By Greg T. Rinckey
Congress and the president have an “I told you so” coming their way after a Marine lance corporal avoided conviction for misbehaving as a sentinel despite the fact he bought and smoked hashish while on guard duty in Afghanistan in August 2010.
Due to a technicality in the Manual for Courts-Martial, the U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA) dismissed Lance Cpl. Phillip J. Apodaca’s charge of misbehavior by a sentinel in violation of Article 113 of the Uniform Code of Military Justice (UCMJ). Even though Apodaca at a special court-martial pleaded guilty to the Article 113 charge and a charge of wrongful use and possession of hashish in violation of Article 112a, the NMCCA threw out the former charge because it can only apply to sentinels who are drunk from alcohol, not impaired by illegal substances.
According to the UCMJ, sentinels and lookouts can violate Article 113 if they are “found drunk or sleeping upon his post”. The 1969 version of the Manual for Courts-Martial included a broad definition for “drunk” that included impairment from alcohol or illegal substances. In the current version of the manual, however, the definition for “drunk” under Article 113 is based on the definition from Article 111 (drunken or reckless operation of a vehicle). “Drunk” in Article 111 only refers to intoxication by alcohol.
According to the court, the Air Force in 1996 made an “express invitation” to Congress and the president to rectify this problem with the definition of “drunk”, but no changes were made to the language. Unable to convict Apodaca for violating Article 113, the government asked the court rule him guilty of the lesser offense of dereliction of duty in violation of Article 92. The NMCCA, however, said such a ruling would result in an unreasonable multiplication of charges.
This case, U.S. v. Apodaca, illustrates the extents to which the government will go to punish service members, even if it means going beyond the word of the law. Further, it shows why it is important for service members to appeal military convictions. Had the lance corporal in this case not appealed his Article 113 conviction, he could have been convicted for a crime he did not technically commit.
Service members charged for any offense should immediately contact a military law attorney who can block the government’s attempts to stretch legal definitions and convict them of crimes they technically did not commit.
Greg T. Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC. He concentrates his practice on military law, federal employment and discrimination litigation and national security clearance mitigation. He can be reached at email@example.com. To schedule a meeting with one of Tully Rinckey PLLC’s military law attorneys call 202-787-1900.