Air Force Court of Criminal Appeals

After the TC proposed and the MJ effectively gave a creative sentencing instruction about a Bad Conduct Discharge, AFCCA concludes that Appellant Pagan was not prejudiced.

[T]rial counsel requested a special instruction with regard to the bad-conduct discharge punishment option. Trial counsel requested that instead of the standard instruction on a bad-conduct discharge, that the members be provided the following:
     A bad[-]conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment [*4]  for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.
The military judge heard the parties' positions on this proposed instruction at that time. Trial defense counsel objected to this instruction arguing that the language was confusing and that it simply served to bolster the Government's argument.

United States v. Pagan, No. ACM S32738, 2023 CCA LEXIS 334, at *3-4 (A.F. Ct. Crim. App. Aug. 11, 2023). The MJ's draft instruction said,

You are advised that the 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 [*5]  one whose discharge characterization indicates that he has served honorably. A punitive discharge will affect an accused's future with regard to his legal rights, economic opportunities, and social acceptability.

This court may adjudge a bad-conduct discharge. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the military establishment. A bad-conduct discharge is a severe punishment and may be adjudged for one who, in the discretion of the court, warrants severe punishment for bad conduct, even though such bad conduct may not include the commission of serious offenses of a military or civil nature.
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A bad-conduct discharge may also be adjudged for one, who in the discretion of the court, has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary, keeping in mind that the accused is to be punished only for the offenses of which the accused has been found guilty in this court-martial.

AFCCA admonishes us "To be clear, the Benchbook is a restatement of law—it is not a substantive or binding source of law itself. As this court has previously explained[.] 2023 CCA LEXIS 334, at *10.

Compare, 

United States v. Guyton, 82 M.J. 146 (C.A.A.F. 2021) (RCM Discussion not binding but  serves as guidance); United States v. Chandler, 80 M.J. 425 (C.A.A.F. 2020); United States v. Badders, 82 M.J. 299 (C.A.A.F. 2021); United States v. Herrmann, 76 M.J. 304 (C.A.A.F. 2016)  (MCM explanations are generally treated as persuasive authority to be evaluated in light of the CAAF’s precedent); United States v. Reese, 76 M.J. 297 (MCM explanations of codal offenses are not binding, but are persuasive indications of how the President, perceives an offense, including limitations on the Executive power that are not required by the Code or other applicable law). And “[w]here the President’s narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, ‘we will not disturb the President’s narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.’” Guess, 48 M.J. 69, 71 (C.A.A.F. 1998).

The opinion, unfortunately, does not address whether the TC actually tied this instruction to rehabilitative potential during the argument on sentencing. Certainly, the MJ's instruction made that argument for them--and bolsters it. And while the appellate trope is that the members are presumed to follow the instructions, can we trust that in all circumstances?

During the presentencing proceedings, evidence of Appellant's letter of counseling, nonjudicial punishment, record of vacation action of suspended nonjudicial punishment, as well as a prior summary court-martial conviction for the same misconduct as the charged offenses was presented. Seeing this, the military judge was well within his discretion to refer to the President's guidance in R.C.M. 1003(b) on a bad-conduct discharge and tailor his instructions to incorporate the guidance that most accurately reflected an issue reasonably raised by the evidence in this case. In other words, the military judge did not err when he utilized relevant and applicable law in his instructions to the members.

2023 CCA LEXIS 334, at *13.

In a different case, may the defense ask the MJ to instruct the members that,

A bad-conduct discharge may be adjudged based on the seriousness or number of the offenses of which the Panel has  convicted the accused. Otherwise, you should consider that a bad conduct discharge is normally reserved for those who in the discretion of the court have been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary, keeping in mind that the accused is to be punished only for the offenses of which the accused has been found guilty in this court-martial.

We assume the MJ would deny such a request, because it, or similar language, bolsters the defense argument.