U.S. v. Rush, 54 M.J. 313

Trial Stages: Sentence and Punishment: Instructions

1. 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
2. concern that military members be properly instructed as to the severe nature of a punitive discharge creates a duty for a military judge to explain why he or she refuses to give a standard instruction on the ineradicable stigma of a punitive discharge requested by the defense; meaningful appellate review on this important sentencing matter requires that a military judge articulate a reason for such a decision
3. failure of the military judge to give a defense-requested instruction on the ineradicable stigma of a punitive discharge is not constitutional error, but rather a violation of a Manual provision promulgated by the President to ensure a military accused a fair trial; such an error will be tested to determine whether it substantially influenced the sentence proceedings such that it led to a bad-conduct discharge being unfairly imposed
4. appellant was not prejudiced by failure of the military judge to give a defense-requested instruction on the ineradicable stigma of a punitive discharge where: (1) other instructions indicated that a bad-conduct discharge was a severe punishment; (2) three of the four offenses for which appellant was found guilty were aggravated in nature and individually authorized a punitive discharge; (3) defense counsel conceded to the members that appellant would be otherwise stigmatized by reason of his felony conviction; and (4) the case was tried before experienced members who could reasonably be expected to appreciate the severity of this punishment on their own

Trial Stages: Appeals: Harmless / Prejudicial Error

1. failure of the military judge to give a defense-requested instruction on the ineradicable stigma of a punitive discharge is not constitutional error, but rather a violation of a Manual provision promulgated by the President to ensure a military accused a fair trial; such an error will be tested to determine whether it substantially influenced the sentence proceedings such that it led to a bad-conduct discharge being unfairly imposed