U.S. v. Easterly, 79 M.J. 325

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability
2. where the two-part test for an instruction on the impact of a punitive discharge on retirement benefits is met, the military judge must be liberal in granting a request for such an instruction and may deny a request only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence; if given, the instruction should be appropriately tailored to the facts of the case with the assistance of counsel
3. in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone any plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error

Military Justice Personnel: Military Judge: Instructions

1. the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability
2. where the two-part test for an instruction on the impact of a punitive discharge on retirement benefits is met, the military judge must be liberal in granting a request for such an instruction and may deny a request only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence; if given, the instruction should be appropriately tailored to the facts of the case with the assistance of counsel
3. in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error

Trial Stages: Sentence and Punishment: Instructions

1. the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability
2. where the two-part test for an instruction on the impact of a punitive discharge on retirement benefits is met, the military judge must be liberal in granting a request for such an instruction and may deny a request only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence; if given, the instruction should be appropriately tailored to the facts of the case with the assistance of counsel
3. the impact of a punitive discharge on retirement benefits where a member is perilously close to retirement is not a collateral consequence of the conviction, but rather a direct and proximate consequence of the sentence and should be part of the factfinder’s deliberations in arriving at a sentence
4. in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error
5. failure to object to omission of an instruction on sentencing constitutes forfeiture of the objection, and forfeited issues are reviewed by an appellate court for plain error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error
2. failure to object to omission of an instruction on sentencing constitutes forfeiture of the objection, and forfeited issues are reviewed by an appellate court for plain error
3. plain error requires showing: (1) error; (2) the error was clear or obvious; (3) the error prejudiced the accused’s substantial rights

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

1. the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability
2. failure to object to omission of an instruction on sentencing constitutes forfeiture of the objection, and forfeited issues are reviewed by an appellate court for plain error
3. plain error requires showing: (1) error; (2) the error was clear or obvious; (3) the error prejudiced the accused’s substantial rights