Email to a friend

Ask the Lawyer: Same Crime, Different Punishments

Navy Times

By Mathew B. Tully

Q. Someone I know was found guilty of wrongfully using marijuana, but he was allowed to stay in the military. Does that mean I will not receive a bad-conduct or dishonorable discharge if I’m convicted of the same charge?

A. Just because someone you know managed to remain enlisted — despite being convicted of an offense for which a punitive or administrative discharge is a possibility — doesn’t mean the same outcome is guaranteed for you. Violations of the Uniform Code of Military Justice don’t occur in a vacuum; much more goes into sentencing considerations than the nature and circumstances of the crime committed.

Even if two service members committed the same crime at the same time, it is unlikely they would share the same extenuating, mitigating or aggravating circumstances.

Courts rarely compare sentences to determine the appropriateness of one. But when they do, they’ll examine whether the cases are “closely related” and whether “highly disparate” sentences are founded on a “rational basis,” the U.S. Air Force Court of Criminal Appeals noted in U.S. v. Austin T. Gage.

This case, decided this year, involved an airman first class who, along with another airman first class and a senior airman, sneaked into an air base building believed to be haunted.

The two airmen first class were convicted of unlawful entry. One was sentenced to a bad-conduct discharge and 30 days’ confinement while the other was sentenced to hard labor without confinement for 30 days and reduction to E-1. The airman who received the punitive discharge filed an appeal, claiming his sentence was inappropriately severe. The appellate court found that the airmen’s cases were closely related and their sentences were highly disparate.

The government tried to explain the disparity by saying the appellant instigated the offense, but the court said testimony to support this assertion was “fuzzy at best.” The government also noted the appellant’s poor duty history, including prior nonjudicial punishment, but the court said it could not compare his evidence of rehabilitation potential with that of the other airman.

Lastly, the government noted that the panel knew the other airman did not receive a punitive discharge, but the court declined to speculate on the panel’s conclusions. Ultimately, the court approved the appellant’s 30-day confinement sentence but not his punitive discharge.

Cases involving low-level drug possession and use charges often are processed by administrative separation boards rather than courts-martial. A board will rule whether a service member should be retained or separated and the characterization of the separation. The sentence comparison theory is also applicable to administration separation board proceedings.

Troops accused of any military crime should contact a military law attorney. In the event of a conviction, an attorney can raise mitigating factors to help secure a more lenient sentence or challenge any irrational, highly disparate sentence.


Attorney Locator

Find an attorney near you.
Click below.

Contact Us

  • Tully Rinckey announces new hires and promotion

    Derrick T. Hogan was promoted to senior associate, overseeing the criminal defense practice in Albany. Hogan joined as a law clerk in 2009. Morgan Smith joined as recruitment manager. Smith has more than 14 years of staffing and recruitment experience and previously …

  • Albany Police Officer Arrested

    Officer Caught on Camera Slamming 15-Year old Girl Albany Police Chief Brendan Cox says on July 26th, Officer Ervis Miftari was called to St. Anne Institute, a rehabilitation center for troubled girls, to help with one of the residents, who …

Read All

  • Free Download: EEOC 2016 Update White Paper

    You Could Be Sharing Confidential Info and Not Even Know It Tully Rinckey’s white paper details the Equal Employment Opportunity’s (“EEOC”) nationwide change to procedure that has gone largely unnoticed. The new procedure applies to Charges filed on or after …

Read All

Read All

  • Tully Rinckey PLLC Binghamton Office Ribbon Cutting

    You’re Invited: Tully Rinckey PLLC Binghamton Office Ribbon Cutting Tully Rinckey PLLC, an upstate-wide coast-to-coast 70 attorney full-service law firm, is holding a ribbon cutting for its new office space at 4100 Vestal Road, Suite 104, Vestal, NY 13850 on …

Read All