U.S. v. Pugh, 77 M.J. 1

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. the offense of dereliction in the performance of one’s duties requires that the following elements be proven: (a) that the accused had certain duties; (b) that the accused knew or reasonably should have known of the duties; and (c) that the accused was willfully or through neglect or culpable inefficiency derelict in the performance of those duties; the duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service; a lawful military order must: (1) have a valid military purpose, and (2) be clear, specific, and narrowly drawn; to have a valid military purpose, an order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service
2. an Air Force instruction banning all legally available commercial food products containing hemp seed and hemp seed oil sold and regulated in the US was overly and inappropriately broad as it pertained to FDA approved food products; the blanket ban did not advance the military purpose of ensuring military readiness by protecting the reliability and integrity of the drug testing program; ingesting legally available commercial food products such as Strong & KIND bars did not represent a threat to the integrity and accuracy of the Air Force Drug Testing Program because commercially available US food products containing hemp seeds did not contain enough THC detectable at the levels proscribed by DoD; although the Air Force had a legitimate concern in prohibiting hemp food products that contain enough THC to trigger a positive drug test, banning legal, properly labeled food products well regulated by the US government under the guise of protecting airmen from unlabeled, unregulated, illegal food products was well beyond the government’s stated purpose for the ban; the regulation was overbroad because appellant’s act of consuming Strong & KIND bars could not interfere with the Air Force Drug Testing Program, and as such, the regulation was an insufficient basis to support a charge of dereliction when it applied to legal, FDA-approved food products

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; on matters of fact with respect to appeals under Article 62, UCMJ, the appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous

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

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; on matters of fact with respect to appeals under Article 62, UCMJ, the appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous
2. the legality of a military order is a question of law that an appellate court reviews de novo
3. an appellate court determines whether an order is overbroad by examining the specific conduct at issue rather than the theoretical limits of the order