priority (and to be fair, the convening authority DOES want to move on those charges). I've been a SJA, been a trial counsel, been a defense counsel, been detailed as a military judge, and now am an appellate defense counsel. I "get" where commanders come from (as an SJA I was the commander of the legal office and before I went on FLEP was in maitenance in charge of a couple hundred airmen). I've also been a 32 hearing officer in about 30 cases.

Something else to consider is that this PFC may well be confined -- and if so the RCM speedy trial clock is running -- so getting this done right, and quickly, is a concern.

 

[rhmorris]

Question

In determining if the charges in this case, under the UCMJ, what would be some examples of essential elements of the charges?

 

[badapple40]

In determining if the charges in this case, under the UCMJ, what would be some examples of essential elements of the charges?

There are the elements of the base offenses. Then there are the elements of the aggravators. Look at the MCM (manual for court martial).

http://www.army.mil/usapa/epubs/pdf/mcm2002.pdf

Look at page 332 in the pdf (page IV-55 in the manual) for the elements of the 112a charge. Do you know if they are going after possession, use, distribution, introduction, or manufacture? What do the specifications say? Typically the charge sheet and specifications track the language of the MCM and set forth the elements.

Look at page 290 in the pdf (page IV-13 in the manual) for the AWOL/Article 86 charge. Do you know what they are going after in terms of that (e.g. AWOL, AWOL w/ intent to avoid field exercises, abandoning watch or guard, etc)?

The elements are in the manual. The prosecution, in terms of the Article 32, must put forth enough evidence to meet each element of each offense.

This STILL doesn't sound to me like it should go to a general court-martial with just those charges -- a special court-martial empowered to adjudge a BCD seems like the more appropriate disposition. Are you sure there are not aggravators? (e.g. gone for more than 30 days + distribution of drugs)?

 

[rhmorris]

Details

The PFC was gone for more than 30 actually he was gone for about 2 months. He had in his possession 10 grams of marijuana. We are going for a possession charge. I think I am going to recommend to tried in GCM.

 

[rhmorris]

Last Questions

Just to make sure, What conclusions and recommendations are authorized to be made by me the investigating officer? and civilian witnesses can not be compelled to testify at an article 32 hearing, right? (As stated in the R.C.M Rule 405 (g)(2)(B))