New CAAF decision on command influence

A new decision is out from CAAF today: United States v. Reed.

The sole granted issue was whether Master Sergeant Reed's conviction, which stemmed from his claims for BAH at the married rate while he was actually divorced, was tainted by unlawful command influence. According to a unanimous court, the short answer is "no."

Some time prior to the appellant's trial, the convening authority sent an email to his subordinates addressing disciplinary issues in the command. The email included a slide presentation that included the following admonition: “Senior NCO and Officer misconduct -- I am absolutely uncompromising about discipline in the leader ranks.” A subsequent slide listed "BAH Fraud" as an example of such misconduct. The trial defense counsel also presented evidence that a “Newcomer’s Briefing” included a statement to the effect that “BAH fraud is an automatic courtmartial [sic] referral here.”

The trial counsel countered with a follow-up email sent by the convening authority explaining the "absolutely uncompromising" language of the slide presentation: "What that means simply is that I will abide by and enforce Army regulations and the Uniform Code of Military Justice as I swore to in my oath and as I am chartered to do as a commander. I will not look the other way, nor apply special dispensation on infractions by leaders ... that does NOT mean that each case is handled in the same manner or will have identical outcomes."

CAAF noted the "extensive" litigation at trial on this issue. The Article 32 IO and the officers in the appellant's chain all testified that they exercised independent judgment in their handling of the case without regard to any perceived command policy on BAH fraud. The military judge also permitted extensive voir dire of the members to determine whether they were influenced by the "command climate." Writing for the court, Chief Judge Effron concluded that even assuming that the evidence raised at trial raised the appearance of unlawful command influence, the government met its burden of proving beyond a reasonable doubt the absence of actual UCI.