                                    IN THE CASE OF


                            UNITED STATES, Appellee

                                            v.


                             Maurice RUSH, Private
                              U.S. Army, Appellant


                                     No. 00-0096


                             Crim. App. No. 9701687

        United States Court of Appeals for the Armed Forces

                             Argued October 3, 2000

                           Decided January 26, 2001

SULLIVAN, J., delivered the opinion of the Court, in which GIERKE
 and BAKER, JJ., joined. EFFRON, J., filed an opinion concurring
in part and dissenting in part. CRAWFORD, C.J., filed an opinion
                     concurring in the result.

                                        Counsel

For Appellant: Captain Steven P. Haight (argued); Colonel Adele H. Odegard,
     Major Jonathan F. Potter, and Captain David S. Hurt (on brief);
     Lieutenant Colonel David A. Mayfield and Major Scott R. Morris.



For Appellee: Captain Mary E. Braisted (argued); Major Bryan T. Boyles (on
     brief); Lieutenant Colonel Edith M. Rob and Captain Katherine M. Kane.



Military Judge:   Richard J. Hough

            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Rush, 00-0096/AR


     Judge SULLIVAN delivered the opinion of the Court.

     During the fall of 1997, appellant was tried by a special

court-martial composed of officer and enlisted members at Fort

Sill, Oklahoma.   Contrary to his pleas, he was found guilty of

breaching the peace, two specifications of assault with a

dangerous weapon, a knife, on different soldiers, and wrongfully

communicating a threat, in violation of Articles 116, 128, and

134, Uniform Code of Military Justice, 10 USC §§ 916, 928, and

934, respectively.    On October 17, 1997, he was sentenced to a

bad-conduct discharge, confinement for 6 months, forfeiture of

$600.00 pay per month for 3 months, and reduction to pay grade E-

1.   On February 5, 1998, the convening authority approved this

sentence, and on September 16, 1999, the Court of Criminal

Appeals affirmed.    51 MJ 605.



     On April 12, 2000, this Court granted review on the following

issue:



           WHETHER THE ARMY COURT OF CRIMINAL APPEALS
           ERRED TO THE SUBSTANTIAL PREJUDICE OF
           APPELLANT BY FINDING NO PREJUDICE DESPITE
           FINDING THE MILITARY JUDGE ERRED BY
           REFUSING TO GIVE A PRESENTENCING
           INSTRUCTION REGARDING THE INERADICABLE
           STIGMA OF A PUNITIVE DISCHARGE.


We hold that the military judge erred in refusing to give a

defense-requested standard instruction on the “ineradicable

stigma” of a punitive discharge without explaining the basis of

his decision on the record.    See RCM 1005(c), Manual for Courts-



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United States v. Rush, 00-0096/AR


Martial, United States (1995 ed.). ∗   Such error, however, was

harmless in this case.    See United States v. Soriano, 20 MJ 337

(CMA 1985).



    The facts in this case which pertain to the granted issue are

not disputed.    The appellate court below summarized them as

follows:



             The appellant was convicted of incidents
           involving two fellow servicemembers.
           First, the appellant pointed a knife at a
           soldier and lunged at him after the
           soldier followed him outside a building to
           smooth over a previous brief, minor,
           contentious discussion. Later, he
           threatened to injure this same soldier in
           retaliation for the soldier’s reporting
           the aggravated assault. Second, in an
           unrelated incident, the appellant attacked
           a United States Marine Corps trainee,
           first with his fists, then with a knife,
           apparently because the appellant was
           offended by the trainee’s stare. That
           aggravated assault resulted in a knife
           wound to the trainee’s temple.

             During two brief Article 39(a), UCMJ,
           sessions held prior to presentation of
           sentencing evidence, the military judge
           discussed sentencing instructions, but
           only to inquire whether the defense
           counsel desired the instruction explaining
           unsworn statements. The record contains
           no other indication of any in-court or
           out-of-court session concerning sentencing
           instructions.

             During his sentencing instructions, the
           military judge read the standard bad-
           conduct discharge instruction:

                A bad-conduct discharge. You are
                instructed that a bad-conduct

∗ The current version of this rule is identical to the one in
effect at the time of trial.

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United States v. Rush, 00-0096/AR


             discharge deprives a soldier of
             virtually all benefits administered
             by the Veterans’ Administration and
             the Army establishment. A bad-
             conduct discharge is a severe
             punishment, and may be adjudged for
             one who, in the discretion of the
             court, warrants more severe
             punishment for bad conduct, even
             though the bad conduct may not
             constitute commission of serious
             offenses of a military or civil
             nature. In this case, if you
             determine to adjudge a punitive
             discharge, you may sentence Private
             Rush to a bad-conduct discharge; no
             other type of discharge may be
             ordered in this case.

          See Dep’t of Army, Pam. 27-9, Military
          Judges’ Benchbook 70 (30 Sep. 1996)
          (currently unchanged at 70.1, Change 1, 30
          Jan. 1998) [hereinafter Benchbook]. He
          did not read any portion of the standard
          ineradicable stigma instruction.1 After
          instructions, the military judge asked
          whether either counsel wanted additional
          instructions or objected to those given.
          The defense counsel replied, “Defense
          would request the ineradicable stigma
          instruction, Your Honor.” The military
          judge answered, “I’m not going to give
          that instruction, Captain [].” He offered
          no explanation.
          ____________
          1/
             Benchbook at 69:

             You are advised that the
             ineradicable stigma of a punitive
             discharge is commonly recognized by
             our society. A punitive discharge
             will place limitations on employment
             opportunities and will deny the
             accused other advantages which are
             enjoyed by one whose discharge
             characterization indicates that
             (he)(she) has served honorably. A
             punitive discharge will affect an
             accused’s future with regard to
             (his)(her) legal rights, economic
             opportunities, and social
             acceptability.

51 MJ at 606-07.


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United States v. Rush, 00-0096/AR




    The Court of Criminal Appeals, after a lengthy historical

analysis of the ineradicable stigma instruction, held that under

the circumstances of the particular case, the military judge’s

action was arbitrary, clearly unreasonable, and constituted an

abuse of discretion because he inexplicably refused to give the

standard sentencing instruction after a timely request without

stating any reason for his decision to deviate from the

Benchbook.   Id. at 610.   Nevertheless, it concluded that in light

of certain factors delineated in United States v. Soriano, supra,

the omission of the instruction did not prejudice appellant as to

his sentence.



                             ___ ___ ___



    Our starting point in resolving the granted issue is the

opinion of the Court of Criminal Appeals.   It exhaustively

explored the origins of the standard instruction provided in the

Military Judges’ Benchbook on the ineradicable stigma of a

punitive discharge.   It said in pertinent part:



            Because the standard Benchbook
          instructions are based on a careful
          analysis of current case law and statute,
          an individual military judge should not
          deviate significantly from these
          instructions without explaining his or her
          reasons on the record. It is possible
          that this military judge harbored the
          belief that a punitive discharge no longer
          carried a stigma, or that the economic
          consequences of a discharge were not
          relevant to the members’ sentencing


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United States v. Rush, 00-0096/AR


           decision, or that the instruction was not
           appropriate in this appellant’s case. We
           cannot divine his reasons from a blank
           record. Under the circumstances of this
           case, because the military judge
           inexplicably refused to give the standard
           sentencing instruction after a timely
           request without stating any reason for his
           decision to deviate from the Benchbook, we
           find his action to be arbitrary and
           clearly unreasonable, and thus an abuse of
           discretion.

51 MJ at 609-10 (footnotes omitted).



    We share the lower appellate court’s concern that military

members be properly instructed as to the severe nature of a

punitive discharge.   See United States v. Soriano, 20 MJ at 337.

We also agree with the lower appellate court that the military

judge has a duty to explain why he is refusing to give a standard

instruction requested by the defense.   See RCM 1005(c) (“The

military judge shall inform the parties of the proposed action on

such requests before their closing arguments on sentence.”); see

also United States v. Neal, 17 USCMA 363, 365, 38 CMR 161, 163

(1968).   In our view, meaningful appellate review of the trial

judge’s decision on this important sentencing matter requires

that he articulate his reason for his decision.   See United

States v. Smith, 50 MJ 451, 455 (1999).



    The remaining question before us is whether the failure of

the trial judge to give the defense requested standard

instruction without explanation was harmless error.     There was no

constitutional error here, but rather a violation of a Manual

provision promulgated by the President to ensure a military


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United States v. Rush, 00-0096/AR


accused a fair trial.    See RCM 1005(c).   In this context, we must

decide whether this objected to error substantially influenced

the sentence proceedings such that it led to a bad-conduct

discharge being unfairly imposed in this case.    See Art. 59(a),

UCMJ, 10 USC § 859(a).    We conclude that it did not.



    As noted above, the instructions actually given in this case

did expressly state to the members that “a bad-conduct discharge

is a severe punishment.” (R. 436).    See United States v. Soriano,

supra at 343.   Second, three of the four offenses for which

appellant was found guilty were aggravated in nature and

individually authorized a punitive discharge.    See paras. 110(e)

and 54(e)(8), Part IV, Manual, supra.    Third, defense counsel

conceded to the members that appellant would be otherwise

stigmatized, lose benefits, and have his military career

terminated by reason of his felony convictions. (R. 431-32).

Finally, this case was tried before experienced members (e.g.,

two colonels, two lieutenant colonels, and three command sergeant

majors) who could reasonably be expected to appreciate the

severity of this punishment on their own.    In these

circumstances, as in Soriano, supra, we find no prejudice and

affirm.



    The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Rush, No. 00-0096/AR




EFFRON, Judge (concurring in part and dissenting in part):

     I agree with the lead opinion's conclusion that the

military judge erred by not giving the requested instruction on

the ineradicable stigma of a bad-conduct discharge.   The

instruction echoes the special attention of Congress to the

stigma of a bad-conduct discharge, which is reflected in those

portions of the UCMJ providing that a bad-conduct discharge may

be imposed only when the accused has been provided with detailed

defense counsel, a verbatim record has been prepared, a military

judge has presided at trial (unless precluded by physical

conditions or military exigencies), and judicial review has been

conducted (unless waived or withdrawn). See Arts. 19, 66(b)(1),

and 71(c), UCMJ, 10 USC §§ 819, 866(b)(1), and 871(c),

respectively.   It is noteworthy that Congress, by contrast, has

authorized the imposition of confinement for up to 6 months

without any of these protections.   See id.   Special attention to

the stigma of a bad-conduct discharge is not simply a vestigial

item from an earlier era, but reflects recent congressional

attention to these issues.   See National Defense Authorization

Act for Fiscal Year 2000, Pub. L. No. 106-65, § 577(a), 113

Stat. 512, 625 (1999).

     I disagree with that portion of the lead opinion finding

that appellant was not prejudiced by the military judge's
United States v. Rush, No. 00-0096/AR


refusal to give this required instruction -- a standard

instruction that was specifically requested by appellant.    The

lead opinion finds the error to be harmless based upon the

nature of the offenses, the general references by the military

judge and defense counsel to the seriousness of a bad-conduct

discharge, and the likely knowledge of the panel members.

Although these factors might have rendered the error non-

prejudicial if the case involved a general court-martial

involving a lengthy sentence, this was not such a case.

     The best measure of the nature of this case comes from the

decision of the convening authority to refer it to a special,

rather than a general, court-martial.   In that context -- a case

the command itself viewed as relatively minor -- it was

particularly important that the military judge use the standard

instruction to direct the attention of the members beyond

generalized concerns about a bad-conduct discharge.   The

standard instruction would have required them to focus on the

permanent stigma -- the ineradicable stain -- of a bad-conduct

discharge.   Under the circumstances of this case, the refusal of

the military judge to give the standard instruction was

prejudicial to the substantial rights of appellant. See Art.

59(a), UCMJ, 10 USC § 859(a).   I would reverse and remand for a

new sentencing proceeding.




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United States v. Rush, No. 00-0096/AR


CRAWFORD, Chief Judge (concurring in the result):

      RCM 1005(e), Manual for Courts-Martial, United States

(2000 ed.), requires certain instructions.           Nowhere at the

time of appellant’s trial did that rule require an

instruction to the effect that a punitive discharge creates

“an ineradicable stigma.”1       The same holds true today.          In

particular, RCM 1005(e)(2) requires members to be

instructed that any sentence involving a punitive discharge

and confinement, or confinement in excess of 6 months, will

have an effect on a servicemember’s entitlement to pay and

allowances.2    If the President had intended that members be

instructed that punitive discharges carried a stigma of

some type, he would have added it in this section.

      In my view, the Court of Criminal Appeals erred when

it rejected the contention that the ineradicable stigma


1
  The instruction which defense counsel sought, but was refused by the
military judge, is:

            You are advised that the ineradicable stigma of
            a punitive discharge is commonly recognized by our
            society. A punitive discharge will place limitations
            on employment opportunities and will deny the accused
            other advantages which are enjoyed by one whose dis-
            charged characterization indicates that (he) (she)
            has served honorably. A punitive discharge will affect an
            accused’s future with regard to (his)(her) legal rights,
            economic opportunities, and social acceptability.

See Military Judges’ Benchbook at 70 (Dept. of the Army Pamphlet 27-9
(30 Sept. 1996)).

2
  This provision was not even in effect at the time of appellant’s
trial.
United States v. Rush, No. 00-0096/AR


instruction was optional.         A Department of the Army

Pamphlet, albeit a widely respected, constantly used and

up-to-date Military Judges’ Benchbook, published by the

Secretary of the Army, does not take precedence over a Rule

for Court-Martial promulgated by the President.

        United States v. Soriano, 20 MJ 337 (CMA 1985), held

that a punitive discharge was a severe punishment and court

members were to be instructed accordingly.             I completely

agree.     The court members in this case were properly

instructed.3

        The ineradicable stigma instruction found in the

Military Judges’ Benchbook addresses the effect of a

punitive discharge on one individual (the accused at trial)

vis-a`-vis all of the servicemembers who do not receive a

punitive discharge.        It is one thing to instruct court

members that a punitive discharge is severe punishment.               It

is quite another thing to tell court members that an


3
    The military judge instructed the members as follows:

              You are instructed that a bad-conduct discharge
              deprives a soldier of virtually all benefits
              administered by the Veterans’ Administration and
              the Army establishment. A bad-conduct discharge
              is a severe punishment, and may be adjudged for
              one who, in the discretion of the court, warrants
              more severe punishment for bad conduct, even though
              the bad conduct may not constitute commission of
              serious offenses of a military or civil nature.
              In this case, if you determine to adjudge a
              punitive discharge, you may sentence Private Rush
              to a bad-conduct discharge; no other type of
              discharge may be ordered in this case.


                                     2
United States v. Rush, No. 00-0096/AR


adjudged punitive discharge may have an ineradicable stigma

when such may not be the case at all.

     This court has frequently emphasized the importance of

giving members appropriate instructions.   See, e.g., United

States v. Greaves, 46 MJ 133 (1997).    Instructions that are

appropriate must be tailored to the facts of each case and

may reflect perceptions as well as developments in social

and labor trends.   See United States v. Tualla, 52 MJ 228,

233 (2000) (Crawford, C.J., concurring).

     Even today, the majority does not hold that the

ineradicable stigma instruction is required.    They find

that the military judge erred by not explaining why he was

refusing to give the instruction.   While an explanation

from the military judge may have been helpful to both the

lower court and this Court in reviewing this case, an

explanation was not required because the ineradicable

stigma instruction, albeit a “standard one,” was not

required by RCM 1005(e) or the law of this Court.   The onus

was on trial defense counsel to justify why such an

instruction was appropriate under the facts of this case.

As I have said previously, “The forum for initiating a new

or different application of facts to existing law is the

trial court.   The bellwether to bring changed conditions to

the forefront should be either the trial or defense


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United States v. Rush, No. 00-0096/AR


counsel.”    Id. at 232.    Reliance on a 1978 law review

article4 to determine what, if any, stigma is attached to a

punitive discharge is no longer justified.




4
  Charles E. Lance, A Criminal Punitive Discharge - An Effective
Punishment?, 79 Mil.L.Rev. 1 (1978).


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