I. Whether the evidence is legally sufficient to support the finding of guilty for disobeying a lawful command where there was no evidence that the command was directed personally to Appellant or that Appellant knew it was from a superior commissioned officer.United States v. Ranney, __ M.J. __, No. 08-0596/AF (C.A.A.F. Nov. 6, 2008).
II. Whether the order in the specification of Charge II was a lawful order when the evidence indicated the order's purpose was to accomplish some private end.
AFCCA's opinion in the case is available here. The second issue in the case involves an Air Force E-6 dating a Marine Corps (or, in the words of the AFCCA opinion, "Marine Corp") E-3. Nothing in any standing order prohibited the relationship and there was no direct superior-subordinate relationship between the two. But the Marine E-7 for whom the Air Force E-6 worked ordered him to the stop the "offensive" aspect of his relationship with the E-3. Apparently he didn't.
AFCCA agreed with Technical Sergeant Ranney that the military judge erred by having the members decide the question of the order's legality rather than deciding it himself. Id., slip op. at 6. But AFCCA went on to hold that the order was legal. AFCCA reasoned:
[T]he evidence in the record establishes that GySgt F's reason for issuing the order was his concern regarding the conflict between the duties imposed upon an NCO with regard to reporting non-compliance of junior Marine enlisted members with various restrictions placed upon their social activities and the existence of a relationship between an NCO and a junior enlisted member which tended to engender such non-compliance. He expressed concern about the impact such a situation would have on other junior enlisted members within the unit -- in essence its impact on the discipline and moral [sic] of the unit, clearly a traditional concern of those in supervisory positions within the military.Id., slip op. at 6-7.
Had there been a supervisory relationship between the appellant and LCpl M within the unit, the basis for GySgt F's concerns would have had more gravitas. Yet, we are charged with discerning whether there existed a rational nexus between military duty and the order in question, not to parse where that military duty sits on a continuum from greatest to least. Based on the evidence in the record, we conclude that such a nexus existed in this case, and consequently the order was lawful.
CAAF will now review that conclusion. And my guess is that CAAF will consider something that AFCCA didn't discuss: the gunny's order's implications for Technical Sergeant Ranney's First Amendment right to freedom of association. See generally United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996) (discussing the extent to which the First Amendment right to freedom of association applies to servicemembers).