## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant BRIAN W. SCHWISOW United States Army, Appellant

ARMY MISC 20150720

Headquarters, I Co rps and Joint Base Lewis-McChord Jeffery D. Lippert, Military Judge Colonel Randall J. Bagwell, Staff Judge Advocate

For Appellant: Colone l Mark H. Sydenham, JA; Captain Jihan Walker, JA; Captain Carling M. Dunham, JA (on brief).

For Appellee: Li eutenant Colonel Jonath an F. Potter, JA; Ma jor Andres Vazquez, Jr., JA; Captain Matthew L. Ja landoni, JA (on brief); Lieu tenant Colonel Jonathan F. Potter, JA; Major Andres Va zquez, Jr., JA; Captain Matthew L. Jalandoni, JA (Motion for Recons ideration).

22 March 2016

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CAMPANELLA, Judge:

Appellee was charged with one specification of desert ion, four specifications of failure to repair, one specification of assaulting a supe rior officer, one specification of willfully di sobeying a noncommissioned officer, one specification of violating a lawful general order, one specific ation of distributi on of a controlled substance, two specifications of possession with intent to dist ribute a controlled substance, one specification of possessi on of a cont rolled substance, and two 1
specifications of use of a controlled s ubstance in violation of Articles 85, 86, 90, 91, and 112a, Uniform Code of Military Justice [h ereinafter UCMJ], 10 U.S.C. §§ 885, 886, 890, 891, 912a (2012).

1 The military judge dismissed one specification of use of a controlled substance, Specification 5 of Charge VI. The dismissal of this specification is not at issue in this appeal.SCHWISOW — ARMY MISC 20150720

2 On 6 October 2015, a milita ry judge dismissed all ch arges and specifications, with prejudice, based on vi olations of Rule of Cour ts-Martial 707 [hereinafter R.C.M.], and Article 10, UCMJ.

After review pursua nt to Article 62, UCMJ, this court concluded that the military judge abused his discretion in failing to grant the delay and exclude the

time to conduct the second R.C.M. 706 board from the R. C.M. 707 120-day clock. On 18 February 2016, we v acated the military ju dge’s ruling to di smiss all charges and specifications and ordered the record to be returned to the military judge for action not inconsistent with the opinion. United States v. Schwisow , ARMY 20150720, at *9, 11 (Arm y Ct. Crim. App. 18 Feb. 2015) (mem. op.).

On 1 March 2016, ap pellant moved for reconsiderat ion and suggest s this court do so en banc. Appellant as serts in his request that th e court failed to apply the

correct standard of re view. This cour t does not adopt the su ggestion for en banc reconsideration but does grant the mo tion for reconsideration.

Having reconsidered our previous ruling, we affi rm our reversal of the military judge’s ruling to dismiss all char ges and specifications with prejudice and wholly adopt our prev ious decision. We write agai n only to address relevant concerns raised by appellant regarding the application of correct standard of review

in this case.

LAW AND DISCUSSION

Appellant argues this court’ s previous decision in this case confli cts with the holding in United States v. Burris , 21 M.J. 140 (C.A.A.F. 1985) wherein under Article 62, UCMJ, our review is generally limited to matters of law. With respect to factual matters, we must defer to the findings of the trial judge if those findings are ‘fairly supported by th e record’. . . .” United States v. Hatfield , 43 M.J. 662, 664 (N.M. Ct. Crim. App. 1995) (quoting United States v. Burris , 21 M.J. 140, 144 (C.M.A. 1985)) (internal cita tions omitted). While accurate, this court’s analysis does not stop there. This court should not defer to the trial court when the military judge’s determinations are not s upported by the record or clearly in error.

In an appeal un der Article 62 of the military judge’s R.C.M. 707 ruling, we

review for an abus e of discretion. See United States v. Dooley, 61 M.J. 258, 262-63 (C.A.A.F. 2005). In reviewing an interlocutory appeal by the Government, we “may act only with respect to matters of law.” Art. 62(b), UCMJ; see R.C.M. 908(c) (2). This Court, howev er, is only “ bound by the military judge's factual determinations unless they are unsuppor ted by the record or clearly erroneous .” United States v.

Gore , 60 M.J. 178, 185 (C.A.A.F . 2004) (emphasis added). A finding by this Court that a military judge a bused their discretion requires “more than a mere difference of opinion.” United States v. Lloyd , 69 M.J. 95, 99 (C.A.A.F. 2010). Military judgesSCHWISOW — ARMY MISC 20150720

3 abuse their discretion when their findings of fact are (1) clearly erroneous, (2) the court's decision is influenced by an errone ous view of the law, or (3) the military judge's decision on the issue at ha nd is outside the range of choices reasonably arising from the appl icable facts and the law. See Gore , 60 M.J. at 187 (citing United States v. Wallace , 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992); United

States v. Sullivan , 42 M.J. 360, 363 (C.A.A.F. 1995)) (emphasis added).

In the present case, we agai n find the military judge abused his discretion when

he asserted that a sec ond R.C.M. 706 inquiry was not necessary because that finding of fact was clearly errone ous and was based upon an erroneous view of the law. A request for a 706 board should be gran ted if the request is in good faith and not

frivolous. See United States v. Nix , 15 U.S.C.M.A. 578, 582, 36 C.M.R. 76, 80 (1965). Under the facts of this case, a second R.C.M. 706 inquiry requested by defense was necessary and just ified. At the time of th e defense counsel’s second request, the question remained unanswered as to whether appellant suffered from a

severe mental diseas e or defect renderi ng him unable to apprec iate the nature or quality of the wrongfulness of his actions at the time they occurre d. The first R.C.M. 706 inquiry wa s never completed because appe llee was found in competent to stand trial and subsequently he was institutional ized. Once releas ed from Butner FMC (Federal Medical Center), there also was no evidence on the record of a competency determination.

The military judge’s pa tent and unequivocal di spleasure regarding the government “allowing” a se cond R.C.M. 706 board is clear fr om the record. 2 It is also clear to this court that the military judge’s error in conflating the concepts of “competency” and “men tal responsibility” not only had a bear ing on his opinion regarding whether a second R.C.M. 706 should have taken place – but also

influenced the lens th rough which he viewed the length of time it to ok to complete it. Given the following comm ents by the military judge on the matter, this court would be hard-pressed to conclude otherwise:

Why the defense aske d for that other R. C.M. 706 board I don’t know. But even more puz zling to the court is why the government acceded to the defense request for the

R.C.M. 706 board. There was no reason for it. There was a finding based on th e fact that the ac cused was released

from Butner FMC and sent back on 9 January that he was

2 Under the military judge’s reasoning, government counsel would face an illogical choice when presented with a defense requ est for a R.C.M. 706 inquiry. If the government acts favorably on the request, but the military judge later determines the

R.C.M. 706 is unneces sary, the time would not be excluded under R.C.M. 707. Such a result encourages unnecessary litigatio n and disincentivizes the government from fairly considering such a request.SCHWISOW — ARMY MISC 20150720

4 indeed competent to stand tria l. Otherwise, he would not

have been sent back. 3 So, it is undeci pherable to me why the government would accede to a defense request for

another R.C.M. 706 board th at was not ne cessary. The accused was competent based on the fact of his release [sic]. The best practice there, if the government had wanted to proceed with this case was to appoint an Article

32 officer and start the tria l process back up. But by acceding to the defense requ est government, who should

bear the burden of that? Sh ould that be the defense’s

burden or should it be the government’s burden. The government has the ob ligation to move th e case to trial,

not the defense counsel. The defense counsel can’t drag their feet unnecessarily or nefariously delay the trial process. In many instances, delay helps the defense. The best practice for the governmen t and the one that I don’t understand why the government didn’t do and has not been explained to me, is why adequately, is why the government acceded to another R.C.M. 706 review in this

case.

. . .

You acceded to a nonsensical defense request for a R.C.M.

706.

. . .

I am not trying to beat a dead horse here because this is largely rhetorical. Because th ere is no answer to this question from the gov ernment. It happened and I don’t know what you can tell me to change that fact.

Further, we find that the mi litary judge made a clearly erroneous finding of fact when he asserted that the government, not the defense, requested the second R.C.M. 706 inquiry. The go vernment administratively facilita ted the defense request to the convening authority, which plainly asserted defense w ould be respon sible for the delay in conducting th e second R.C.M. 706 i nquiry. We reiterat e it would be an

unfair windfall to the defense to allow appellee to benefit from receiving that which they specifically requested.

3 There was no evidence that Butner FMC found him competent.SCHWISOW — ARMY MISC 20150720

5 CONCLUSION

Upon reconsideration, we ag ain grant the appeal of the United States. The military judge’s ruling to dismiss all char ges and specifications is vacated and the

record will be returned to the military judge for action not inconsiste nt with this opinion.

Senior Judge TOZZI and Ju dge CELTNIEKS concur.

FOR THE COURT:

JOHN P. TAITT Acting Clerk of Court JOHN P. TAITT Acting Clerk of Court FOR THE COURT: