UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201500388

_________________________

UNITED STATES OF AMERICA

Appellee

v.

JOSEPH W. CHAMBLIN

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Colonel G.W. Riggs, USMC.

Convening Authority: Commanding General, Marine Corps Combat 

Development Command, Quantico, VA.

For Appellant: Lieutenant R. Andrew Austria, JAGC, USN.

For Appellee: Major Cory Carver, USMC; Lieutenant Megan 

Marinos, JAGC, USN.

_________________________

Decided 8 November 2017

_________________________

Before HUTCHISON, FULTON, and SAYEGH, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

FULTON, Judge:

A military judge, sitting as a special court-martial, convicted the 

appellant, consistent with his pleas, of one specification of willful dereliction 

of duty, two specifications of violating a lawful general order, and one 

specification of wrongfully urinating on deceased enemy combatants in 

violation of Articles 92 and 134, Uniform Code of Military Justice (UCMJ).

1

 

1 10 U.S.C. §§ 892 and 934 (2008).
United States v. Chamblin, No. 201500388

2

The military judge sentenced the appellant to 30 days’ confinement, 60 days 

of restriction, reduction to pay grade E-3, forfeiture of $500.00 pay per month 

for six months, and a $2000.00 fine. The convening authority (CA) approved 

only so much of the sentence as provided for 30 days’ confinement, forfeiture 

of $500.00 pay per month for six months, and reduction to pay grade E-5. In 

accordance with a pretrial agreement (PTA), the CA then suspended all 

confinement and adjudged forfeitures of pay in excess of $500.00 pay per 

month for one month.

We have jurisdiction because on 4 May 2016 the Judge Advocate General 

of the Navy sent this case to us under Article 69(d), UCMJ.2 Having received 

the case from the Judge Advocate General, we review it under Article 66, 

UCMJ.3 Our review is limited, however, in that we may take action only with 

respect to matters of law.4

The appellant raises two assignments of error. First, he argues that that 

the government’s failure to disclose evidence of unlawful command influence 

(UCI) violated his right to discover exculpatory evidence under Brady v. 

Maryland.

5 Second, he argues that the Commandant of the Marine Corps 

(CMC) and his subordinates exerted UCI over his court-martial. Because we 

resolve this case on grounds of apparent UCI, we do not reach the first 

assigned error.

I. BACKGROUND

A. Desecration of deceased enemy combatants

In July 2011, while conducting combat operations in Afghanistan, the 

appellant and six other Marines engaged the enemy, killing three insurgents. 

After recovering the bodies, the Marines posed for photographs with the 

deceased enemy combatants and urinated on them. The photographs of the 

Marines posing with the bodies were posted online and a video of them 

urinating on the bodies surfaced on YouTube in January 2012. Senior 

Department of Defense officials, including the Secretary of Defense and the 

CMC, made public statements condemning these actions.

B. Evidence of UCI between the CMC and the first consolidated 

disposition authority (CDA)

On 13 January 2012, the CMC, General (Gen) James Amos, appointed 

Lieutenant General (LtGen) Thomas Waldhauser, USMC, as the CDA for the 

 

2 10 U.S.C. § 869(d) (2012).

3 10 U.S.C. § 866 (2012).

4 10 U.S.C. § 869(e) (2012).

5 373 U.S. 83 (1963).
United States v. Chamblin, No. 201500388

3

desecration cases. In this role, LtGen Waldhauser was to initiate 

investigations into the desecration and other acts of indiscipline and take 

appropriate administrative or disciplinary actions in all of the cases. The 

appointment letter stated that the appropriate disposition of any allegations 

was within his “sole and unfettered discretion.”6 In order to determine

appropriate punishments for the Marines involved, LtGen Waldhauser and 

his team researched how cases involving similar behavior had been handled 

in the past. While those cases typically resulted in nonjudicial punishment 

(NJP) or letters of reprimand, LtGen Waldhauser believed that these cases 

were “more egregious and thus may have warranted disposition at a higher 

forum.”7

On 31 January 2012, LtGen Waldhauser updated the CMC on the 

desecration cases, stating that he had “ruled out referring any of the Marines 

to trial by General Court-Martial.”8 LtGen Waldhauser met privately with 

the CMC in February 2012 during a Middle East trip. According to LtGen 

Waldhauser’s affidavit, during the meeting the CMC stated that the Marines 

involved in the desecration cases needed to be “crushed” and discharged from 

the Marine Corps.9 LtGen Waldhauser explained that he was considering 

referring the cases to forums “in the range of NJP or Summary CourtsMartial for the Sergeants and Special Courts-Martial for the Staff 

Sergeants.”10 According to LtGen Waldhauser’s declaration the conversation 

continued as follows:

The CMC asked me specifically something to the effect of why 

not or will you give all of them General Court-Martials? I 

responded, “No, I’m not going to do that,” . . . stating that I did 

not believe any of the cases warranted General Court-Martial. 

The CMC told me he could change the Convening Authority . . . 

and I responded that would be his prerogative.11

After this meeting, the CMC decided to designate a new CDA. In a letter 

withdrawing LtGen Waldhauser’s CDA designation, the CMC wrote:

I believe some of my comments during our recent conversation 

could be perceived as possibly interfering with your 

 

6 Appellant’s Motion to Attach of 8 Nov 16, Encl. 2 at 1.

7 Id., Encl. 5 at 2.

8 Id.

9 Id. at 2-3.

10 Id. at 3.

11 Id.
United States v. Chamblin, No. 201500388

4

independent and unfettered discretion to take action in those 

cases. To protect the institutional integrity of the military 

justice process, and to avoid any potential issues, I withdraw 

your CDA designation.12

Two days later, the CMC contacted LtGen Waldhauser again and “admitted 

that he had crossed the line and that replacing [him] as CDA was how he was 

going to fix that.”13

In place of LtGen Waldhauser, the CMC appointed LtGen Richard Mills,

Commanding General, Marine Corps Combat Development Command 

(MCCDC). LtGen Mills was assisted by his staff judge advocate (SJA), 

Colonel (Col) Jesse Gruter, and the Deputy SJA, Major (Maj) James Weirick. 

Shortly before LtGen Mills’s appointment, the deputy SJA to the CMC, Col 

Joseph Bowe, informed Col Gruter of the pending appointment. He told Col 

Gruter that he “need not be concerned” with why LtGen Mills was being 

appointed CDA,

14 and specifically directed Col Gruter not to speak to LtGen

Waldhauser or his SJA about the case.

C. Other instances of alleged UCI following appointment of new CDA

The appellant alleges that even after LtGen Mills was designated as the 

new CDA, the CMC’s office continued to improperly influence the handling of 

the appellant’s case. The appellant relies on affidavits from Col Gruter and 

Maj Weirick to support this contention. These affidavits are not disputed by 

the government, and we accept them as truthful. They detail the involvement 

of senior civilian and uniformed attorneys in the appellant’s case even after 

the CMC appointed LtGen Mills as the new CDA.

1. Involvement of Counsel to the CMC and improper classification of 

evidence

Even after LtGen Mills assumed the case, a lawyer associated with the 

CMC, Mr. Robert Hogue, remained involved. In his affidavit, Col Gruter 

states that Mr. Hogue, a civilian attorney in the Navy Office of the General 

Counsel who serves as the senior legal advisor to the CMC, told Col Gruter 

and two other senior judge advocates that “he was involved in all the things 

he was hired to do and all those things he was directed to do by the CMC.”15

Mr. Hogue stated that his involvement in the desecration cases “fell in the 

 

12 Id., Encl. 4.

13 Id., Encl. 5 at 4.

14 Id., Encl. 6 at 1.

15 Id. at 3.
United States v. Chamblin, No. 201500388

5

latter category, and that everything dealing with the [desecration] cases went 

through him.”16

On 29 February 2012, Mr. Hogue sent an action memorandum to LtGen 

Richard Tryon, Deputy Commandant, Headquarters Marine Corps Plans, 

Policies, and Operations, requesting that he classify photographs and videos 

associated with this case as Secret. Col Gruter and Maj Weirick took the 

position that the classification of this evidence was not supported by the 

applicable classification guidelines—a position shared by security managers 

both at MCCDC and Headquarters Marine Corps as well as LtGen Mills. Col 

Gruter brought the matter to the attention of the Deputy SJA to the CMC, 

Col Bowe, but LtGen Tryon classified the evidence as Secret anyway. Col 

Bowe told Col Gruter that the matter was decided and that the CDA needed 

to “make it happen.”17 The government concedes that “standard procedures 

were not followed in coming to this classification decision.”

18

2. Attempted replacement of the CDA’s SJA

In his affidavit, Col Gruter asserts that the SJA to the CMC, Major 

General (MajGen) Vaughn Ary, sought to replace him shortly after he 

complained to Col Bowe about the improper classification of evidence over the 

CDA’s objection:

Shortly after making our concerns regarding the classification 

issue known to both Judge Advocate Division and the Office of 

General Counsel, Major General Vaughn Ary, the Staff Judge 

Advocate of the Marine Corps, attempted to replace me as SJA 

to MCCDC. Major General Ary called and informed me that he 

wanted to replace me because he needed somebody more senior 

who could talk “inside the Beltway” about the [desecration] 

cases; that he wanted a more connected SJA . . . . I informed 

Lieutenant General Mills of Major General Ary’s intentions. 

Lieutenant General Mills was unhappy with this turn of 

events. He supported the work I had done to that point 

generally and specifically on the [desecration] cases. I believe it 

was his support that deterred Major General Ary from 

replacing me.19

 

16 Id.

17 Id. at 2.

18 Government’s Corrected Brief of 14 Apr 2017 at 7 (citation omitted).

19 Appellant’s Motion to Attach, Encl. 6 at 2.
United States v. Chamblin, No. 201500388

6

3. The CMC’s Heritage Brief

While the appellant’s case was pending, the CMC and the Sergeant Major 

of the Marine Corps presented a mandatory, all-officer brief known as the 

“Heritage Brief” at Quantico, Virginia. Although the Sergeant Major and 

CMC gave different briefs, both featured the appellant. The brief first came 

to the attention of Col Gruter when a civilian defense counsel representing 

the appellant forwarded the Sergeant Major’s brief to him. The brief was 

entitled, What Does America Think of Her Marines Today? On the first and 

sixth slides of the Sergeant Major’s brief was a still photo of the implicated 

Marines urinating on the deceased insurgents. Both briefs included at least 

one such picture. 

Col Gruter expressed concern to judge advocates at Judge Advocate 

Division (JAD), a headquarters unit that supports the SJA to the CMC, and 

to Mr. Hogue that the brief might contaminate the members pool and that it 

represented UCI. Maj Weirick obtained a copy of the CMC’s version of the 

brief, which Col Gruter reviewed. Col Gruter advised LtGen Mills not to 

attend the Heritage Brief, and LtGen Mills followed the recommendation. In 

his affidavit, Col Gruter states that the brief caused him concern because 

“the brief given by the Commandant, regardless of whatever comments 

followed, displayed what can fairly be categorized as evidence (the still photo 

of the Marines urinating on the deceased) that would be used in any courtmartial . . . .”20

 

4. The Executive Off-Site and “Update and Recommendations” 

memorandum

In early May 2012, the CMC met with LtGen John Paxton, the 

Commanding General of II Marine Expeditionary Force, LtGen Mills, and 

other senior Marine Corps leaders at an “executive off-site” meeting (EOS). 

According to Col Gruter, LtGen Mills was asked to provide names of the 

individuals against whom he intended to take legal action. After LtGen Mills 

provided these names, he left the meeting and did not participate in 

subsequent discussions with the group of general officers.21

Later that month, LtGen Paxton drafted a memorandum for the CMC 

containing updates and recommendations relating to Marines suspected of 

misconduct in the desecration cases. In the memo, LtGen Paxton informed 

the CMC that “[r]ecommendations are based upon our post[-]EOS discussions 

. . . .”22 

 

20 Id. at 3-4.

21 Id. at 5.

22 Id., Encl. 22 at 1.
United States v. Chamblin, No. 201500388

7

LtGen Paxton sent the memo to the CDA’s office for review. When he saw 

the memo, Col Gruter told the MCCDC Chief of Staff that the memo should 

not be sent to the CMC:

I emphatically explained that it was not II MEF’s responsibility 

to provide any updates regarding the [desecration] 

investigation, and that to do so was infringing on CG, 

MCCDC’s role as the CDA. I further explained that if there 

were to be any updates to anyone, HQMC, CMC, JAD, or any 

external agency or even the press, it was Lieutenant General 

Mills’ responsibility, not II MEF. 23

The Chief of Staff “indicated that he understood,”24 and said he would

contact the II MEF chief of staff and explain Col Gruter’s concerns. 

Nevertheless, the “update and recommendations” memo was sent to several 

senior leaders, including the CMC and his SJA, without Col Gruter’s 

knowledge.

5. Headquarters influence in PTA negotiations; delayed and denied 

discovery

Around four months later, Col Gruter visited Col Bowe at JAD to update 

him on the desecration cases. The SJA to the CMC, MajGen Ary, saw Col 

Gruter there. Col Gruter described the meeting in his affidavit:

Major General Ary asked me to update him on the status of the 

. . . cases. I reported that it appeared promising that all of the 

Marines were going to enter into pre-trial agreements or lower 

forum agreements. Major General Ary responded that all the 

snipers needed to “waive all waiveable motions”, and that the 

waiver needed to be included in the PTAs. At the time, I was 

already concerned about the appearance of UCI, because of the 

change in the CDA; the classification of the videos (not ordered 

by the CDA) and investigation; the legal hold of the entire 

battalion (also not ordered by the CDA); and CMC’s Heritage 

Brief. I agreed that in light of the appearance of UCI, though 

all the events appeared to be reasonably explainable, it would 

be good practice to have the accused waive this motion 

specifically. After confirming this was the best practice, Major 

General Ary reiterated that the accused were to “waive all 

motions.

 

23 Id., Encl. 6 at 4.

24 Id.
United States v. Chamblin, No. 201500388

8

I was very concerned about the manner in which major General 

Ary pressed the need to include a motions waiver clause to the 

point of repeating it after I had acknowledged the “best 

practice.”25

Col Gruter was not yet aware of the circumstances surrounding LtGen

Waldhauser’s relief as CDA, nor was he aware that LtGen Paxton had sent 

the “updates and recommendations” email to the CMC over his objection.

On 18 October 2012, the government certified that it had completed its 

discovery obligations to the appellant. Six days later, Col Gruter received an 

email that, at the bottom of a chain of emails, contained a copy of the “update 

and recommendations” memo. The email chain made it clear that the memo

concerning the desecration cases had in fact been sent to the CMC and other 

senior Marine Corps leaders. In his email to the CMC to which the memo was 

attached, LtGen Paxton told the CMC, “Your guidance after the EOS was 

clear and it was communicated and was being executed.”26 Col Gruter 

“immediately [knew] the email alone presented significant unlawful 

command influence issues and would need to be produced in discovery to the 

various accused.”27 Col Gruter believed that “the phraseology of the email 

made it appear as if the CMC had given particular direction or guidance” in 

the desecration cases and that the general officers who participated in its 

creation “had reached a collective agreement in the ‘execution of . . . 

justice.’”

28

We have examined the memorandum ourselves. While it is certainly 

evidence of headquarters-level interest in these cases, nothing in the memo 

indicates that responsibility for making decisions about courts-martial lay 

with anyone other than LtGen Mills. Most of the memorandum focuses on the 

disposition of Marines whose cases were not destined for court-martial. In 

short, we do not find the “updates and recommendations” memo itself to be 

evidence of UCI. Nevertheless, it is not surprising that in the context of this 

case Col Gruter thought that this information should come from the CDA.

Upon learning that the memo had been sent without his knowledge, and 

based on his earlier conversation with the SJA to the CMC in which MajGen 

Ary emphasized that the accused Marines were to “waive all motions,” Col 

Gruter decided that the memo had to be turned over to defense counsel. He 

forwarded the memo to the trial counsel and, after discussing the matter with 

 

25 Id. at 6.

26 Id., Encl. 22 at 2.

27 Id., Encl 6 at 4.

28 Id. (alteration in the original).
United States v. Chamblin, No. 201500388

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trial counsel, decided to secure PTAs in the cases first, release the memo

after PTAs had been accepted, and then secure waivers for the anticipated 

UCI motions. Col Gruter did not believe that the accused Marines could 

appropriately waive motions without knowing about the “update and 

recommendations” memo.

On 15 November 2012, the appellant and the government entered into a 

PTA. On 28 November 2012, the government provided the appellant with the 

“update and recommendations” memo. That same day, trial defense counsel 

filed a discovery request. The appellant asked for, among other things, “Any 

talking points, notes, outlines, guidance, or written communications 

(including email) regarding the intent of the Commandant of the Marine 

Corps and the disposition of the Accused’s and related cases.”29

The government replied to this request by claiming that it had 

“reasonably provided all known evidence” except for certain classified 

matters.30 In fact, the government had not disclosed any of the CMC’s 

statements about the desecration cases or his letter to LtGen Waldhauser 

explaining his relief. 

The Deputy SJA for the CDA, Maj Weirick, recounts in his affidavit the 

steps he took to obtain discovery related to UCI in this case:

[T]his discovery was requested by the defense counsel for SSgt 

Chamblin . . . . And, there was clearly a duty on my part to look 

beyond my own files for evidence . . . . 

From the attached emails . . . it is clear that I had made every 

effort, beginning in November 2012, to request documents of 

this type to be produced in discovery. I have read receipts for 

all of these emails. I tried to include every lawyer, or their 

action officer, at HQMC . . . who would have had access to 

these documents. None of these email requests were ever 

answered.

One of the most troubling aspects of this matter is that a 

number of accused pleaded guilty without access to this 

discovery. . . . Further, the CMC’s letter of 10 February 2012 

which removed LtGen Waldhauser as the CDA, was never 

provided to the accused in the [desecration] cases despite my 

repeated requests . . . for UCI related materials.31

 

29 Id., Encl. 24 at 1.

30 Id., Encl. 25 at 1.

31 Id., Encl. 7 at 2.
United States v. Chamblin, No. 201500388

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The appellant did plead guilty and was sentenced on 19 December 2012.

The convening authority acted on 21 February 2013. 

6. Col Gruter recuses himself

Even after the appellant pleaded guilty, Col Gruter continued to be 

frustrated with what he saw as headquarters-level interference in the 

remaining desecration cases:

During the last week of April, I learned that [a 

noncommissioned officer facing possible discipline] was allowed 

to retire from the Marine Corps. I was upset with this action 

because of the initial work that was done to identify all the 

Marines the CDA intended to take legal action against . . . to 

ensure they were not separated before action could be taken. I 

called Lieutenant Colonel Brostek [a judge advocate attached 

to JAD] on 2 May to voice my displeasure that [the NCO] had 

been retired; I informed him that I viewed this as yet another 

example of HQMC creating problems in the [desecration] cases. 

I also informed him that, if there was one more incident 

smelling of UCI in these cases, I would recuse myself and 

recommend to Lieutenant General Mills that he recuse himself. 

I also stated that if there were evidence of actual UCI, I 

recommended that the entirety of JAD recuse themselves from 

this matter.32

Col Gruter did not have to wait long for a headquarters action that—at 

least in his mind—evidenced actual UCI:

Shortly thereafter, on 10 May 2013, a professional 

responsibility complaint was filed against me at the HQMC 

level regarding a matter that began over two years ago. I feel to 

some degree the timing of this was in retaliation for my 

statement that I would not tolerate additional interference 

from HQMC on the handling of the [desecration] cases and was 

on the verge of self-recusal.

As a result of the professional responsibility complaint, I felt I 

had no choice but to recuse myself from the [desecration] cases, 

though LtGen Mills protested my recusal and stated his 

dissatisfaction with the professional responsibility complaint. I 

felt the professional responsibility complaint compromised my 

position as an SJA beyond repair and when taken together 

with the initial attempt to have me removed . . . as SJA as well 

 

32 Id., Encl. 6 at 7.
United States v. Chamblin, No. 201500388

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as the continual unilateral action taken by HQMC in the 

[desecration] cases only contributed to an already adversarial 

relationship between my office and JAD.

33

II. DISCUSSION

The appellant alleges that his case was affected by UCI and that we 

should set aside the findings and sentence and dismiss the charges and 

specifications with prejudice.

A. Law applicable to UCI 

It has long been a canon of military jurisprudence that UCI is the mortal 

enemy of military justice.34 The prohibition against UCI is codified in Article 

37, UCMJ, which states in part, “[n]o person subject to this chapter may 

attempt to coerce or . . . influence the action of a court-martial or any other 

military tribunal or any member thereof, in reaching the findings or sentence 

in any case, or the action of any convening . . . authority with respect to his 

judicial acts.” UCI can be actual or apparent, and we review cases for UCI de 

novo.

35 When raising UCI for the first time on appeal, the appellant must 

show something more than an appearance of evil to justify action by an 

appellate court in a particular case. Proof of UCI “in the air” will not do.”36

We will focus our analysis on apparent UCI. Unlike actual UCI, which 

requires prejudice to the accused, “no such showing is required for a 

meritorious claim of an appearance of unlawful command influence. Rather, 

the prejudice involved . . . is the damage to the public’s perception of the 

fairness of the military justice system as a whole[.]”

37 In United States v. 

Boyce, the Court of Appeals for the Armed Forces (CAAF) used a two-pronged 

test for apparent UCI.38 To prevail, the appellant must show facts, which if 

true, would constitute UCI. Second, he must show that the UCI placed an 

intolerable strain on the public’s perception of the military justice system 

because an objective, disinterested observer, fully informed of all the facts 

and circumstances, would harbor a significant doubt about the fairness of the 

proceeding.39

 

33 Id.

34 United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).

35 United States v. Harvey, 64 M.J. 13, 19 (C.A.A.F. 2006).

36 United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) (internal quotation 

marks and footnote omitted).

37 United States v. Boyce, 76 M.J. 242, 248 (C.A.A.F. 2017).

38 Id.

39 Id. at 248-49.
United States v. Chamblin, No. 201500388

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The Boyce court set forth an analytical framework for courts to use in 

applying this standard. First, an appellant must show some evidence that 

UCI occurred.40 This is a low burden, but the showing “must consist of more 

than ‘mere speculation.’”

41

Once an appellant presents some evidence of UCI, the burden shifts to the 

government to prove beyond a reasonable doubt that “either the predicate 

facts proffered by the appellant do not exist, or the facts as presented do not 

constitute unlawful command influence.”42 If the government meets this 

burden, no further analysis is necessary.43 

If the government does not meet its burden of rebutting the allegation at 

this initial stage, then the government may next seek to prove beyond a 

reasonable doubt that the UCI did not place an intolerable strain upon the 

public’s perception of the military justice system, and that an objective 

disinterested observer, fully informed of all the facts and circumstances, 

would not harbor a significant doubt about the fairness of the proceeding.44 A 

determination that the appellant was not personally prejudiced, or that the 

prejudice caused by the UCI was later cured, is a significant factor to which 

we must give considerable weight when deciding whether the UCI placed an 

“intolerable strain” on the public’s perception of the military justice system. 

But such a determination is not dispositive. Rather, we will consider the 

totality of the evidence in determining whether there is the appearance of 

UCI.

45

B. Application of Boyce

As we analyze this case under Boyce, we note that most of the facts 

relating to UCI in this case were not developed in the record of trial. Rather, 

they are taken from matters we have attached to the record on the 

appellant’s motion. Included in these matters are affidavits from the SJA, 

Deputy SJA, and the first CDA in this case. The government does not contest 

the substance of these affidavits, and we therefore accept them for purposes 

of resolving this appeal. 

 

40 Id. at 249.

41 Id. (quoting United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013). 

42 Id. (citing Salyer, 72 M.J. at 423).

43 Id.

44 Id. at 249-50.

45 Id. at 248, n.5.
United States v. Chamblin, No. 201500388

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1. The appellant’s burden of production

Applying the first prong of the Boyce analysis, we find that the appellant 

has presented evidence of UCI. LtGen Waldhauser’s affidavit states that the 

CMC told him that he wanted the Marines involved in the desecration cases 

“crushed,” and asked why LtGen Waldhauser would not send all the cases to 

general court-martial. This is clearly some evidence of UCI.

We also find that the appellant has met his relatively low burden of 

production in other ways. For example, we find that the MajGen Ary’s

attempt to replace Col Gruter with someone who could talk “inside the 

Beltway” after Col Gruter protested the irregular classification of evidence 

constitutes some evidence of UCI. Although he did not know of the CMC’s 

direct involvement in this case at the time, Col Gruter thought that the effort 

to improperly classify evidence impinged on the CDA and put the case at risk. 

We have previously found that Gen Amos’s Heritage Brief constituted 

some evidence of UCI, even when an appellant’s offense was not depicted in 

the brief itself.46 In this case, the brief contained at least one picture of the 

appellant urinating on a dead insurgent—an offense that was the subject of a 

pending court-martial—and asked, “What Does America Think of Her 

Marines Today?” We find that this brief also meets the relatively low burden 

of production for UCI.

Completing the first part of the two-part analysis required by Boyce, we 

note that the government has not demonstrated beyond a reasonable doubt 

that the predicate facts proffered by the appellant do not exist or that they do 

not constitute UCI. In fact, the government presented no evidence to 

challenge the credibility of, rebut, or otherwise explain any fact asserted in 

the affidavits of the first CDA, the SJA, or the Deputy SJA, which we have 

found constitute some evidence of UCI. The government does argue that the 

prejudice associated with this evidence has been ameliorated. We take up 

this claim in the next step of the analysis.

2. The government’s burden 

Moving to the second step in the Boyce test, we find that the government 

has not proven beyond a reasonable doubt that the UCI did not place an 

intolerable strain upon the public’s perception of the military justice system. 

Nor did the government prove beyond a reasonable doubt that an objective 

 

46 See e.g., United States v. Howell, No. 201200264, 2014 CCA LEXIS 321, at *2 

(N-M. Ct. Crim. App. 22 May 2014) (holding that the appellant raised some evidence 

of an appearance of UCI by presenting evidence of the CMC’s Heritage Brief);

United States v. Jiles, No. 201200062, 2014 CCA LEXIS 151, at *3-6 (N-M. Ct. Crim. 

App. 6 Mar 2014) (military judge’s actions sufficiently ameliorated any taint or 

potential taint from apparent UCI caused by Heritage Brief).
United States v. Chamblin, No. 201500388

14

disinterested observer, fully informed of all the facts and circumstances, 

would not harbor a significant doubt about the fairness of the proceeding.

We will consider the totality of the circumstances, and we begin by 

considering the nature of the initial UCI in this case. The highest-ranking 

officer in the Marine Corps told the CDA that the appellant and his coaccuseds should be “crushed.” This is an unusually flagrant example of UCI. 

We find that UCI this direct, and occurring at this level, is highly corrosive to 

public trust in this proceeding.

Nor was the prejudice of this UCI fully cured. Although there is no 

evidence that the new CDA was aware of the CMC’s conversation with the 

first CDA, LtGen Waldhauser, the UCI—or more properly, its supposed 

remedy—prejudiced the appellant. Maj Weirick’s affidavit provides evidence 

that Marine Corps headquarters-level attorneys withheld evidence that the 

CMC committed UCI from the appellant, the trial counsel, the CDA, and the 

CDA’s SJA. The evidence was withheld in the face of a discovery request that 

was being processed by the CDA’s Deputy SJA. In its brief, the government 

argues that withholding evidence of UCI was “necessary” because to comply 

with the request would have subjected the participants in the trial process to 

the original CMC’s original act of UCI. The government’s effort to justify this 

conduct by claiming that it was a necessary part of the government’s UCI 

remedy demonstrates the inadequacy of the remedy. The appellant had a 

right to discovery and a right to a judicial process free from UCI. An accused 

does not forfeit his right to discovery because the government’s preferred UCI 

remedy requires it.47 Worse, the discovery was denied sub silentio by 

headquarters-level counsel who failed to disclose the evidence when Maj 

Weirick asked for it. This frustrated trial counsel’s ability to fulfill his 

obligations as the representative of the United States under the UCMJ and 

the Rules for Courts-Martial and caused the trial counsel to incorrectly 

represent to the appellant that all the responsive material had been provided.

Col Gruter, who had recused himself from the desecration cases by the 

time he learned of the withheld evidence, assessed how this affected his 

handling of these cases:

Had I been aware that JAD was actively withholding evidence, 

I would have insisted that both offices, JAD and the General 

Counsel Office had a conflict of interest with the Government 

in any matter regarding [the desecration cases] and demanded 

their effective withdraw[al] from any role in the matter.

 

47 Cf. Simmons v. United States, 390 U.S. 377, 394 (1968) (“. . . we find it 

intolerable that one constitutional right should have to be surrendered in order to 

assert another.”).
United States v. Chamblin, No. 201500388

15

I would have advised additional remedial measures had I been 

made aware that Lieutenant General Waldhauser was removed 

as CDA because of his disagreement with the CMC regarding 

his proposed dispositions of the [desecration] cases. I would 

have advised Lieutenant General Mills to proceed in an 

entirely different manner in these cases. I would have required 

disclosure of the material to all accused, and recommended 

that the cases proceed to NJP.

. . . [A]s the facts surrounding the shift in the CDA became 

known, it was clear to me the most relevant of facts had been 

withheld from me and that my ability [to] independently and 

fully advise Lieutenant General Mills was severely and 

systematically interfered with by Judge Advocate Division.48

A member of the public, aware of these facts and this assessment from the 

CDA’s SJA, would lose confidence in the fair processing of this case.

After LtGen Mills was appointed to be the CDA, his SJA and deputy SJA 

were in many respects quite zealous about protecting the case from UCI. 

Boyce’s hypothetical objective observer would see that Col Gruter’s difficulties 

with headquarters-level counsel in these cases sometimes centered on his

efforts to protect the independence of the CDA. It bothered him that the SJA 

to the CMC seemed to insist on a term in the PTA. And after Col Gruter 

protested Mr. Hogue’s direction to improperly classify the evidence in this 

case, the CMC’s SJA sought to remove Col Gruter as the SJA and replace him 

with someone who could talk “inside the Beltway” about these cases.

Ultimately Col Gruter did recuse himself. The record does not contain 

facts about the professional responsibility complaint beyond those contained 

in Col Gruter’s affidavit: that it concerned conduct from two years earlier, 

and that it followed his complaints about interference in another desecration 

case. And since Col Gruter’s recusal came after the appellant’s court-martial, 

it didn’t affect the result. But the few facts we know about the recusal, 

combined with the attempt to remove the SJA, would color how an objective 

observer views the continued involvement of senior attorneys close to the 

CMC in this case.

A member of the public’s confidence in the fairness of the proceedings 

would be eroded by the fact that the CMC made an example of the appellant’s 

conduct in a brief intended for distribution to all officers and senior enlisted 

Marines. A member of the public would find that displaying a picture of the 

appellant committing an offense while the court-martial for that offense was 

 

48 Appellant’s Motion to Attach, Encl. 6 at 7-8.
United States v. Chamblin, No. 201500388

16

pending—and particularly in light of the CMC’s earlier conduct in this case—

evinces a disregard for the independence of those involved in the judicial 

process.

The government argues that any UCI committed by the CMC was cured 

by changing CDAs. Although we agree that there is no evidence that LtGen 

Mills knew the contents of the CMC’s communications with the first CDA, 

LtGen Waldhauser, as we have discussed, we do not agree that the prejudice 

to the appellant was completely cured. We have also considered other

government arguments regarding the alleged UCI in this case. For nearly 

every example of potential UCI in this case, one can counter with a reason to 

overlook it: The appellant received a very favorable PTA; he can hardly claim 

to have been “crushed” as the CMC might have wanted. His PTA did not 

contain a term requiring him to waive all motions as the SJA to the CMC had 

wanted, and such a term would likely have been ineffective anyway. 

Improper classification of the evidence had the potential to make discovery 

more difficult but would not have ultimately prevented the appellant’s 

counsel from reviewing evidence, and some motive other than UCI might 

have motivated the classification decision. Col Gruter advised LtGen Mills to 

avoid the Heritage Brief, and the appellant pleaded guilty to a military judge.

We have considered these arguments in our review of the totality of 

circumstances, and given consideration to the ways the appellant escaped 

personal prejudice. But the burden is on the government to show, beyond a 

reasonable doubt, that the UCI did not place an intolerable strain upon the 

public’s perception of the military justice system and that an objective 

disinterested observer, fully informed of all the facts and circumstances, 

would not harbor a significant doubt about the fairness of the proceeding. We 

think that such an observer would share the SJA’s sense that the CMC and 

lawyers who reported to him “severely and systematically interfered”49 with 

this case and would harbor significant doubt about the fairness of the 

proceeding. Therefore, the government has not met its burden under Boyce.

3. Remedy

The appellant urges us to dismiss this case with prejudice. Dismissal is a 

drastic remedy, and we must consider whether remedies short of dismissal 

are available.50 In considering a remedy, we take our approach from two 

CAAF cases: United States v. Lewis51 and United States v. Salyer.

52 In both 

 

49 Id., Encl. 6 at 8.

50 United States v. Cooper, 35 M.J. 417, 422 (C.M.A. 1992).

51 63 M.J. 405 (C.A.A.F. 2006).

52 72 M.J. 415 (C.A.A.F. 2013).
United States v. Chamblin, No. 201500388

17

Lewis and Salyer, the government achieved the removal of a military judge

through the use of UCI.53 In both cases the CAAF reversed this court and 

found that remedies that permitted retrial before a different military judge 

ratified rather than cured the UCI and did not restore public confidence in 

the system.54 The CAAF considered that the government’s goal in committing 

the UCI was to remove the judge. Since retrial before the original judge was 

no longer possible, any remedy allowing for a second trial before a different 

judge simply would allow the government to benefit from its own misconduct.

In Salyer, the CAAF also considered that the over-two-and-a-half-year delay 

weighed against permitting a retrial.55 Finally, the Salyer court found that 

the government’s actions “strike at the heart” of what it means to have a 

credible military justice system.56 Dismissal with prejudice was therefore the 

appropriate remedy in those cases.

We likewise find that public confidence in military justice requires 

dismissal with prejudice in this case. Nearly six years have passed since 

LtGen Waldhauser was named the CDA. Like the appellant in Salyer, this 

appellant had a right to a timely trial free from UCI. Col Gruter, who would 

have recommended that this case be disposed of nonjudicially had evidence 

not been withheld, has recused himself, and cannot participate further. We 

find lesser remedies inadequate to the harm. Dismissal of the charges and 

specifications with prejudice is necessary in this case to ‘“foster[ ] public 

confidence in the . . . fairness of our system of justice.”’

57

III. CONCLUSION

The findings and sentence are set aside. The charges and specifications 

are dismissed with prejudice. 

Senior Judge HUTCHISON and Judge SAYEGH concur.

 

53 Lewis, 61 M.J. 415-16; Salyer, 72 M.J. at 428.

54 Id.

55 Salyer, 72 M.J. at 428.

56 Id.

57 Boyce, 76 M.J. at 246 (quoting Harvey, 64 M.J. at 17).

 For the Court 

 R.H. TROIDL 

 Clerk of Court