United States v. Rasnick , 58 M.J. 9 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Daniel L. RASNICK, Airman Basic
U.S. Air Force, Appellant
No. 02-0851
Crim. App. No. S30004
United States Court of Appeals for the Armed Forces
Decided January 17, 2003
Counsel
For Appellant: Captain Antony B. Kolenc, Colonel Beverly B. Knott, and Major
Terry L. McElyea.
For Appellee: Major John D. Douglas, Colonel LeEllen Coacher, and Lieutenant
Colonel Lance B. Sigmon.
Military Judge: Patrick M. Rosenow
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rasnick, No. 02-0851/AF
PER CURIAM
Pursuant to his pleas of guilty, the Appellant was convicted
at a special court-martial of three specifications of disrespect
toward a superior commissioned officer, insubordinate conduct
toward a non-commissioned officer, and disobeying an order, in
violation of Articles 89, 91, and 92, Uniform Code of Military
Justice, 10 USC §§ 889, 891, 892, respectively. Officer members
sentenced him to a bad-conduct discharge, restriction to the
limits of Sheppard Air Force Base, Texas, for two months, and
forfeiture of $500 pay per month for two months. The convening
authority approved only so much of the sentence that provided
for a bad-conduct discharge and forfeiture of $500 pay for one
month. The Court of Criminal Appeals affirmed in an unpublished
opinion.
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED BY REFUSING
TO INSTRUCT THE MEMBERS THAT A PUNITIVE
DISCHARGE IS AN "INERADICABLE" STIGMA WHERE
THE ONLY REASON FOR THE REFUSAL WAS THE
MILITARY JUDGE'S MISTAKEN BELIEF THAT THE
WORD "INERADICABLE" WAS AN INCORRECT
STATEMENT OF THE LAW AND OVERSTATED THE
NEGATIVE IMPACT OF SUCH A DISCHARGE.
For the reasons set forth below, we affirm the decision of
the Court of Criminal Appeals.
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At Appellant’s court-martial, the military judge instructed
the court-martial panel as follows with respect to the
possibility of adjudging a punitive discharge:
Now members, you are advised that the 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 has served honorably. A
punitive discharge will affect an accused's
future with regard to his legal rights,
economic opportunities, and social
acceptability.
You may adjudge a bad conduct discharge.
Such a discharge deprives one of
substantially all benefits administered by
the Department of Veterans Affairs and the
Air Force establishment. A bad conduct
discharge is severe punishment and may be
adjudged for one who in the discretion of
the court warrants severe punishment for bad
conduct, even though such bad conduct may
not include commission of serious offenses
of a military or civil nature.
The instruction was patterned after the model guidance in
the Military Judges’ Benchbook, with one exception at issue in
the present appeal. In contrast to the instruction provided by
the military judge, the first sentence of the model instruction
describes the stigma of a punitive discharge as “ineradicable.”
Legal Services, Dep’t of the Army, Pamphlet 27-9, Military
Judges’ Benchbook, para. 2-6-10 (2001). The military judge
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United States v. Rasnick, No. 02-0851/AF
denied Appellant’s request to include the word “ineradicable” in
the instruction.
If a military judge declines to give a requested
instruction, the denial is reviewed under an abuse of discretion
standard. United States v. Damatta-Olivera, 37 M.J. 474, 478
(C.M.A. 1993). Although the word “ineradicable” provides an
appropriate means of describing the future impact of a punitive
discharge, see United States v. Rush, 54 M.J. 313 (C.A.A.F.), it
is not the exclusive means of doing so. The instructions
provided by the military judge in the present case adequately
advised the members that a punitive discharge was a “severe”
punishment, that it would entail specified adverse consequences,
and that it would affect Appellant’s “future with regard to his
legal rights, economic opportunities, and social acceptability.”
The instructions were sufficient to require the members to
consider the enduring stigma of a punitive discharge.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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