UNITED STATES, Appellee 

v. 

George D. B. MACDONALD, Private First Class 

U.S. Army, Appellant 

No. 14-0001 

Crim. App. No. 20091118 

United States Court of Appeals for the Armed Forces 

Argued May 13, 2014 

Decided August 27, 2014 

BAKER, C.J., delivered the opinion of the Court, in which 

ERDMANN, STUCKY, RYAN, and OHLSON, JJ., joined. 

Counsel

For Appellant: William E. Cassara, Esq. (argued); Lieutenant 

Colonel Jonathan F. Potter and Captain Robert H. Meek III (on 

brief); Captain Brandon H. Iriye. 

For Appellee: Captain Daniel M. Goldberg (argued); Colonel John 

P. Carrell, Lieutenant Colonel James L. Varley, and Major 

Catherine L. Brantley (on brief); Major Robert Rodrigues. 

Military Judge: James L. Pohl 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. MacDonald, No. 14-0001/AR 

2 

Chief Judge BAKER delivered the opinion of the Court. 

 A panel of members sitting as a general court-martial 

convicted Appellant, contrary to his pleas, of one specification 

of resisting apprehension in violation of Article 95, Uniform 

Code of Military Justice (UCMJ), one specification of 

premeditated murder in violation of Article 118, UCMJ, and two 

specifications of assault in violation of Article 128, UCMJ. 10 

U.S.C. §§ 895, 918, 928 (2012). Appellant was sentenced to a 

reprimand, reduction to E-1, forfeiture of all pay and 

allowances, confinement for life without the eligibility of 

parole, and a dishonorable discharge. The convening authority 

approved the adjudged sentence. Appellant then appealed to the 

United States Army Court of Criminal Appeals (CCA), which 

focused on two issues: (1) whether the military judge erred in 

quashing Appellant’s subpoena request to Pfizer, Inc. (Pfizer) 

for additional data; and (2) whether the military judge abused 

his discretion in denying Appellant an instruction on 

involuntary intoxication. On July 3, 2013, the CCA held that 

the military judge erred in failing to enforce the subpoena, but 

the error was harmless beyond a reasonable doubt. United States 

v. MacDonald, No. ARMY 20091118, 2013 CCA LEXIS 548, at *25, 

2013 WL 3376714, at *9 (A. Ct. Crim. App. July 3, 2013) 

(unpublished). The CCA also concluded the military judge abused 

his discretion in refusing to issue the involuntary intoxication 
United States v. MacDonald, No. 14-0001/AR 

3 

instruction but the error was harmless beyond a reasonable 

doubt. Id. at *25-*26, 2013 WL 3376714, at *9. On this basis, 

the CCA determined that the findings and sentence were correct 

in law and fact, and affirmed. Id. at *32, 2013 WL 3376714, at 

*10. 

 On September 3, 2013, Appellant appealed to this Court. 

United States v. MacDonald, 73 M.J. 40 (C.A.A.F. 2013). We 

granted review of two issues: 

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED 

IN DETERMINING THAT THE MILITARY JUDGE’S ERROR IN 

QUASHING A SUBPOENA ISSUED TO PFIZER, INC., TO 

PRODUCE RELEVANT AND NECESSARY DOCUMENTS 

REGARDING CLINICAL TRIALS, ADVERSE EVENT REPORTS, 

AND POST-MARKET SURVEILLANCE OF THE DRUG 

VARENICLINE WAS HARMLESS BEYOND A REASONABLE 

DOUBT. 

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION 

IN DENYING A DEFENSE REQUESTED INSTRUCTION ON 

INVOLUNTARY INTOXICATION, AND ERRED IN FAILING TO 

INSTRUCT THE MEMBERS ON THE EFFECT OF 

INTOXICATION ON APPELLANT’S ABILITY TO FORM 

SPECIFIC INTENT AND PREMEDITATION. 

United States v. MacDonald, 73 M.J. 238 (C.A.A.F. 2014) (order 

granting review). Because we decide Issue II in Appellant’s 

favor and reverse, we need not reach Issue I. 

SUMMARY 

The ultimate questions in resolving the second issue in 

this case are whether Appellant’s ingestion of varenicline 

(popularly known as and hereinafter referred to as Chantix) 
United States v. MacDonald, No. 14-0001/AR 

4 

should have resulted in an involuntary intoxication instruction 

and, if so, whether a mental responsibility instruction 

otherwise rendered the absence of such an instruction harmless 

beyond a reasonable doubt. 

The CCA determined that the military judge erred in failing 

to give an instruction on involuntary intoxication despite the 

technically imprecise instruction proffered by the defense. In 

the words of the CCA, “[t]he evidence presented at trial raised 

the involuntary intoxication defense.” MacDonald, 2013 CCA 

LEXIS 548, at *26, 2013 WL 3376714, at *8. “The proposed 

instruction was essentially correct . . . .” Id. at *27, 2013 

WL 3376714, at *9. And, “[t]he judge effectively denied the 

existence of an involuntary intoxication defense.” Id. at *21, 

2013 WL 3376714, at *7. Because Appellant put on “some 

evidence” that “reasonably raised” the defense of involuntary 

intoxication in the form of evidence of ingestion as well as 

expert testimony regarding the potential side effects of 

Chantix, we hold that the military judge had a sua sponte duty 

to instruct on the defense of involuntary intoxication and 

therefore agree with the CCA’s ultimate determination that the 

military judge erred in failing to give a separate and distinct 

involuntary intoxication instruction. 

 Therefore, the key question is whether this instructional 

error was harmless beyond a reasonable doubt. The CCA concluded 
United States v. MacDonald, No. 14-0001/AR 

5 

that the error was harmless because the military judge’s 

instruction on mental responsibility otherwise covered the 

defense of involuntary intoxication. Further, “[e]ven if the 

requested instruction were given, it is clear beyond a 

reasonable doubt that the panel would have found appellant 

guilty of the offenses charged in this case. . . . Appellant 

cannot escape the overwhelming evidence of his mental 

responsibility for the offenses he committed.” Id. at *29, 2013 

WL 3376714, at *9. Similarly, with respect to the military 

judge’s sua sponte duty, the CCA determined that “even if such 

an instruction were rendered, a rational panel would have found 

appellant guilty of premeditated murder, as well as the other 

offenses charged, in light of the overwhelming evidence that 

appellant was fully able to form the intent necessary to be held 

criminally liable.” Id. at *29, 2013 WL 3376714, at *9. We 

disagree. 

 The defense of lack of mental responsibility requires 

demonstration that the accused suffered from a mental disease or 

defect and that as a result he was unable to appreciate the 

nature and quality or wrongfulness of his act. Article 50a, 

UCMJ, 10 U.S.C. § 850a (2012). In turn, the defense of 

involuntary intoxication “require[s] a finding that there has 

been involuntary ingestion of an intoxicant” and that the 

accused was “unable to appreciate the nature and quality or 
United States v. MacDonald, No. 14-0001/AR 

6 

wrongfulness of his acts.” United States v. F.D.L., 836 F.2d 

1113, 1117 (8th Cir. 1988). As the CCA explained: 

the defense of involuntary intoxication is similar to 

that of lack of mental responsibility in that the 

defense must prove by clear and convincing evidence 

that he did not appreciate the nature and quality or 

wrongfulness of his acts, but different in that he 

need not prove that he suffered a severe mental 

disease or defect, but rather that he was intoxicated 

by some substance that results in what amounts to 

legal insanity. 

MacDonald, 2013 CCA LEXIS 548, at *26, 2013 WL 3376714, at *8 

(emphasis added). 

 Without an involuntary intoxication instruction, it is 

possible that the members may have concluded that they could not 

acquit Appellant without first finding a mental disease or 

defect. It is similarly possible that the members did not 

consider, as a separate matter, whether involuntary intoxication 

may have prevented Appellant from appreciating the nature and 

quality or wrongfulness of his act. Further, we cannot be 

confident beyond a reasonable doubt, as the CCA was, that the 

members would have concluded Appellant appreciated the 

wrongfulness of his actions if they had been properly instructed 

on involuntary intoxication with respect to Chantix. 

Consideration of such evidence was and is in the first instance 

the responsibility of the trier of fact. 

 As a result, we are not confident the error did not 

contribute to the verdict in this case. 
United States v. MacDonald, No. 14-0001/AR 

7 

BACKGROUND 

The Events Leading Up to May 18, 2008

At the time of his arrest, Appellant was nineteen years old 

and had been in the service for approximately a year. Prior to 

enlisting, Appellant was an active member of his community and 

led various volunteering and mentoring projects as an Eagle 

Scout. Upon turning eighteen, both Appellant and his twin 

brother enlisted in the United States Army. After successfully 

completing Infantry Training and the Airborne Course, they were 

both selected for an appointment to the United States Military 

Academy Preparatory School (USMAPS), class of 2009. 

During the pendency of his matriculation to USMAPS, 

Appellant was assigned to the supply room at Delta Company, Fort 

Benning, Georgia. Multiple coworkers described him as a 

peaceful person. On April 18, 2008, a week shy of his 

nineteenth birthday, Appellant visited the Martin Army Community 

Hospital to seek help in quitting smoking. According to the 

medical record, he sought medical help because he had smoked up 

to a half pack of cigarettes daily for the past three years. 

During the visit, the Army doctor prescribed Chantix to 

Appellant as a smoking cessation drug. On May 18, 2008, one 

month after the Army doctor prescribed Chantix, Appellant 

fatally attacked Private (PVT) Bulmer while he was sleeping, 
United States v. MacDonald, No. 14-0001/AR 

8 

stabbing him to death. Prior to this attack, Appellant did not 

know nor had he ever interacted with PVT Bulmer. 

At the time of Appellant’s attack, PVT Bulmer was a twentythree-year-old recruit who had been in training for three days. 

PVT Bulmer was recovering from surgery he underwent prior to his 

arrival at Fort Benning. Because of this, PVT Bulmer had been 

excused by his drill sergeant from drill and ceremony training 

that day and was instructed to wait in the shade next to the 

barracks. Undetected, PVT Bulmer slipped away and went to sleep 

in his rack. 

Meanwhile, Appellant was in his room reading a book and 

waiting to do laundry. For some days, however, according to his 

statement, Appellant had been experiencing “new and strange 

thoughts” including a “person [was] telling me . . . dangerous 

things that arent [sic] me.” These included violent thoughts of 

killing someone. In fact, the night before the attack, 

Appellant had asked his girlfriend whether she would still love 

him if he killed someone. 

Appellant eventually left his room to do laundry and 

without thinking he placed a small, black, double-edged knife 

into his pocket that he used to cut string. He headed toward 

the closest laundry facility, which was in the same bay as PVT 

Bulmer. Along the way, Appellant happened upon a sleeping PVT 

Bulmer. According to his confession, something “snapped” and he 
United States v. MacDonald, No. 14-0001/AR 

9 

went “crazy,” attacking PVT Bulmer with the knife in his pocket. 

Appellant first stabbed PVT Bulmer in the neck, intending it to 

be a fatal blow. PVT Bulmer awakened mid-attack and tried to 

ward off the blows. His resulting screams and pleas for help 

drew the attention of nearby trainees. Two soldiers saw the 

assault through a window. When they realized one man was 

attacking another, they entered PVT Bulmer’s room and 

intervened. Lashing out at one of the soldiers who tried to 

stop the attack, Appellant fled to his room, covered in PVT 

Bulmer’s blood. There, Appellant showered, placed all the 

bloody clothes into a backpack, and hastily left his room 

wearing civilian clothes. Although the soldiers’ intervention 

had stopped Appellant’s assault, PVT Bulmer had already suffered 

more than fifty knife wounds that would ultimately prove fatal. 

 By the time Appellant left his room, a general alert had 

been issued to apprehend the man who attacked PVT Bulmer. A 

noncommissioned officer (NCO) patrolling the periphery of Fort 

Benning found Appellant walking along the tree line away from 

the scene of the crime. When questioned by the NCO, Appellant 

said he was going to buy a new pair of sneakers on post. 

Suspecting something was amiss, the NCO questioned Appellant 

further at which point Appellant attempted to flee. The NCO 

chased him and physically subdued him until military police 

arrived and apprehended Appellant. 
United States v. MacDonald, No. 14-0001/AR 

10 

 Taken into custody, Appellant waived his right to remain 

silent and admitted he had stabbed PVT Bulmer. In a handwritten 

statement, he described an internal struggle and that he “was 

someone else, something was wrong” and that he “want[ed] help.” 

Appellant also acknowledged that he “didn’t even know the guy 

[PVT Bulmer], didnt [sic] think about it before-hand . . . . 

[w]as telling myself ‘NO’ . . . [this] wasn’t me.” “I fought 

myself with the idea,” he continued, stating that, “I guess I 

thought I was supposed to kill this man.” Appellant wrote that 

“I was someone else, something was wrong . . . . I want help.” 

When asked why he stabbed PVT Bulmer, Appellant replied by 

writing “Insanity, temp.” because “this is not who I am, I went 

crazy for a while, I should have seen the signs, was hurting, I 

snapped Im [sic] so sorry.” He also admitted that he felt 

“stretched thin” due to his extended stay as a private at Fort 

Benning and complained of abuse by drill instructors. Appellant 

ended his confession by writing “Im [sic] very sorry, dont [sic] 

know what happened to me. Sorry.” 

The Escalation of Chantix Warnings

 Chantix was approved by the Food and Drug Administration 

(FDA) in May 2006, at which point the most common side effects 

listed in the labeling were nausea, changes in dreaming, 

constipation, gas, and vomiting. Dep’t of Health & Human 

Servs., FDA, NDA 021928, Chantix, at 25 (May 2006) (Chantix 
United States v. MacDonald, No. 14-0001/AR 

11 

approval label), available at

http://www.accessdata.fda.gov/drugsatfda_docs/nda/2006/021928_s0

00_Chantix_PrntLbl.pdf (last visited Aug. 27, 2014). However, 

over the course of the next two years, the nature and scope of 

the warnings rapidly escalated. By November 2007, the FDA 

issued an update noting that “suicidal thoughts and aggressive 

and erratic behavior” were reported in patients taking Chantix. 

Dep’t of Health & Human Servs., FDA, Early Commc’n About an 

Ongoing Safety Rev. of Varenicline (marketed as Chantix) (Nov. 

20, 2007), available at

http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformat

ionforPatientsandProviders/DrugSafetyInformationforHeathcareProf

essionals/ucm070765.htm (last visited Aug. 27, 2014). The 

update revealed that “many cases reflect new-onset of depressed 

mood, suicidal ideation, and changes in emotion and behavior 

within days to weeks of initiating Chantix treatment.” Id. 

Three months later, in February 2008, the FDA issued an Alert to 

“highlight important revisions to the WARNINGS and PRECAUTIONS 

sections of the full prescribing information . . . regarding 

serious neuropsychiatric symptoms” associated with Chantix. 

Dep’t of Health & Human Servs., FDA, Info. for Healthcare 

Prof’ls: Varenicline (marketed as Chantix) (Feb. 1, 2008), 

available at

http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformat
United States v. MacDonald, No. 14-0001/AR 

12 

ionforPatientsandProviders/ucm124818.htm (last visited Aug. 27, 

2014). Specifically, the Alert acknowledged that since the FDA 

issued their November 2007 communication, “it appears 

increasingly likely that there is an association between Chantix 

and serious neuropsychiatric symptoms.” Id. The Alert listed 

the symptoms as “changes in behavior, agitation, depressed mood, 

suicidal ideation, and attempted and completed suicide.” Id. 

The February Alert also stated that while most symptoms 

“developed during . . . treatment,” for others “symptoms 

developed following withdrawal of Chantix therapy.” Id. 

On May 16, 2008, two days before Appellant killed PVT 

Bulmer, the FDA issued a Public Health Advisory, the third 

warning in less than six months. Dep’t of Health & Human 

Servs., FDA, Pub. Health Advisory: Important Info. on Chantix

(varenicline) (May 16, 2008), available at

http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformat

ionforPatientsandProviders/DrugSafetyInformationforHeathcareProf

essionals/PublicHealthAdvisories/ucm051136.htm (last visited 

Aug. 27, 2014). This time the Alert urged patients to stop 

taking Chantix and to call their doctor right away if they, or 

their family or caregiver, noticed “agitation, depressed mood, 

or changes in behavior that are not typical for you, or if you 

have suicidal thoughts or actions.” Id. The Advisory stated 

that “Chantix may cause worsening of a current psychiatric 
United States v. MacDonald, No. 14-0001/AR 

13 

illness . . . and may cause an old psychiatric illness to 

reoccur.” Id. The Advisory also stated that patients may 

experience “vivid, unusual, or strange dreams.” Id. 

By July 2009, the FDA issued a Black Box warning -- the 

strongest FDA warning level before a drug is pulled from the 

market. Dep’t of Health & Human Servs., FDA, Chantix, at 1 

(July 2009) (updated Chantix safety label), available at

http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021928s

012s013lbl.pdf (last visited Aug. 27, 2014). This Black Box 

warning stated: 

All patients being treated with CHANTIX should be 

observed for neuropsychiatric symptoms including 

changes in behavior, hostility, agitation, depressed 

mood, and suicide-related events, including ideation, 

behavior, and attempted suicide. These symptoms, as 

well as worsening of pre-existing psychiatric illness 

and completed suicide have been reported in some 

patients attempting to quit smoking while taking 

CHANTIX in the post-marketing experience. 

Id. (emphasis added). In addition to the Black Box warning, 

this update included the following information under the 

WARNINGS section: 

Serious neuropsychiatric symptoms have been reported in 

patients being treated with CHANTIX (See Boxed Warning, 

PRECAUTIONS/Information for patients, and ADVERSE 

REACTIONS/Post-Marketing Experience). These post-marketing 

reports have included changes in mood (including depression 

and mania), psychosis, hallucinations, paranoia, delusions, 

homicidal ideation, hostility, agitation, anxiety, and 

panic, as well as suicidal ideation, suicide attempt, and 

completed suicide. 

Id. at 9 (second emphasis added). 
United States v. MacDonald, No. 14-0001/AR 

14 

Similar warnings were also included in the section titled 

“Information for Patients” under PRECAUTIONS. For example, one 

of the bullets in this section noted that “some patients have 

experienced . . . psychosis, hallucinations, paranoia, 

delusions, homicidal ideation, aggression, anxiety, and panic.” 

Id. at 13 (emphasis added). Likewise, in the “Post-Marketing 

Experience” section under ADVERSE REACTIONS, one of the 

paragraphs noted “[t]he following adverse events have been 

reported during post-approval use of CHANTIX . . . [t]here have 

been reports of . . . homicidal ideation, aggression, hostility, 

anxiety, and panic.” Id. at 17 (emphasis added). 

Appellant’s Defense Theory at Trial

Appellant argued that use of the smoking cessation drug 

Chantix was a key factor in his violent, homicidal outburst 

leading to the tragic death of PVT Bulmer. This defense theory 

was premised on showing Appellant had Chantix in his system and, 

given this, that Chantix was a factor in Appellant’s fatal 

stabbing of PVT Bulmer. 

1. Presence of Chantix in Appellant’s System 

On May 19, 2008 -- a day after the fatal stabbing -- 

Appellant voluntarily supplied a sample of blood and urine. 

This was later tested by the Armed Forces Institute of Pathology 

(AFIP) but came back negative for Chantix. From Appellant’s 

perspective, however, the reliability of the AFIP tests was 
United States v. MacDonald, No. 14-0001/AR 

15 

questionable, particularly because AFIP did not have the 

stability studies necessary for testing pursuant to the correct 

toxicological standards. Appellant argued that a drug “degrades 

in urine or blood over time depending on the manner in which it 

is stored,” and the results can be affected by tolerance levels 

of the testing equipment. 

Subsequently, Appellant had his previously collected sample 

of urine independently tested for the presence of Chantix at NMS 

Labs -- a private laboratory -- in June 2009, over a year after 

the death of PVT Bulmer. In contrast to the earlier AFIP test, 

this time the laboratory had the stability studies from Pfizer. 

The NMS results reported positive for Chantix. Although 

questions were raised by both sides about whether the test 

accurately represented the actual concentration of Chantix in 

Appellant’s system at the time of the incident -- due to the 

uncertainty regarding the conditions under which the sample was 

stored and transported, as well as the potential impact on the 

test result given the passage of time -- the parties proceeded 

at trial on the basis that there was Chantix in Appellant’s 

system at the time of the incident, as noted in the stipulation 

of fact. 

Based on this positive test, Appellant made a motion for 

the military judge to reconsider the quashing of an earlier 

subpoena requesting data from Pfizer regarding Chantix and its 
United States v. MacDonald, No. 14-0001/AR 

16 

potentially harmful effects. Appellant requested this 

reconsideration for several reasons; namely, the positive test 

result demonstrated the presence of Chantix in Appellant’s 

system at the time of the incident, a new and more severe 

warning about Chantix had been issued, and the Rules for CourtsMartial (R.C.M.) 706 board had not considered the potential of 

Chantix influencing Appellant.1

 

However, the military judge denied this motion. In doing 

so, the military judge concluded that “‘[i]t doesn’t make any 

difference as far as [he could] see whether [Appellant’s mental 

condition was] caused by Chantix or not caused by Chantix. 

Chantix is an explanation.’” MacDonald, 2013 CCA LEXIS 548, at 

*13, 2013 WL 3376714, at *4. He continued that: 

the court does not believe that the new evidence or 

that anything has changed since its last ruling. The 

court still believes the proper standard is R.C.M. 703 

because this is a court order to a third party, and 

therefore the defense motion for a reconsideration of 

its ruling of 24 June is hereby denied. 

Id. at *13-*14, 2013 WL 3376714, at *4. 

2. Neuropsychiatric Symptoms Associated with Chantix and 

the Involuntary Intoxication Instruction 

During trial, Appellant provided evidence that Chantix was 

subject to a number of escalating FDA warnings about its 

 

1

 Appellant also argued that Dr. Lupcho -- the psychologist that 

did the R.C.M. 706 evaluation -- “[n]ever factored into any of 

her analysis whether or not there was a pharmaceutical or 

pharmacological basis for the actions of Private MacDonald.” 
United States v. MacDonald, No. 14-0001/AR 

17 

potential side effects. A defense expert in forensic 

psychiatry, Dr. Glenmullen, provided testimony on the effects of 

Chantix on the brain’s neurochemistry. Specifically, Dr. 

Glenmullen described that the level of dopamine in the brain 

affects a person’s behavior and “probably has one of the most 

profound effects on human emotion and behavior.” Increases in 

dopamine can cause one to “feel more agitated, irritable, 

anxious, sleepless; keep turning it up and up you can get manic; 

keep turning it up and up you can get psychotic.” Dr. 

Glenmullen elaborated that because Chantix effectively causes an 

increase of dopamine in the brain, it can be correlated with 

behavioral changes. Further, though the side effects of 

increased dopamine vary, some of the more severe side effects 

are more likely when there are underlying mental health issues 

in the patient. 

To that end, Dr. Glenmullen conducted an assessment of 

Appellant and interviewed his friends and family members, 

concluding that Appellant suffered from three diagnoses of 

untreated psychiatric conditions. Specifically, Appellant had a 

“schizoid personality disorder which was kind of his reaction to 

his childhood,” as well as a “history of long term mild 

depression” and “psychosis . . . [that included] auditory 

hallucinations.” These conditions predated Appellant’s 

treatment with Chantix. Specialist Harrison -- who intervened 
United States v. MacDonald, No. 14-0001/AR 

18 

during the stabbing of PVT Bulmer -- testified that Appellant 

was acting “completely crazy,” “[l]ike he was possessed.” 

Another expert, Dr. Pancholi, also testified that based on her 

assessment, Appellant previously suffered from psychotic 

disorder, schizoid personality disorder, and dysthymic disorder. 

On this basis, she said she would not have prescribed Chantix to 

a person with these underlying psychiatric issues. In addition, 

another defense expert -- Thomas Moore -- testified that due to 

the serious psychiatric side effects of Chantix, a number of 

defense and civil agencies had banned the use of this drug. For 

example, the Department of Defense banned the use of this drug 

for missile crews and aircraft personnel. Similarly, the 

Federal Aviation Administration restricted the use of Chantix by 

all pilots and air controllers and the Department of 

Transportation banned its use by people driving trucks. 

During trial, Appellant argued that he was under the 

influence of Chantix both before and during the fatal stabbing 

of PVT Bulmer. To that end, Appellant requested an instruction 

on involuntary intoxication, which he argued could be a complete 

defense to the charges or, in the alternative, could negate the 

element of premeditation and intent.2

 Specifically, Appellant 

requested the following instruction: 

 

2

 The question this Court is asked to address is whether 

Appellant was entitled to an involuntary intoxication 
United States v. MacDonald, No. 14-0001/AR 

19 

To invoke the defense of involuntary intoxication, the 

defendant must produce sufficient evidence to raise a 

reasonable doubt as to the voluntariness of his 

intoxication. Involuntary intoxication results from 

fraud, trickery or duress of another, accident or 

mistake on defendant’s part, pathological condition, 

or ignorance as to the effects of prescribed 

medication and is a complete defense where the 

defendant is so intoxicated that he is unable to 

distinguish between right and wrong, the same standard 

as applied in an insanity defense. Salahdin v. 

Gibson, 275 F.3d 1211. 

In support, Appellant relied on his experts’ testimony. 

Specifically, Dr. Glenmullen testified that at the time of the 

incident, Appellant had “substance intoxication” where the 

substance was Chantix which “essentially catapult[ed] him into 

the equivalent of an acute psychotic break in a schizophrenic.” 

During the four weeks Appellant took Chantix, Dr. Glenmullen 

noted that Appellant became more “paranoid” and “thought that 

people were out to get him,” eventually developing “homicidal 

thoughts” during the fourth week of taking Chantix. Dr. 

Glenmullen further testified that Appellant’s preexisting 

neuropsychiatric condition was exacerbated by Chantix and 

because of a Chantix-induced psychosis, he would not have been 

able to possess the conscious intent to kill. Moreover, Dr. 

 

instruction, not whether he was entitled to the instruction 

requested by Appellant which, admittedly, was flawed but not 

fatally so. Because we hold that the military judge had a sua 

sponte duty to instruct on involuntary intoxication we do not 

reach the issue of whether the military judge should have 

instructed despite the technically imprecise instruction 

proffered by Appellant. 
United States v. MacDonald, No. 14-0001/AR 

20 

Glenmullen specifically referenced “substance intoxication” and 

testified on cross-examination that involuntary intoxication 

occurs when an individual takes a prescription drug without 

correct warnings and is thereby not responsible for his 

behavior. In fact, when Appellant raised this issue of the 

escalating Chantix warnings at trial, he noted that these facts 

went toward the issue of involuntary intoxication and mental 

responsibility generally. 

Of note, the Government also offered an instruction on 

involuntary intoxication, albeit using different language. 

However, the military judge declined to give this instruction or 

an alternative involuntary intoxication instruction on the basis 

that his mental responsibility instruction was sufficient. 

During this exchange, the military judge elaborated: 

MJ: Got it. But that’s not a correct statement of 

the law. It says here, it says where the 

defendant is so intoxicated [he] is unable to 

distinguish between right from wrong the same 

standard is applied in an insanity defense. 

Don’t you need a mental disease -- a serious 

mental disease or defect causing the accused not 

to appreciate the wrongfulness of his act or the 

quality of his act? 

DC: Sir, that’s what I got out of the case, the 

federal case. 

MJ: I understand that, but I’m talking about under 

military law that’s passed by Congress does not 

it require a superior -- 

DC: But I found no military case law to support this 
United States v. MacDonald, No. 14-0001/AR 

21 

instruction, sir. But that said, that doesn’t 

mean the instruction shouldn’t be given. 

MJ: No, I agree. I agree that we can look at other 

courts for guidance in a particular area. But 

Congress is legislator in this area and in my 

view we’re bound by the congressional act, and 

therefore I will give the mental responsibility 

instruction I discussed earlier, but not that 

particular one. 

Accordingly, the military judge did not provide an 

involuntary intoxication instruction. Ultimately, Appellant was 

convicted of all charges and sentenced to a reprimand, reduction 

to E-1, total forfeitures, confinement to life without the 

eligibility of parole, and a dishonorable discharge. The 

convening authority approved the sentence as adjudged. Though 

the CCA determined that the military judge erred in failing to 

issue the involuntary intoxication instruction, the CCA also 

held this error to be harmless beyond a reasonable doubt. 

Appellant then appealed to this Court. 

STANDARD OF REVIEW 

The adequacy of a military judge’s instructions is reviewed 

de novo. United States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 

2006). “The military judge bears the primary responsibility for 

ensuring that mandatory instructions . . . are given and given 

accurately.” United States v. Miller, 58 M.J. 266, 270 

(C.A.A.F. 2003); see also R.C.M. 920(a). 
United States v. MacDonald, No. 14-0001/AR 

22 

If an affirmative defense is reasonably raised by the 

evidence, the military judge has a sua sponte duty to instruct 

the members on that defense. United States v. Davis, 53 M.J. 

202, 205 (C.A.A.F. 2000). A defense is reasonably raised when 

“some evidence, without regard to its source or credibility, has 

been admitted upon which members might rely if they chose.” 

United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012) 

(internal quotation marks and citations omitted); United States 

v. Watford, 32 M.J. 176, 178 (C.M.A. 1991) (noting a defense is 

reasonably raised when there is “some evidence” to which the 

panel members “might attach credence”). Any doubt regarding 

whether an affirmative defense instruction is in order should be 

resolved in favor of the accused. Davis, 53 M.J. at 205. 

 “Where an instructional error raises constitutional 

implications, this Court has traditionally tested the error for 

prejudice using a “‘harmless beyond a reasonable doubt’ 

standard.” United States v. Davis, 73 M.J. 268, 271 (C.A.A.F. 

2014) (quoting United States v. Wolford, 62 M.J. 418, 420 

(C.A.A.F. 2006)). The test for determining if the 

constitutional error is harmless is “whether it appears ‘beyond 

a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.’” United States v. 

McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (quoting Chapman v. 

California, 386 U.S. 18, 24 (1967)). “Whether the error is 
United States v. MacDonald, No. 14-0001/AR 

23 

harmless beyond a reasonable doubt is a question of law that we 

review de novo.” United States v. Simmons, 59 M.J. 485, 489 

(C.A.A.F. 2004). 

ANALYSIS 

The threshold questions presented are whether the military 

judge should have instructed on involuntary intoxication and 

whether there was prejudice in the absence of this instruction. 

Involuntary intoxication is an affirmative defense under 

the UCMJ.3

 Although not expressly listed as an affirmative 

defense under R.C.M. 916, not all affirmative defenses are 

listed. See Davis, 73 M.J. at 272 n.5 (C.A.A.F. 2014) 

(“Although, R.C.M. 916 does not expressly list defense of 

property as a special defense, this Court and its predecessor 

have long recognized defense of property as an available defense 

in the military justice system.”). R.C.M. 916 states that the 

term “defenses” includes “any special defense which, although 

not denying that the accused committed the objective acts 

constituting the offense charged, denies, wholly or partially, 

criminal responsibility for those acts.” By its own terms, 

R.C.M. 916 provides an illustrative rather than an exhaustive 

 

3

 The Rules for Courts–Martial suggest that the terms “special 

defense” and “affirmative defense” are interchangeable. R.C.M. 

916(a) Discussion; see also Davis, 73 M.J. at 271 n.3. In this 

case, it is more accurate to use the term “affirmative defense” 

because the accused bears the burden of showing it by clear and 

convincing evidence.
United States v. MacDonald, No. 14-0001/AR 

24 

list of defenses. Further, a number of courts -- including this 

Court -- recognize involuntary intoxication as an affirmative 

defense. See, e.g., United States v. Hensler, 44 M.J. 184, 187-

88 (C.A.A.F. 1996); United States v. Craig, 3 C.M.R. 304, 311 

(A.B.R. 1952) (“The general rule that involuntary intoxication 

excuses an accused from criminal responsibility applies where 

one involuntarily becomes drunk by being compelled to drink 

against his will, or through another’s fraud or stratagem, or by 

taking liquor prescribed by a physician.”); see also Waller v. 

Tucker, No. 11-21841-CIV-JORDAN, 2011 U.S. Dist. LEXIS 156455, 

at *40-*44, 2011 WL 9350129, at *14-*15 (S.D. Fla. Dec. 12, 

2011); Lucherini v. State, 932 So. 2d 521 (Fla. Dist. Ct. App. 

2006); People v. Garcia, 113 P.3d 775 (Colo. 2005); Colon v. 

State, 568 S.E.2d 811 (Ga. Ct. App. 2002); see generally Phillip 

E. Hassman, Annotation, When Intoxication Deemed Involuntary So 

as to Constitute a Def. to Crim. Charge, 73 A.L.R.3d 195 (1976); 

2 Crim. Prac. Manual § 40:2 (2014). In Hensler, this Court 

recognized involuntary intoxication as an affirmative defense 

and the Government has not challenged that legal conclusion at 

trial or on appeal. Rather, the Government challenge has been 

to the scope of the defense and its factual applicability in 

this case. 

Here, the CCA determined Appellant provided some evidence 

at trial that reasonably raised the defense of involuntary 
United States v. MacDonald, No. 14-0001/AR 

25 

intoxication and the military judge erred in not providing a 

corresponding instruction. The CCA did not analyze whether 

involuntary intoxication was an affirmative defense, but 

summarily concluded: 

As to whether the military judge had a sua sponte

duty to address involuntary intoxication as it related 

to the questions of intent and premeditation, we also 

find that even if such an instruction were rendered, a 

rational panel would have found appellant guilty of 

premeditated murder, as well as the other offenses 

charged, in light of the overwhelming evidence that 

appellant was fully able to form the intent necessary 

to be held criminally liable. 

MacDonald, 2013 CCA LEXIS 548, at *29, 2013 WL 3376714, at *9. 

We hold that the military judge had a sua sponte 

responsibility to instruct. However, unlike the CCA, we are not 

confident the absence of an involuntary intoxication instruction 

did not contribute to the verdict. In determining that the 

instructional error was harmless beyond a reasonable doubt, the 

CCA relied on two related conclusions. First, “[t]he ultimate 

issue to be decided by the panel relative to each [defense] is 

sufficiently equivalent to ensure the reliability of the 

convictions in this case.” Id. at *29, 2013 WL 3376714, at *9. 

Second, “even if such an instruction were rendered, a rational 

panel would have found appellant guilty of premeditated murder, 

as well as the other offenses charged, in light of the 

overwhelming evidence that appellant was fully able to form the 
United States v. MacDonald, No. 14-0001/AR 

26 

intent necessary to be held criminally liable.” Id. at *29, 

2013 WL 3376714, at *9. We address each argument in turn. 

The military judge instructed the members on mental 

responsibility as well as partial mental responsibility, which 

covered whether or not Appellant was suffering from a mental 

disease or defect at the time of the crime. In doing so, the 

military judge relied on Article 50a, UCMJ: 

It is an affirmative defense in a trial by courtmartial that, at the time of the commission of the 

acts constituting the offense, the accused, as a 

result of a severe mental disease or defect, was 

unable to appreciate the nature and quality or the 

wrongfulness of the acts. Mental disease or defect 

does not otherwise constitute a defense. 

The accused has the burden of proving the defense of 

lack of mental responsibility by clear and convincing 

evidence. 

Article 50a(a)-(b), UCMJ; see also 18 U.S.C. § 17; United States 

v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001). Specifically, the 

military judge’s instructions read: 

If you determine that, at the time of the offenses, 

the accused was suffering from a severe mental disease 

or defect, then you must decide whether, as a result 

of that severe mental disease or defect, the accused 

was unable to appreciate the nature and quality or 

wrongfulness of his conduct. 

If the accused was able to appreciate the nature and 

quality and the wrongfulness of his conduct, he is 

criminally responsible; and this is so regardless of 

whether the accused was then suffering from a severe 

mental disease or defect. 

On the other hand, if the accused had a delusion of 

such a nature that he was unable to appreciate the 

nature and quality or wrongfulness of his acts, the 
United States v. MacDonald, No. 14-0001/AR 

27 

accused cannot be held criminally responsible for his 

acts, provided such a delusion resulted from a severe 

mental disease or defect. 

To summarize, you must first determine whether the 

accused, at the time of these offenses, suffered from 

a severe mental disease or defect. If you are 

convinced by clear and convincing evidence that the 

accused did suffer from a severe mental disease or 

defect, then you must further consider whether he was 

unable to appreciate the nature and quality or the 

wrongfulness of his conduct. If you are convinced 

that the accused suffered from a severe mental disease 

or defect, and you are also convinced by clear and 

convincing evidence that he was unable to appreciate 

the nature and quality or wrongfulness of his conduct, 

then you must find the accused not guilty only by 

reason of lack of mental responsibility. On the other 

hand, you may not acquit the accused on the ground of 

lack of mental responsibility, absent the accused 

suffering from a severe mental disease or defect, or 

if you believe that he was able to appreciate the 

nature and quality and wrongfulness of his conduct. 

The military judge also gave an instruction on partial 

mental responsibility, in which he stated that “[i]n determining 

this issue you must consider all relevant facts and 

circumstances and the evidence presented on the issue of lack of 

mental responsibility.” He also noted that members should 

consider, “in connection with all the relevant facts and 

circumstances, evidence tending to show that the accused may 

have been suffering from a mental disease, defect, condition or 

disorder of such consequence and degree as to deprive him of the 

ability to entertain these states of mind.” The military judge 

reinforced his instruction by asking the members to “remember 

that the defense of lack of mental responsibility, that is, 
United States v. MacDonald, No. 14-0001/AR 

28 

insanity, and evidence that the accused may have lacked the 

required state of mind are separate defenses although the same 

evidence may be considered with respect to both.” However, as 

the CCA noted, the “judge’s failure to provide the [involuntary 

intoxication] instruction was aggravated by his failure to even 

mention Chantix as relevant to the panel’s consideration of the 

defense of lack of mental responsibility and on the question of 

intent and seriously impaired the defense presentation.” 

MacDonald, 2013 CCA LEXIS 548, at *28, 2013 WL 3376714, at *9. 

Because both parties rely on this Court’s Hensler decision 

in support of their argument that involuntary intoxication is 

either distinct from or subsumed within the defense of mental 

responsibility, we address it in detail here. And, in fairness 

to the military judge and the parties, the case can be read to 

support either proposition. 44 M.J. at 187. Therefore, it is 

important to distinguish the differences between Hensler and the 

present case. 

In Hensler, the appellant raised a defense of involuntary 

intoxication against charges of conduct unbecoming an officer 

and fraternization. At trial, the appellant argued she lacked 

mental responsibility because of “a confluence of her drugs, her 

personality traits, her depression, and the introduction of 

alcohol.” Id. at 187 (internal quotation marks omitted). “The 

military judge provided the members the traditional instruction 
United States v. MacDonald, No. 14-0001/AR 

29 

on the insanity defense,” instructing “them that they could 

presume the accused to be sane unless they were persuaded by 

clear and convincing evidence that she suffered from a severe 

mental disease or defect and that, as a result of her severe 

mental disease or defect, she was unable to appreciate the 

nature and quality or wrongfulness” of her actions. United 

States v. Hensler, 40 M.J. 892, 895-96 (N.M.C.M.R. 1994), aff’d, 

44 M.J. 184 (C.A.A.F. 1996). The military judge referenced the 

term “involuntary intoxication” with respect to the issue of 

whether the appellant “knew that she was fraternizing with 

enlisted personnel.” Hensler, 44 M.J. at 187. He further 

instructed the members that “alcoholism and chemical dependency 

is recognized by the medical profession as a disease involving a 

compulsion towards intoxication.” Id. (internal quotation marks 

omitted). 

Following conviction by a general court-martial, Hensler 

appealed on the basis that this instruction was not sufficient 

for a defense of involuntary intoxication. On review, this 

Court affirmed, noting three essential factors. First, the 

instructions were adequately, although not perfectly, tailored 

to the evidence. Second, the military judge instructed the 

members that alcoholism and chemical dependency are a disease. 

And finally, the government did not dispute the appellant’s 

contention that the combination of psychological problems, job-
United States v. MacDonald, No. 14-0001/AR 

30 

related stress, over-medication, loss of liver function, and 

alcohol consumption could cause a lack of mental responsibility. 

Id. at 188. 

In the present action, like Hensler, the Government did not 

dispute the possibility of involuntary intoxication by Chantix 

as it even offered its own set of instructions on involuntary 

intoxication. However, unlike Hensler, the military judge’s 

instructions were not sufficiently tailored nor did the military 

judge refer to “involuntary intoxication” or the potential 

effects of Chantix in the given instructions. 

Further, this Court stated in Hensler that “[i]nvoluntary 

intoxication is treated like legal insanity. It is defined in 

terms of lack of mental responsibility.” Id. at 188 (citing 

F.D.L., 836 F.2d at 1116-17 (“[T]he mental state of an 

involuntarily intoxicated defendant is measured by the test of 

legal insanity.”)). It is based on this language that the 

Government argues that the test of involuntary intoxication is 

essentially the same as mental responsibility. If this is an 

accurate statement of law, then clearly the instructions for 

involuntary intoxication for mental responsibility would be 

substantially the same and any error in failing to give an 

involuntary intoxication instruction would be harmless. 

The underlying authority on which Hensler is based, namely 

United States v. F.D.L., however, is more nuanced than the 
United States v. MacDonald, No. 14-0001/AR 

31 

segment quoted in Hensler suggests. 836 F.2d at 1117 (citing 73 

A.L.R.3d 203–04 (1976)). In that case, the Eighth Circuit held 

that involuntary intoxication “cases all require a finding that 

there has been involuntary ingestion of an intoxicant, usually 

through trickery, and that the defendant was unable to 

appreciate the nature and quality or wrongfulness of his acts.” 

F.D.L., 836 F.2d at 1117. Thus, F.D.L. articulates a two-part 

test for involuntary intoxication. First, that there was an 

involuntary ingestion of an intoxicant. And second, due to this 

ingestion, defendant was unable to appreciate the nature and 

quality or wrongfulness of his acts. This is substantially 

distinct from a mental responsibility test requiring 

demonstration of a mental disease or defect and the inability to 

appreciate the nature and quality or wrongfulness of conduct. 

To conflate these two defenses is not logical. If the test for 

involuntary intoxication required a showing of a mental disease 

or defect in addition to the two-part F.D.L. test, this would 

essentially be a mental responsibility defense and there would 

be no reason to utilize an involuntary intoxication defense. 

Based on the foregoing, we conclude there was not sufficient 

overlap between an instruction of involuntary intoxication and 

the given instruction of mental responsibility. 

On the first part of the test, neither party disputes that 

Appellant ingested a medically prescribed drug. We previously 
United States v. MacDonald, No. 14-0001/AR 

32 

held that intoxication is involuntary when an accused is unaware 

of the effect of a drug or substance on him. See, e.g., 

Hensler, 44 M.J. at 188 (concluding that “the defense was not 

raised as to the remaining five episodes because appellant was 

on notice that she reacted inappropriately to consumption of 

alcohol”). Here, the Government argues that MacDonald’s 

intoxication was not “involuntary” because he should have been 

aware of the effects of Chantix.4 However, no compelling 

evidence was presented that Appellant was on notice at the time 

of the incident that Chantix could cause serious 

neuropsychiatric symptoms -- the Black Box warning was not 

published until a year after PVT Bulmer’s death -- or that he 

might suffer unanticipated side effects from Chantix. 

With respect to the second part of the test, Appellant’s 

expert witness, Dr. Glenmullen, testified that to be “under the 

influence of a drug” meant that “a drug is affecting you . . . . 

[y]ou can, in some instances, be under the influences of a drug 

in ways that alters your behavior beyond your control.” 

(Emphasis added.) Moreover, Appellant’s expert witnesses 

diagnosed Appellant as suffering from preexisting mental 

conditions and believed Appellant suffered a short-lived, 

psychotic episode at the time of the stabbing which rendered him 

 

4

 The defense also requested an instruction on “evidence negating 

[a] voluntary act.” The military judge declined to give such an 

instruction and the issue was not appealed to this Court. 
United States v. MacDonald, No. 14-0001/AR 

33 

unable to appreciate the wrongfulness of his conduct. For 

example, defense expert Dr. Pancholi testified that at the time 

of PVT Bulmer’s stabbing, Appellant was psychotic. She further 

explained, “[b]asically psychosis is when an individual has a 

break in their perception of realities. So they lose contact 

with reality and so the onset of psychosis is gradual.” She 

also noted that “it’s not an on/off switch,” but rather a 

“progression where you’re slowly losing contact with reality and 

then when you’re coming out of a psychotic episode it’s a 

similar progression to where you can return back to having 

contact with reality over a period of time.” Similarly, Dr. 

Glenmullen concluded that Appellant was psychotic at the time of 

PVT Bulmer’s stabbing and that psychiatric conditions or drugs 

can cause psychosis. He noted that Appellant’s psychosis was a 

combination of “underlying schizoid personality disorder and 

psychotic disorder[, and] auditory hallucinations,” such that he 

was the “last person in the world you’d want to give Chantix to 

. . . the affect of the Chantix is the combination.” Dr. 

Glenmullen further testified that Appellant was unable to form 

the conscious intent to kill “because of the psychosis,” and 

that Appellant was suffering from a severe mental disease or 

defect at the time of the incident which was a “Chantix induced 

psychosis.” In addition, several witnesses testified to 

Appellant’s disposition during the commission of the crime, 
United States v. MacDonald, No. 14-0001/AR 

34 

including one who stated Appellant was “[a]cting completely 

crazy like he was possessed or something.” 

 Given that a defense of involuntary intoxication is 

substantially different from a defense of mental responsibility, 

because it includes a distinct threshold prong, we are unable to 

conclude it was harmless beyond a reasonable doubt not to 

instruct the members on this separate defense. Several experts 

provided “some evidence” that Chantix affected Appellant’s 

ability to appreciate the nature and quality or wrongfulness of 

his acts. There was also “some evidence” from Pfizer and the 

FDA, including the rapidly escalating warnings that culminated 

in a Black Box warning, that Chantix could have dramatic adverse 

effects on some patients. 

Moreover, we cannot and do not know whether the members may 

have determined that Appellant did not suffer from a serious 

mental disease or defect at the time of the murder and declined 

to consider the second prong of the mental responsibility 

defense. Further, if involuntary intoxication was not a 

complete defense it could have been a partial defense by 

negating an element in specific intent or premeditation. As 

such, the members were not told that involuntary intoxication 

itself or in combination with Appellant’s other conditions could 

impact his ability to appreciate the nature and quality of 

wrongfulness of his act. As a result, we are left with 
United States v. MacDonald, No. 14-0001/AR 

35 

reasonable doubt as to whether the absence of an instruction 

contributed to the verdict. 

The Government argued that the evidence of Appellant’s 

ability to form the necessary intent was so overwhelming that 

Appellant could not be prejudiced by any error. In doing so, 

the Government cites Appellant’s actions prior to and 

immediately following the murder of PVT Bulmer as evidencing a 

state of mind that is rational and reflective of a person 

cognizant of the nature and quality of his actions. For 

example, Appellant telephoned his girlfriend the evening before 

the murder and asked whether she would “still love me if I 

killed someone.” Appellant also acknowledged the “idea of 

violently killing someone, wasnt [sic] always, wasnt [sic] much 

at all, only a little, however, I was more willing ‘to do’ 

whatever I thought about doing because I was so streched [sic] 

thin.” The Government also argues that Appellant acted in a 

rational manner when he armed himself with a double-edge knife 

en route to the laundry room and had the “presence of mind to 

stalk a sleeping victim inside a barracks where he would not be 

recognized and when no witnesses were present.” Moreover, after 

the attack, Appellant fled the scene, showered, and attempted to 

escape from the base. 

There are two reasons why this evidence is not so 

overwhelming as to render the instruction harmless beyond a 
United States v. MacDonald, No. 14-0001/AR 

36 

reasonable doubt. First, although the evidence that the 

Government cites could be viewed as compelling evidence that 

Appellant was mentally responsible for his actions, it does not 

account for the defense expert testimony that the Chantix may 

have affected Appellant’s mental state and capacity at the time 

of the incident such that he was “under the influence” of 

Chantix. In a related manner, some if not all of the evidence 

that the Government cites could support an involuntary 

intoxication defense as well as refute it. For example, 

Appellant’s statements to his girlfriend could manifest 

premeditated intent, or they could manifest the sort of 

uncontrolled “homicidal ideation” Appellant argues Chantix may 

induce. That leads to the second reason we are not ultimately 

persuaded that the evidence was sufficiently overwhelming on the 

question of intent to negate any error. Where the evidence can 

support multiple arguments, the accused is entitled to have the 

trier of fact, in this case the members, and not an appellate 

court, hear and test the credibility of the evidence based on 

proper instructions. 

In sum, the instructions for involuntary intoxication were 

not substantially the same as those given for mental 

responsibility, and the Government did not meet its burden to 

demonstrate that failure to properly instruct was harmless 

beyond a reasonable doubt. 
United States v. MacDonald, No. 14-0001/AR 

37 

CONCLUSION 

 We conclude that the military judge erred in failing to 

issue a separate instruction on involuntary intoxication and 

that contrary to the CCA’s conclusion the error was not harmless 

beyond a reasonable doubt. 

Accordingly, the decision of the United States Army Court 

of Criminal Appeals is reversed. The findings and sentence are 

set aside. The record of trial is returned to the Judge 

Advocate General. A rehearing is authorized.