Court of Appeals for the Armed Forces-Armsbury

Armsbury's unanimous decision, addresses a CCA's broad authority to review, in pre-December 27, 2023, cases, for sentence appropriateness. So at some point this authority may age-out. Having lost at ACCA, The Judge Advocate General of the Army certified two questions:

• Did the ACCA have authority to set aside a bad-conduct discharge that was a negotiated term of a plea agreement?
• Did the ACCA abuse its discretion in finding the sentence highly disparate?

Some facts

Private Armsbury and two fellow soldiers were walking back to post after a night of drinking when they stumbled into a street brawl. One of the men in the other group, Marine LCpl KC, ended up on the ground. SGT JH violently kicked him in the head. Armsbury followed with a light kick, then walked away. SPC JW stayed and struck the victim multiple times.

Armsbury was charged with aggravated assault, maiming, and conspiracy. He pled guilty, with a pretrial agreement, to the lesser charge of assault consummated by a battery. In exchange, the government dismissed the remaining charges and locked the sentence into a range of 60 to 120 days confinement with a mandatory bad-conduct discharge. The military judge sentenced him to sixty days and the BCD.

SGT JH — the soldier who threw the violent kick — pleaded guilty to the more serious charge of aggravated assault, drew 121 days confinement, and walked away with no punitive discharge at all.

ACCA set aside Armsbury's BCD, finding it highly disparate compared to SGT JH's sentence with no rational basis for the difference.

The Old Article 66 applies here because the new amendment to Article 66 applies only to cases where all findings of guilty are for offenses occurring after December 27, 2023. Armsbury's offense occurred in May 2022.

Under the old Article 66, a CCA possessed broad, virtually plenary sentence-appropriateness review authority. CAAF held that CCAs operating under the prior version of Article 66 retain the ability to invalidate even bargained-for terms of a plea agreement when appropriate. The court reasoned that Article 53a — which authorizes plea agreements — binds only the court-martial itself, not the CCAs, and contains no language limiting CCA review authority.

Under the new Article 66, that broad sentence-appropriateness review seems somewhat narrowed rather than engage in wide-open "sentence appropriateness" reassessment. The Armsbury opinion does not directly apply or interpret the new Article 66, but its repeated emphasis on "the prior version" signals that the outcome could differ for post-2023 offenses.

Highly Disparate Sentences. The long-standing framework comes from United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999):

• The accused bears the initial burden of showing (1) the comparator case is closely related and (2) the sentences are highly disparate.
• If the accused meets that burden, the burden shifts to the government to demonstrate a rational basis for the disparity.

Closely related: The ACCA found SGT JH's case closely related because both men faced the identical charges from the same incident and were simultaneously involved — and CAAF agreed this finding was not an abuse of discretion.

Highly disparate: SGT JH pleaded guilty to the more severe charge and received no punitive discharge, while Armsbury pleaded to the lesser offense and received a bad-conduct discharge. The ACCA found the significant adverse stigma of a punitive discharge alone made the sentences highly disparate, and CAAF affirmed.

No rational basis: The government offered three arguments, all rejected:

• Gratuitousness of conduct — The CCTV footage and stipulation of fact showed Armsbury's kick was the least egregious act among the three participants. The government's characterization of it as "gratuitous" did not hold up.
• Difference in unsworn statements — The ACCA found no substantive difference between the two statements and added the sharper point: the length and content of an unsworn statement carries no weight where the plea agreement gave the military judge no discretion over whether to impose a punitive discharge in the first place.
• Differing military careers — CAAF noted the government itself conceded in its ACCA briefing that Armsbury "raises a fair point regarding the expectation of a noncommissioned officer versus a brand-new soldier" and that the argument "cuts both ways." An experienced NCO like SGT JH could just as reasonably be held to a higher standard than a new enlistee.

Practical Takeaways. The case establishes three important points for military practitioners on pre-2023 cases:

• Plea agreements do not insulate sentences from CCA review under old Article 66. A negotiated BCD can be set aside on appeal even if the accused agreed to it.
• The new Article 66 changes the landscape. Defense counsel handling post-December 2023 offenses cannot rely on the same broad sentence-appropriateness platform.
• Co-actor disparities carry real appellate weight. When a more culpable co-actor avoids a punitive discharge entirely, that disparity — particularly when no rational basis supports it — creates strong appellate grounds under the old Article 66 framework.

Sentence disparity cases are rare and at some point there will not be any pre-2023 cases entering the system. But the question remains whether a sentence appropriateness challenge for sentence disparity survives. Article 66(e)(1)(B) and (D) suggest there is room for the Lacy test. (Note (e)(1)(B)'s reference to future parameters.