United States v. Specialist JOSHUA A. TANKERSLEY
ARMY 20140074
| A.C.C.A. | Aug 15, 2016Background
- Specialist Tankersley, a reserve soldier deployed to Camp Liberty, Iraq (Mar–Jun 2010), was medically evacuated for a non-combat shoulder injury and initially denied concussive events or IED exposure.
- After return, he told multiple medical providers and his commander he had been in IED blasts, lost consciousness, vomited blood, saw comrades shot, and experienced RPG/insurgent attacks; he claimed PTSD and TBI to obtain benefits and a medical evaluation board.
- Medical records and testimony (including his deployed chaplain and government neuropsychologist) contradicted his accounts; experts found no PTSD or TBI diagnoses and concluded he was embellishing or feigning cognitive deficits.
- An officer panel convicted him, contrary to pleas, of one specification of disrespect, seven specifications of false official statements (Art. 107), and four specifications of malingering (Art. 115); sentence: bad-conduct discharge (approved).
- At trial the military judge merged two pairs of malingering specifications for sentencing (treating Fort Sill and Fort Sam Houston acts as one each); Tankersley did not object to charge multiplicity at trial and raised the issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether false official statement specs should be dismissed or merged with malingering specs as an unreasonable multiplication of charges | Tankersley: false-statement specs are substantially one transaction with malingering and should be consolidated/dismissed | Government: false statements and malingering are distinct offenses with different gravamina and purposes | Court: No error; specs are distinct, accurately reflect criminality, no prosecutorial overreach; appellant forfeited the issue so reviewed for plain error and relief denied |
| Whether four malingering specs (two TBI, two PTSD across two locations) should be consolidated into one spec for findings and sentencing | Tankersley: all malingering was a single continuous scheme and should be consolidated | Government: PTSD and TBI are distinct conditions, were feigned at different times/locations to different clinicians | Court: Declined consolidation; acts were distinct by disorder, time, place; no unreasonable multiplication or increased punitive exposure |
| Whether the military judge’s failure to sua sponte dismiss/merge charges was plain error | Tankersley: judge should have addressed multiplicity sua sponte and correct it | Government: judge’s actions were within discretion; appellant forfeited challenge by not objecting | Court: No plain error; forfeiture weighs against appellant; no prejudice shown |
| Ineffective assistance and alleged post-trial prejudice from prosecutor social-media post | Tankersley: counsel ineffective (various claims); trial counsel’s post misrepresented results on social media causing illegal punishment | Government: counsel effective; social-media post ill-advised but not prejudicial | Court: Ineffective-assistance claims not shown or prejudicial; social-media post was ill-advised but caused no prejudice; no relief granted |
Key Cases Cited
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F.) (sets multifactor test for unreasonable multiplication of charges)
- United States v. Campbell, 71 M.J. 19 (C.A.A.F.) (context on prosecutorial discretion and multiplicity concerns)
- United States v. Gladue, 67 M.J. 311 (C.A.A.F.) (plain-error review for forfeited multiplicity objections)
- United States v. Harcrow, 66 M.J. 154 (C.A.A.F.) (plain-error test elements articulated)
- United States v. Gutierrez, 66 M.J. 329 (C.A.A.F.) (standards for proving ineffective assistance of counsel)
- United States v. Anderson, 68 M.J. 378 (C.A.A.F.) (CCA’s discretion, Article 66(c) powers in multiplicity review)
- United States v. Cole, 31 M.J. 270 (C.M.A.) (Article 66(c) plenary review authority explained)