Air Force Court of Criminal Appeals

"Appellant’s case is before this court for the sixth time" begins the current decision in United States v. Rodriguez.

2013: Guilty (mixed pleas/members) to 15 specifications of violating a lawful general regulation; one specification of violating a lawful order; one specification of making a false official statement; one specification of consensual sodomy; two specifications of obstructing justice; and two specifications of adultery, one specification of aggravated sexual assault by causing bodily harm;4 one specification of abusive sexual contact by causing bodily harm; one specification of nonforcible sodomy;6 one specification of aggravated sexual contact by using strength; one specification of wrongful sexual contact; and one specification of indecent exposure. Sentenced to 27 years, DD, TF, RiR.

2015: Remand to correct post-trial errors.

2016: AFCCA dismisses several of the convictions and remands for a new sentencing hearing.

2017: Members sentence him to six years, DD, TF, RiR.

2019: CAAF sends back to AFCCCA on a Hills issue.

2020: TJAG sends back for rehearing; but that was "impractable" so CA approves six years, BCD, TF, RiR.

2021: AFCCA sends back down for post-trial errors.

2022: Back to AFCCA which affirms four years, BCD, TF, RiR. 

In United States v. Bousman, the court discusses Assault with a Dangerous Weapon and Simple Assault as an LIO.

Bousman was convicted (MJA) of one specification of resisting apprehension, one specification of failure to obey a lawful order, one specification of controlling a motor vehicle while drunk, one specification of wrongfully using provoking language, one specification of assault with a dangerous weapon, and three specifications of simple assault. The military judge sentenced Appellant to a bad-conduct discharge, confinement for 15 months, reduction to the grade of E-1, and a reprimand.

Specification 4 of Charge I alleged Appellant: “did, at or near Cannon [AFB], New Mexico, on or about 6 June 2020, with the intent to inflict bodily harm, commit an assault upon [GM] . . . by attempting to stab him with a dangerous weapon to wit: a knife.” The military judge announced the following finding as to Specification 4 of Charge I: “Not Guilty of the charged offense of assault with a dangerous weapon, but Guilty of the lesser included offense of simple assault.” Appellant contends the simple assault of which the military judge convicted him was not a proper lesser included offense of the charged aggravated assault under Article 128, UCMJ, and the conviction must be set aside. We disagree.

​Specification 3 of Charge I alleged Appellant: “did, at or near Cannon [AFB], New Mexico, on or about 6 June 2020, with the intent to inflict bodily harm, commit an assault upon [CC] . . . by pointing at him and touching him with a dangerous weapon to wit: a loaded firearm.” Appellant contends, inter alia, the Government failed to prove beyond a reasonable doubt that the gun Appellant pointed at CC and touched him with was loaded. The Government’s theory, at trial and on appeal, is that the loaded black .40 caliber handgun recovered from Appellant’s truck was the same gun Appellant pointed at CC. We acknowledge that by drawing every reasonable inference in favor of the Government, a rational factfinder could make such a finding beyond a reasonable doubt, and therefore the military judge’s finding is legally sufficient. However, we are not ourselves convinced beyond reasonable doubt that the Government proved Appellant used a loaded firearm. Therefore, we must set aside Appellant’s conviction for aggravated assault as a matter of factual sufficiency review.