In a recent ruling, The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) has rectified contradictory language between the Manual for Courts-Martial and Article 56. In United States v. Henegar, the court has decided that the language provided in Article 56 wins out and that those convicted of attempted sexual offenses are subject to the mandatory minimum punishments the rule provides.
UNDERSTANDING THE CONTRADICTION
The Manual for Courts-Martial is very specific about punishments that can be provided for those convicted for attempted offenses under Article 120. The Manual, which is considered a Presidential directive, reads: “Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case… shall any mandatory minimum punishment provisions apply…”
However, a newer rule, drafted by Congress, contradicts the language in the manual. This rule, Article 56, provides that anyone found guilty under the Article 120 offenses or of attempting an Article 120 offense (an Article 80 offense), must receive a dishonorable discharge. This contradiction has troubled sentencing in many cases, but in United States v. Henegar, the court confronted the dilemma once and for all.
UNITED STATES V. HENEGAR
In United States v. Henegar, the defendant pleaded guilty to attempted sexual assault of a child, but then appealed the decision to dishonorably discharge him due to his apparent rights under Manual for Courts-Martial. In other words, he was willing to accept punishment—as long as it did not include the dishonorable discharge.
However, NMCCA ultimately ruled that the newer Article 56 rule did apply to the defendant’s case. “Indeed, the Rules for Courts-Martial acknowledge that a Congressional statute imposing a mandatory minimum must prevail, even if it precludes a court-martial from adjudging a lesser punishment to the benefit of the accused,” the slip decision reads. “Article 56(b), UCMJ, is coherent within a statutory scheme (including Articles 18 and 56(a), UCMJ) that generally allows the President to set limits on punishment. But Congress’s specific mandatory minimum punishment statute prevails over statutes allowing the President to generally limit minimum punishment.” For now, if a Servicemember is convicted of an attempted Article 120 offense, an automatic mandatory minimum dishonorable discharge is adjudged in addition to any other sentence that maybe given. It will be interesting to see how CAAF rules on this issue if they take it up.
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