Separation proceedings for officer convicted of refusing coronavirus vaccine
A military judge convicted First Lieutenant (1LT) Mark Bashaw, but did not punish him, in the first known COVID court-martial on April 29, 2022. Even though the judge declined to dismiss 1LT Bashaw, the Army has initiated separation proceedings. According to Stars and Stripes, 1LT Bashaw's company commander recently began the process to terminate 1LT Bashaw’s service due to the failure to get vaccinated.
Stars and Stripes provides some background to 1LT Bashaw’s refusal in their piece. It writes that he “has taken a strong religious stance against receiving the coronavirus vaccine, ” but does not lay out the basis for the religious objection in much detail. The article also notes that the Army denied 1LT Bashaw's request for a religious exemption from the vaccine.
The inability to receive religious exemptions for the COVID vaccine has been common for military members. Earlier this year, a federal district court in Texas granted an injunction blocking the separation of navy seals who had their religious exemptions denied, finding the Naval process was discriminating against those with religious objections. The Supreme Court later lifted the injunction. Nonetheless, it appears the threat of protracted litigation has the Navy temporarily halting separations where personnel has made a request for a religious exemption.
One necessary component to the request for a religious exception is the sincerity of the religious belief. A key question when it comes to the sincerity of determining the religious beliefs of military members is the extent to which one has refused vaccines in their military career. That is, if the objection is to the coronavirus vaccine in particular, but the military member has been taking all other required vaccinations, then it should be a relatively easy case to find the belief is not a sincere religious one.
The last time there was much opposition to a military vaccine mandate was the anthrax vaccine, although the level of opposition to that vaccine appears to have been much lower. Military Times says that an estimated 350 servicemembers refused the anthrax vaccine from 1998 to 2000. The United States Naval Institute writes that as of May 9, 2022, over 3,800 servicemembers have been separated for refusing to take the coronavirus vaccine.
Given the exponential uptick in vaccine refusals from anthrax to coronavirus, and given the culture and media landscape in today’s U.S. it just seems that the opposition to the coronavirus vaccine has been boosted, in large part, by contemporary political battles. Resistance to personally receiving the vaccine is strongly correlated with party affiliation. Refusing the coronavirus vaccine, to many, does not appear to be a religious awakening.
Returning to 1LT Bashaw, the Stars and Stripes article linked above does not clarify whether 1LT Bashaw consistently refused vaccines on religious grounds through his 16-years of service. Regardless, however, 16-years of service will likely help 1LT Bashaw in his upcoming proceeding.
Officers who have served less than 5 years, like most 1LTs, do not get the benefit of an Army Board composed of three officers from outside the chain-of-command. That Board will hear his case, consider the evidence, and then make a recommendation on separation. If that Board votes for retention, the Army cannot separate 1LT Bashaw. For officers with less than 5-years of service, decisions to separate go through the chain-of-command without an independent hearing before being forwarded on to the Commanding General, Human Resources Command. So with that board of three officers, if any two of them are sympathetic to the arguments put forward by 1LT Bashaw, then he will be retained in service.
Speaking of contemporary political issues, of potential interest in this entire matter, according to the Army Times article from May 3, 2022, Colonel (COL) Yevgeny Vindman appears to be the responsible Staff Judge Advocate for the unit that court-martialed 1LT Bashaw. As you may recall, COL Vindman was dismissed from the National Security Council in February 2020, after President Trump's first impeachment. An IG report later determined the Trump White House retaliated against COL Vindman.
Josh Grubagh, Guest Commenter.
Josh is currently an Army Reserve JA and has his own civilian practice in Connecticut.
It is alleged Albert Einstein said that “If the bee disappears from the surface of the Earth, man would have no more than four years left to live.” He says nothing of woman who generally has a longer life span than man.
Keith S. Delaplane, On Einstein, Bees, and Survival of the Human Race. Honey Bee Project, Univ. of Georgia takes up the challenge. He concludes
I suggest that what’s at stake here is not something so melodramatic as Einstein’s fictitious and dire warning about the collapse of Homo sapiens. I think bee advocates do their cause a disservice when they stoke the flames of hyperbole and sensationalism. Much better to pose the question as a quality of life issue. To the extent that we value a diverse food supply with minimized trauma to the environments where it is produced, we will place a high value indeed on honey bees and other pollinators.
Which brings us to Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), courtesy of Stephanie R. Williams at Appellate Advocacy (one of our favorite) blogs. The point of Ms. Williams's piece is how the court combed through and used, or rejected or, dare-say, manipulated the rules of statutory construction to conclude that a bee is a fish--according to the statute being reviewed. She concludes "the case certainly provides an interesting discussion of [legal not bee] canons of construction."
While you are buzzing around, you might be interested in Richard Grennell's suggestion that references in literature to how bees live and work are mere metaphors for the organization of human society. Shakespeare's Keeping of Bees, 23 Interdisciplinary Studies in Literature and Environment 835 (2016). For example, the Lord of Canterbury's chat with the King in Henry V, Act 1, Scene 2.
"Therefore doth heaven divide
The state of man in divers functions,
Etc., etc., etc.
The SASC Markup of the FY 2023 NDAA would require random selection of court-martial panels and expand appellate review, but does not require unanimous convictions.
Link to summary of Senate mark up here, see page 17.
Last week, Senator Gillibrand, Chair of the Subcommittee on Personnel of the Senate Armed Services Committee (SASC), announced that the personnel subcommittee’s markup of the Fiscal Year 2023 National Defense Authorization Act (FY23 NDAA) contains the following provisions relevant to military justice practitioners:
The markup amends article 25 of the UCMJ to require the randomized selection of qualified personnel for service on court-martial panels.
The markup amends article 66 of the UCMJ to authorize judicial review of any conviction by court-martial regardless of the sentence imposed.
Markup for Fiscal Year 2023, Hearing Before the Subcomm. on Personnel, 117th Cong. (June 14, 2022) (Statement of Senator Kirsten Gillibrand, Chair), (video link, timestamp 25:25 to 25:43).
Both of those provisions have been adopted by the full SASC.Executive Summary of the FY23 NDAA, Senate Armed Service Committee (June 16, 2022) (link), pp. 17-18.
Notably missing from the subcommittee’s markup is language requiring court-martial panels to be unanimous to convict. Last year, the subcomittee’s markup contained such language, as blog covered here: Scholarship Saturday: The proposal to strip commanders of prosecutorial discretion in all serious cases will be part of the Senate’s version of the 2022 NDAA, but that’s not all (also at archive.org). Last year, the SASC did not adopt the personnel subcommittee’s proposed language requiring unanimity, but it did issue this task to the Department of Defense:
The committee directs the Secretary of Defense to conduct a legal review of Article 52 of the UCMJ, to determine whether that Article is constitutional in light of [the] recent Supreme Court decision [in Ramos v. Louisiana]. The committee directs the Secretary to provide a briefing to the Committees on Armed Services of the Senate and House of Representatives, not later than February 1, 2022, on the results of this legal review and on the feasibility and advisability of revising the UCMJ to require unanimous verdicts to be consistent with Federal and State civilian practices, even if not legally required to do so.
Senate Report 117-39, at 176 (September 22, 2021).
There is no public record concerning whether the Department of Defense complied with that direction.
Tired of carrying that paper copy in your pocket, purse, briefcase, or backpack?
United States v. Gene Williams
In 2013, in Williams Appellant was convicted by an "enlisted" panel of rape, four forcible sodomies, and five assaults. He was sentenced to 20 years, TF, RiR, and a DD. Allegations of aggravated sexual contact with a child and child sodomy were dismissed. He got a Hills remand from CAAF. After a second ACCA affirmance, CAAF set aside the rape conviction, three of the sodomies, and the sentence. One of the sodomies was affirmed as were the five A&B.
In 2019, appellant was tried at a combined rehearing before a military judge at a general court-martial. The rehearing offenses consisted of the three specifications of forcible sodomy set aside by the CAAF, and two additional charges: one specification of aggravated sexual contact with a child and one specification of sodomy of a child under twelve. These two charges were the same charges dismissed without prejudice in appellant's first trial. One specification of rape, for which appellant was found guilty at his original trial, and which was set aside by the CAAF and authorized for rehearing, was dismissed by the government without prejudice. The two additional charges were preferred on 30 August 2018, and were received by the summary court-martial convening authority (SCMCA) on 12 September 2018. Contrary to his pleas, appellant was found guilty of the three specifications of forcible sodomy and one specification of child sodomy.' His sentence for these offenses, along with the resentencing for the five specifications of assault consummated by battery, was a dishonorable discharge, confinement for thirty-five years, total forfeitures of pay and allowances and reduction to E-1.
We are getting to the issue now. Of the "multiple assignments of error," the court finds that "the statute of limitations had expired for the child sodomy offense in the Specification of Additional Charge 11." On sentence reassessment, the court affirmed 19 years confinement.
On the issue. It was not raised at trial and the MJ "did not instruct Appellant of it as a possible defense." The court applies plain error and finds it to be "plain and obvious error not to apply [the SoL defense]." Working through the different statutes and rules applicable, the court concludes that
First, to understand how McPherson applies to the child sodomy offense under Article 125, UCMJ, of which appellant was convicted, we must determine the statute of limitations for this particular offense in this case. For this, we look to the version of Article 43, UCMJ, that was in effect at the time charges were received by the SCMCA. The Specification of Additional Charge II alleges the child sodomy of[ occurred between on or about 1 April 2009 and on or about 30 April 2009, in violation of Article 125, UCMJ. While appellant was initially charged at his first trial in 2011 with this offense, the prosecution dismissed this charge without prejudice. Appellant was again charged at his rehearing with this offense when the government re-preferred the child sodomy on 30 August 2018. The SCMCA received this charge on 12 September 2018. On 12 September 2018, X was approximately 17 years old. The Article 43(b), UCMJ, in effect at this time was codified at 10 U.S.C. $ 843() (Supp. IV 2016).
Two more quick observations about ACCA’s Dial reasoning:
1. The court cites to Middendorf (slip op. at 8) ostensibly for two reasons:
Did you know that state law--yes state law--can be relevant when interpreting substantive UCMJ provisions?
"Examination of the committee reports discloses that both regarded three sources as relevant to determination of the scope of a punitive article of the Uniform Code. These sources are: (1) The general federal criminal law; (2) the definition of the offense in the State of Maryland; and, (3) the definition provided by the “Manual.” ... Although not part of the general federal penal law, the criminal law of the District of Columbia is a common and long-used source for definition of misconduct proscribed as a military offense."
United States v. Harris, 8 M.J. 52, 56 (C.M.A. 1979).
The reason for this is that if one is seeking Congressional intent, analogies from the Congressionally-written DC Code are relevant, and the DC Code is at times interpreted in light of Maryland.
"As noted earlier, those congressional reports refer to the law of the State of Maryland as a source for definition of various acts prohibited by the Uniform Code. It might seem strange to one unfamiliar with the special relationship between the law of that state and the law of the District of Columbia, that the Committees on Armed Services should single out the criminal law of a particular state as a source for congressional intention as to military offenses. The explanation is that, by direction of Congress, questions of common-law arising *57 in the District of Columbia are resolved with special consideration to the law of the State of Maryland. 49 D.C.Code s 301 (1973); White v. Parnell, 130 U.S.App.D.C. 148, 397 F.2d 709, 710 n. 1 (D.C.Cir. 1968). We construe the reference in the reports to the law of Maryland as identifying, consistent with established military practice, the law of the District of Columbia as a source for congressional intention in regard to punitive articles of the Uniform Code." Id.
Query: does any of this matter given that textualism is now the law of statutory interpretation?
LTC Dan Maurer has given us a guest post.
Eugene Volokh, reports on United States v. Yung.
The court concludes that the federal "cyberstalking" statute covers only speech intended to "put the victim in fear of death or bodily injury" or to "distress the victim by threatening, intimidating, or the like."
Essentially the court finds that the statute, as construed by the prosecution, is overbroad and can offend the First Amendment. The statute requires
The court discusses how application of the "result" can be interpreted to narrow the statute and avoid First Amendment concerns. Volokh also links to several articles on how this type of statute can be overbroad and veer into First Amendment problems.
Steele presents an interesting issue of new claims on or after remand.
In addition to this initial plenary appellate review under Article 66, a non trivial number of appeals return to this court following either a remand to the trial level for a rehearing on findings and/ or sentence (like this case), or following remand from the Court of Appeals for the Armed Forces [CAAF] for additional proceedings in our court. See, e.g., United States v. Sanchez, ARMY 20140735, 2019 CCA LEXIS 164 (Army Ct. Crim. App. 10 Apr. 2019) (summ. disp). When cases come back in these ways, sometimes appellants press new claims of error that they did not raise in their first appeal. In some instances, we have reached the merits of the new claim or claims. See, e.g., United States v. Hemmingsen, ARMY 20180611, 2021 CCA LEXIS 180, at *3 (Army Ct. Crim. App. 15 Apr. 2021) (mem. op.) (concluding that considering the new issues was within the scope of the CAAF's remand order). In other appeals we have held that the newly-raised claim is not properly before us. See, e.g., United States v. Navarette, ARMY 20160786, 2022 CCA LEXIS 255, at *11 (Army Ct. Crim. App. 29 Apr. 2022) (citing United States v. Smith, 41 M.J. 385,386 (C.A.A.F. 1995), for the proposition that "[w]hile [an] appellant is entitled to plenary review under Article 66 ... he is only entitled to one such review.").
Basically, if you can't clear the test above, the issue is procedurally forfeited. The court does not that the newly alleged constitutional error was, to say the least, novel.
Cheers, Phil Cave.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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