United States v. Atchak, 2016 CAAF LEXIS 264

Appellee Atchak, an HIV-positive Airman, violated a preventive order requiring disclosure and safe practices and had unprotected sexual contact with two airmen.
He pleaded guilty to two specifications of violating a lawful order (Article 92), one specification of dereliction of duty, and three specifications of aggravated assault (Article 128).
The military judge accepted pleas and sentenced Atchak to 36 months confinement, forfeitures, and a bad-conduct discharge; the convening authority approved.
The Air Force Court of Criminal Appeals (AFCCA) set aside and dismissed the three aggravated-assault specifications in light of United States v. Gutierrez and evidentiary/consent issues, and reduced the sentence to eight months confinement and a bad-conduct discharge.
The Government asked the Court of Appeals for the Armed Forces (this Court) to require the AFCCA to authorize a rehearing on the lesser-included offense (assault consummated by a battery).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether AFCCA erred by setting aside aggravated-assault findings without ordering a rehearing on the lesser-included offense (assault consummated by a battery)	Government: AFCCA should have authorized a rehearing so the Government could try to prove the LIO	Atchak/AFCCA: Article 66(d) gives CCAs discretion — they may order a rehearing but are not required to; dismissal was proper given consent and evidentiary problems	Held: Affirmed AFCCA. Article 66(d)’s “may” is permissive; CCAs need not order rehearings, and AFCCA did not abuse its discretion

United States v. Rodgers, 461 U.S. 677 (statutory “may” normally permissive)
Lopez v. Davis, 531 U.S. 230 (contrasting permissive "may" and mandatory "shall")
United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. decision on likelihood of grievous bodily harm from HIV exposure)
United States v. Bygrave, 46 M.J. 491 (consent not a defense to aggravated assault in certain contexts)