United States v. Henegar
2016 CCA LEXIS 495
| N.M.C.C.A. | 2016Background
- Appellant pleaded guilty at a general court-martial to attempted sexual assault of a child (Art. 120b(b) via Art. 80), attempted distribution of a controlled substance, and attempted sexual abuse of a child.
- Initial sentence: 4 years confinement, reduction to E-3, reprimand, and bad-conduct discharge; after a sua sponte Article 39(a) session the military judge resentenced to 24 months confinement, reprimand, reduction to E-3, and a dishonorable discharge.
- Congress amended Art. 56(b), UCMJ to require that an attempt conviction for rape/sexual assault of a child under Art. 120b(a)/(b) include at minimum dismissal or dishonorable discharge.
- The President’s MCM (Part IV, ¶4.e) states mandatory minimums do not apply to attempts under Art. 80; this appears to conflict with Congress’s Art. 56(b) amendment.
- Appellant argued ambiguity between these provisions (and invoked the rule of lenity) and challenged (1) whether a dishonorable discharge is mandatory for an Art. 80 attempt of Art. 120b(b), and (2) that the convening authority prematurely executed the discharge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dishonorable discharge is mandatory for an Art. 80 attempt of Art. 120b(b) | Appellant: MCM ¶4.e and Art. 18/56 create ambiguity; apply rule of lenity and treat mandatory discharge as inapplicable to attempts | Government: Congress unambiguously required a dismissal/dishonorable discharge for attempts via Art. 56(b); congressional statute controls over conflicting MCM provision | Court held Congress’s Art. 56(b) unambiguously mandates a dishonorable discharge for an Art. 80 attempt of Art. 120b(b); MCM ¶4.e cannot override statute |
| Whether convening authority improperly executed the adjudged discharge and whether corrective action is required | Appellant: Convening authority purported to execute the dishonorable discharge before final judicial review; seeks relief | Government: Such premature execution is a nullity and requires no corrective relief beyond noting the error | Court held the attempted execution was a nullity; no corrective action needed except to correct clerical errors in the court-martial order |
Key Cases Cited
- Barnhart v. Sigmon Coal Co., 534 U.S. 438 (statutory interpretation principles)
- Loving v. United States, 517 U.S. 748 (Congress may legislate punishment elements even when President has rulemaking authority)
- United States v. McPherson, 73 M.J. 393 (standard of review for statutory construction in military justice)
- United States v. Christian, 63 M.J. 205 (harmonizing UCMJ provisions and limits on Presidential rulemaking)
- United States v. Davis, 47 M.J. 484 (MCM cannot contradict Code)
- United States v. Bailey, 68 M.J. 409 (premature execution of punitive discharge is a nullity)