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Military high court overturns convictions citing possible command influence

By NANCY MONTGOMERY | STARS AND STRIPES Published: May 25, 2017

The military’s highest court has overturned a former Aviano airman’s rape and assault conviction and prison sentence, saying that the case had been compromised by apparent unlawful command influence.

In a 3-2 opinion published last week, the Court of Appeals for the Armed Forces said that because then-Lt. Gen. Craig Franklin, the authority in the case, had been told to retire or be fired because of his decisions in previous sexual assault cases, his move 10 days later to court-martial the airman could appear to be tainted by unlawful command influence.

The court ruled that former Air Force Secretary Deborah Lee James and former Air Force Chief of Staff Gen. Mark Welsh, by forcing Franklin’s retirement had given the appearance of unlawful command influence “that would lead an objective, disinterested observer (to) harbor a significant doubt about the fairness of the proceeding” against Airman Rodney Boyce.

Boyce was convicted in 2014 by a military jury of assaulting and raping his former wife, who had divorced him by then. He was sentenced to four years in prison. The woman, who was also an airman, testified she’d been so terrified by attacks that left her bruised and bloodied, that she had once involuntarily urinated.

She said she’d had no interest in any legal proceedings against her husband until facial injuries caught the attention of her sergeant in 2011

Boyce was given nonjudicial punishment for assaulting her. She did not disclose the full extent of Boyce’s attacks until investigators contacted her in 2013 while looking into another woman’s rape allegations against Boyce, in a separate case that ended in acquittal.

The appellate court agreed that any convening authority would have sent the case involving the ex-wife to court-martial. It ordered that the case could be retried.

Franklin’s decision to overturn the sexual assault conviction and sentence of fighter pilot Lt. Col. James Wilkerson in 2013, when the former was commander of the Third Air Force, shocked many members of Congress and was the catalyst for sweeping changes to military law, including circumscribing commanders’ vast discretionary powers over the system.

Franklin, James and Welch could not be reached for comment.

The court argued that even though Franklin already had decided to resign, he still could have been subject to influence by the threat of being fired. “For example, if the Secretary came to believe that Lt. Gen. Franklin was obstinately “refusing” to refer “another” meritorious case to a general court-martial, she could have removed him immediately from his position of command — which likely would have caused adverse public attention and post-military career opportunities,” the court said.

The court wrote that James and Welsh “failed to take the necessary prophylactic steps” to make sure Franklin’s handling of subsequent sexual assault cases didn’t lead to the appearance of a conflict of interest. The appeals court said that after losing confidence in him, James and Welsh “failed to direct (Franklin) not to take any further action in regard to court-martial matters pending before him” or instruct him to refer court-martial matters to another convening authority as they should have.

montgomery.nancy@stripes.com
 

U.S. Court of Appeals for the Armed Forces
CREATIVE COMMONS USER MATTHEW G. BISANZ

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