IN THE CASE OF
UNITED STATES, Appellee
v.
Maurice RUSH, Private
U.S. Army, Appellant
No. 00-0096
Crim. App. No. 9701687
United States Court of Appeals for the Armed Forces
Argued October 3, 2000
Decided January 26, 2001
SULLIVAN, J., delivered the opinion of the Court, in which GIERKE
and BAKER, JJ., joined. EFFRON, J., filed an opinion concurring
in part and dissenting in part. CRAWFORD, C.J., filed an opinion
concurring in the result.
Counsel
For Appellant: Captain Steven P. Haight (argued); Colonel Adele H. Odegard,
Major Jonathan F. Potter, and Captain David S. Hurt (on brief);
Lieutenant Colonel David A. Mayfield and Major Scott R. Morris.
For Appellee: Captain Mary E. Braisted (argued); Major Bryan T. Boyles (on
brief); Lieutenant Colonel Edith M. Rob and Captain Katherine M. Kane.
Military Judge: Richard J. Hough
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Rush, 00-0096/AR
Judge SULLIVAN delivered the opinion of the Court.
During the fall of 1997, appellant was tried by a special
court-martial composed of officer and enlisted members at Fort
Sill, Oklahoma. Contrary to his pleas, he was found guilty of
breaching the peace, two specifications of assault with a
dangerous weapon, a knife, on different soldiers, and wrongfully
communicating a threat, in violation of Articles 116, 128, and
134, Uniform Code of Military Justice, 10 USC §§ 916, 928, and
934, respectively. On October 17, 1997, he was sentenced to a
bad-conduct discharge, confinement for 6 months, forfeiture of
$600.00 pay per month for 3 months, and reduction to pay grade E-
1. On February 5, 1998, the convening authority approved this
sentence, and on September 16, 1999, the Court of Criminal
Appeals affirmed. 51 MJ 605.
On April 12, 2000, this Court granted review on the following
issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED TO THE SUBSTANTIAL PREJUDICE OF
APPELLANT BY FINDING NO PREJUDICE DESPITE
FINDING THE MILITARY JUDGE ERRED BY
REFUSING TO GIVE A PRESENTENCING
INSTRUCTION REGARDING THE INERADICABLE
STIGMA OF A PUNITIVE DISCHARGE.
We hold that the military judge erred in refusing to give a
defense-requested standard instruction on the “ineradicable
stigma” of a punitive discharge without explaining the basis of
his decision on the record. See RCM 1005(c), Manual for Courts-
2
United States v. Rush, 00-0096/AR
Martial, United States (1995 ed.). ∗ Such error, however, was
harmless in this case. See United States v. Soriano, 20 MJ 337
(CMA 1985).
The facts in this case which pertain to the granted issue are
not disputed. The appellate court below summarized them as
follows:
The appellant was convicted of incidents
involving two fellow servicemembers.
First, the appellant pointed a knife at a
soldier and lunged at him after the
soldier followed him outside a building to
smooth over a previous brief, minor,
contentious discussion. Later, he
threatened to injure this same soldier in
retaliation for the soldier’s reporting
the aggravated assault. Second, in an
unrelated incident, the appellant attacked
a United States Marine Corps trainee,
first with his fists, then with a knife,
apparently because the appellant was
offended by the trainee’s stare. That
aggravated assault resulted in a knife
wound to the trainee’s temple.
During two brief Article 39(a), UCMJ,
sessions held prior to presentation of
sentencing evidence, the military judge
discussed sentencing instructions, but
only to inquire whether the defense
counsel desired the instruction explaining
unsworn statements. The record contains
no other indication of any in-court or
out-of-court session concerning sentencing
instructions.
During his sentencing instructions, the
military judge read the standard bad-
conduct discharge instruction:
A bad-conduct discharge. You are
instructed that a bad-conduct
∗ The current version of this rule is identical to the one in
effect at the time of trial.
3
United States v. Rush, 00-0096/AR
discharge deprives a soldier of
virtually all benefits administered
by the Veterans’ Administration and
the Army establishment. A bad-
conduct discharge is a severe
punishment, and may be adjudged for
one who, in the discretion of the
court, warrants more severe
punishment for bad conduct, even
though the bad conduct may not
constitute commission of serious
offenses of a military or civil
nature. In this case, if you
determine to adjudge a punitive
discharge, you may sentence Private
Rush to a bad-conduct discharge; no
other type of discharge may be
ordered in this case.
See Dep’t of Army, Pam. 27-9, Military
Judges’ Benchbook 70 (30 Sep. 1996)
(currently unchanged at 70.1, Change 1, 30
Jan. 1998) [hereinafter Benchbook]. He
did not read any portion of the standard
ineradicable stigma instruction.1 After
instructions, the military judge asked
whether either counsel wanted additional
instructions or objected to those given.
The defense counsel replied, “Defense
would request the ineradicable stigma
instruction, Your Honor.” The military
judge answered, “I’m not going to give
that instruction, Captain [].” He offered
no explanation.
____________
1/
Benchbook at 69:
You are advised that the
ineradicable stigma of a punitive
discharge is commonly recognized by
our society. A punitive discharge
will place limitations on employment
opportunities and will deny the
accused other advantages which are
enjoyed by one whose discharge
characterization indicates that
(he)(she) has served honorably. A
punitive discharge will affect an
accused’s future with regard to
(his)(her) legal rights, economic
opportunities, and social
acceptability.
51 MJ at 606-07.
4
United States v. Rush, 00-0096/AR
The Court of Criminal Appeals, after a lengthy historical
analysis of the ineradicable stigma instruction, held that under
the circumstances of the particular case, the military judge’s
action was arbitrary, clearly unreasonable, and constituted an
abuse of discretion because he inexplicably refused to give the
standard sentencing instruction after a timely request without
stating any reason for his decision to deviate from the
Benchbook. Id. at 610. Nevertheless, it concluded that in light
of certain factors delineated in United States v. Soriano, supra,
the omission of the instruction did not prejudice appellant as to
his sentence.
___ ___ ___
Our starting point in resolving the granted issue is the
opinion of the Court of Criminal Appeals. It exhaustively
explored the origins of the standard instruction provided in the
Military Judges’ Benchbook on the ineradicable stigma of a
punitive discharge. It said in pertinent part:
Because the standard Benchbook
instructions are based on a careful
analysis of current case law and statute,
an individual military judge should not
deviate significantly from these
instructions without explaining his or her
reasons on the record. It is possible
that this military judge harbored the
belief that a punitive discharge no longer
carried a stigma, or that the economic
consequences of a discharge were not
relevant to the members’ sentencing
5
United States v. Rush, 00-0096/AR
decision, or that the instruction was not
appropriate in this appellant’s case. We
cannot divine his reasons from a blank
record. Under the circumstances of this
case, because the military judge
inexplicably refused to give the standard
sentencing instruction after a timely
request without stating any reason for his
decision to deviate from the Benchbook, we
find his action to be arbitrary and
clearly unreasonable, and thus an abuse of
discretion.
51 MJ at 609-10 (footnotes omitted).
We share the lower appellate court’s concern that military
members be properly instructed as to the severe nature of a
punitive discharge. See United States v. Soriano, 20 MJ at 337.
We also agree with the lower appellate court that the military
judge has a duty to explain why he is refusing to give a standard
instruction requested by the defense. See RCM 1005(c) (“The
military judge shall inform the parties of the proposed action on
such requests before their closing arguments on sentence.”); see
also United States v. Neal, 17 USCMA 363, 365, 38 CMR 161, 163
(1968). In our view, meaningful appellate review of the trial
judge’s decision on this important sentencing matter requires
that he articulate his reason for his decision. See United
States v. Smith, 50 MJ 451, 455 (1999).
The remaining question before us is whether the failure of
the trial judge to give the defense requested standard
instruction without explanation was harmless error. There was no
constitutional error here, but rather a violation of a Manual
provision promulgated by the President to ensure a military
6
United States v. Rush, 00-0096/AR
accused a fair trial. See RCM 1005(c). In this context, we must
decide whether this objected to error substantially influenced
the sentence proceedings such that it led to a bad-conduct
discharge being unfairly imposed in this case. See Art. 59(a),
UCMJ, 10 USC § 859(a). We conclude that it did not.
As noted above, the instructions actually given in this case
did expressly state to the members that “a bad-conduct discharge
is a severe punishment.” (R. 436). See United States v. Soriano,
supra at 343. Second, three of the four offenses for which
appellant was found guilty were aggravated in nature and
individually authorized a punitive discharge. See paras. 110(e)
and 54(e)(8), Part IV, Manual, supra. Third, defense counsel
conceded to the members that appellant would be otherwise
stigmatized, lose benefits, and have his military career
terminated by reason of his felony convictions. (R. 431-32).
Finally, this case was tried before experienced members (e.g.,
two colonels, two lieutenant colonels, and three command sergeant
majors) who could reasonably be expected to appreciate the
severity of this punishment on their own. In these
circumstances, as in Soriano, supra, we find no prejudice and
affirm.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
7
United States v. Rush, No. 00-0096/AR
EFFRON, Judge (concurring in part and dissenting in part):
I agree with the lead opinion's conclusion that the
military judge erred by not giving the requested instruction on
the ineradicable stigma of a bad-conduct discharge. The
instruction echoes the special attention of Congress to the
stigma of a bad-conduct discharge, which is reflected in those
portions of the UCMJ providing that a bad-conduct discharge may
be imposed only when the accused has been provided with detailed
defense counsel, a verbatim record has been prepared, a military
judge has presided at trial (unless precluded by physical
conditions or military exigencies), and judicial review has been
conducted (unless waived or withdrawn). See Arts. 19, 66(b)(1),
and 71(c), UCMJ, 10 USC §§ 819, 866(b)(1), and 871(c),
respectively. It is noteworthy that Congress, by contrast, has
authorized the imposition of confinement for up to 6 months
without any of these protections. See id. Special attention to
the stigma of a bad-conduct discharge is not simply a vestigial
item from an earlier era, but reflects recent congressional
attention to these issues. See National Defense Authorization
Act for Fiscal Year 2000, Pub. L. No. 106-65, § 577(a), 113
Stat. 512, 625 (1999).
I disagree with that portion of the lead opinion finding
that appellant was not prejudiced by the military judge's
United States v. Rush, No. 00-0096/AR
refusal to give this required instruction -- a standard
instruction that was specifically requested by appellant. The
lead opinion finds the error to be harmless based upon the
nature of the offenses, the general references by the military
judge and defense counsel to the seriousness of a bad-conduct
discharge, and the likely knowledge of the panel members.
Although these factors might have rendered the error non-
prejudicial if the case involved a general court-martial
involving a lengthy sentence, this was not such a case.
The best measure of the nature of this case comes from the
decision of the convening authority to refer it to a special,
rather than a general, court-martial. In that context -- a case
the command itself viewed as relatively minor -- it was
particularly important that the military judge use the standard
instruction to direct the attention of the members beyond
generalized concerns about a bad-conduct discharge. The
standard instruction would have required them to focus on the
permanent stigma -- the ineradicable stain -- of a bad-conduct
discharge. Under the circumstances of this case, the refusal of
the military judge to give the standard instruction was
prejudicial to the substantial rights of appellant. See Art.
59(a), UCMJ, 10 USC § 859(a). I would reverse and remand for a
new sentencing proceeding.
2
United States v. Rush, No. 00-0096/AR
CRAWFORD, Chief Judge (concurring in the result):
RCM 1005(e), Manual for Courts-Martial, United States
(2000 ed.), requires certain instructions. Nowhere at the
time of appellant’s trial did that rule require an
instruction to the effect that a punitive discharge creates
“an ineradicable stigma.”1 The same holds true today. In
particular, RCM 1005(e)(2) requires members to be
instructed that any sentence involving a punitive discharge
and confinement, or confinement in excess of 6 months, will
have an effect on a servicemember’s entitlement to pay and
allowances.2 If the President had intended that members be
instructed that punitive discharges carried a stigma of
some type, he would have added it in this section.
In my view, the Court of Criminal Appeals erred when
it rejected the contention that the ineradicable stigma
1
The instruction which defense counsel sought, but was refused by the
military judge, is:
You are advised that the ineradicable stigma of
a punitive discharge is commonly recognized by our
society. A punitive discharge will place limitations
on employment opportunities and will deny the accused
other advantages which are enjoyed by one whose dis-
charged characterization indicates that (he) (she)
has served honorably. A punitive discharge will affect an
accused’s future with regard to (his)(her) legal rights,
economic opportunities, and social acceptability.
See Military Judges’ Benchbook at 70 (Dept. of the Army Pamphlet 27-9
(30 Sept. 1996)).
2
This provision was not even in effect at the time of appellant’s
trial.
United States v. Rush, No. 00-0096/AR
instruction was optional. A Department of the Army
Pamphlet, albeit a widely respected, constantly used and
up-to-date Military Judges’ Benchbook, published by the
Secretary of the Army, does not take precedence over a Rule
for Court-Martial promulgated by the President.
United States v. Soriano, 20 MJ 337 (CMA 1985), held
that a punitive discharge was a severe punishment and court
members were to be instructed accordingly. I completely
agree. The court members in this case were properly
instructed.3
The ineradicable stigma instruction found in the
Military Judges’ Benchbook addresses the effect of a
punitive discharge on one individual (the accused at trial)
vis-a`-vis all of the servicemembers who do not receive a
punitive discharge. It is one thing to instruct court
members that a punitive discharge is severe punishment. It
is quite another thing to tell court members that an
3
The military judge instructed the members as follows:
You are instructed that a bad-conduct discharge
deprives a soldier of virtually all benefits
administered by the Veterans’ Administration and
the Army establishment. A bad-conduct discharge
is a severe punishment, and may be adjudged for
one who, in the discretion of the court, warrants
more severe punishment for bad conduct, even though
the bad conduct may not constitute commission of
serious offenses of a military or civil nature.
In this case, if you determine to adjudge a
punitive discharge, you may sentence Private Rush
to a bad-conduct discharge; no other type of
discharge may be ordered in this case.
2
United States v. Rush, No. 00-0096/AR
adjudged punitive discharge may have an ineradicable stigma
when such may not be the case at all.
This court has frequently emphasized the importance of
giving members appropriate instructions. See, e.g., United
States v. Greaves, 46 MJ 133 (1997). Instructions that are
appropriate must be tailored to the facts of each case and
may reflect perceptions as well as developments in social
and labor trends. See United States v. Tualla, 52 MJ 228,
233 (2000) (Crawford, C.J., concurring).
Even today, the majority does not hold that the
ineradicable stigma instruction is required. They find
that the military judge erred by not explaining why he was
refusing to give the instruction. While an explanation
from the military judge may have been helpful to both the
lower court and this Court in reviewing this case, an
explanation was not required because the ineradicable
stigma instruction, albeit a “standard one,” was not
required by RCM 1005(e) or the law of this Court. The onus
was on trial defense counsel to justify why such an
instruction was appropriate under the facts of this case.
As I have said previously, “The forum for initiating a new
or different application of facts to existing law is the
trial court. The bellwether to bring changed conditions to
the forefront should be either the trial or defense
3
United States v. Rush, No. 00-0096/AR
counsel.” Id. at 232. Reliance on a 1978 law review
article4 to determine what, if any, stigma is attached to a
punitive discharge is no longer justified.
4
Charles E. Lance, A Criminal Punitive Discharge - An Effective
Punishment?, 79 Mil.L.Rev. 1 (1978).
4