U.S. v. Atchak, 75 M.J. 193

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. an individual cannot consent to aggravated assault
2. grievous bodily harm was not likely to occur in the context of HIV exposure when there was a 1-in-500 chance of transmission

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the plain language of Article 66(d), UCMJ, provides that when a CCA sets aside findings, it may order a rehearing, and if it does not, it shall order that the charges be dismissed; the government’s invitation to transform the permissive statutory “may” into a mandatory “must” is declined; the only command under Article 66(d), UCMJ, is that a CCA must dismiss charges when it does not authorize a rehearing on a finding it has disapproved; the text of Article 66(d), UCMJ, does not obligate a CCA to authorize a rehearing; the statute says that a CCA may order a rehearing; it does not say that it must; “may” is a permissive term, and indicates that Congress intended to provide the CCAs with discretion on this point
2. in this case, a CCA did not err in setting aside and dismissing specifications of aggravated assault without authorizing the convening authority to order a rehearing for the LIOs of assault consummated by a battery; given the CCA’s assessment of the state of the record on the question of consent, the state of the law on consent as a defense to assault consummated by a battery, and the CCA’s ability to independently assess the facts, the CCA’s decision not to order a rehearing to permit the government to try and prove the LIO of assault consummated by a battery was not an abuse of discretion or miscarriage of justice

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. CAAF generally reviews a CCA’s action under Article 66, UCMJ, for an abuse of discretion

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews questions of statutory interpretation de novo
2. CAAF generally reviews a CCA’s action under Article 66, UCMJ, for an abuse of discretion