This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________
UNITED STATES Appellee

v.

Vashaun M. BLANKS
, Senior Airman United States Air Force , Appellant

No. 17

- 0404 Crim. App. No. 38891

Argued January 24, 2018

— Decided February 28, 2018

Military Judge: Donald R. Eller Jr.

For Appellant: Major Allen S. Abrams (argued); Brian L.
Mizer , Esq. (on brief) ; Captain Patrick A. Clary.

For Appellee: Lieutenant Colonel G. Matt Osborn (argued); Colonel Katherine E. Oler and Lieutenant Colonel Joseph
J. Kubler (on brief) ; Mary Ellen Payne , Esq

. Judge OHLSON delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges RYAN and SPARKS, and Senior Judge EFFRON, joined.

_______________
Judge OHLSON delivered the opinion of the Court.

Contrary to Appellant’s pleas, a general court

- martial with enlisted representation convicted Appellant of one specification of negligent dereliction of duty in violation of Article 92(3), Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 892(3) (2012)

. 1 Appellant’s adjudged and approved sentence consisted of a bad

- conduct discharge,
confinemen t for thirty days, forfeiture of $1,546 .00 pay per

1 Appellant also was convicted contrary to his pleas of one specification of making a false official statement, one specification of larceny of military property, and one specification of obstruction of justice in violation of Articles 107, 121, and 134, UCMJ,
10 U.S.C. §§ 907, 921, 934 (2012). Pursuant to his pleas, Appellant was convicted of th ree specifications of making a false official statement in violation of Article 107, UCMJ. The court

- martial acquitted Appellant of one Article 107, UCMJ, specification of making a false official statement and one Article 121, UCMJ, spe cification of larcen y of military property.United States v. Blanks , No. 17

- 0404/AF Opinion of the Court

2 month for two months, and a reduction to the lowest enlisted grade

. The United States Air Force Court of Criminal Appeals affirmed the findings and sentence. United States v.
Blanks , No. ACM 38891, 2017 CC A LEXIS 186, at * 41

, 2017 WL 1325170, at *15 (A.F. Ct. Crim. App. Mar. 16, 2017) (unpublished). We granted review of the following
issue:

In light of this Court’s decision in United States v. Haverty , 76 M.J. 199 (C.A.A.F. 2017), did the mil itary judge err wh e n he instructed the members Appellant could be convicted of negligent dereli ction of duty.

United States v. Blanks , 76 M.J. 473 (C.A.A.F. 2017) (order granting review ).

We hold that the military judge did not err when he i nstructed the members that App ellant could be convicted of negligent dereliction of duty. Since the inception of the UCMJ, military law has recognized the offense o f negligent dereliction of duty. S ee United States v. Grow , 3 C.M.A. 77,

86

– 87, 11 C.M.R. 77, 86

– 87 (1953) ; Manual for Courts

Martial, United States para. 171 c (1951 ed.) ( MCM )

. Fu rther, we have continued to repeatedly recognize that negl igence is an appropriate mens rea for certain dereliction o ffenses

. See, e.g.

, United States v. Lawson , 36 M.J. 415, 41 6 (C.M.A. 1993) ; U nited States v. Powell , 32 M.J. 117, 120

– 21 (C.M.A. 1991) ; United States v. Dellarosa , 30 M.J. 255, 259 (C.M.A. 1990) ; United States v. Kelchner , 16 C.M.A. 27, 28

– 29, 36 C.M.R. 183, 184

– 85 (1966)

. Because Appellant has not presented a ny persuasive reasons for this Court to overrule our prior decisions

, there is no basis for us to disturb our precedent. Therefore, we affirm the judgment of the lower

court.

I.

The Government charged Appellant with willful dereli ction of duty for failing to provide adequate financial support to his dependent spouse. Prior to the panel’s deliberations on findings, t he military judge instructed the members on both willful dereliction of duty and the lesser included offense of neglige nt dereliction of duty. The military judge disti nguished the greater offense from the lesser included offenseUnited States v. Blanks , No. 17

- 0404/AF Opinion of the Court

3 by noting that for willful dereliction of duty, the members
had to determine “beyond a reasonable doubt that the a ccused . . . was willfully derel ict in the per formance” of his
duties

, 2 and that for negligent dereliction of duties, the
members had to find “beyond a reasonable doubt that the
accused

. . . was negligent in the performance of those d uties.” 3 (Emphasis added.) The members convicted Appe llant
of the lesser included offense of negligent dereliction of duty.

II.

Appellant challenges the military judge’s negligent der eliction of duty instruction on the basis that negligence is not
an authorized level of mens rea for the Article 92(3), UCMJ, dereliction of duty offense

. Because he did not object to this
aspect of the military judge’s negligent dereliction of duty instruction, we review the instruction for plain error. United States v. Haverty , 76 M.J. 199, 208 (C.A.A.F. 2017).

Under the UCMJ, a servicemember who “is derelict in the performance of his duties[,] shall be punished as a court

martial may direct. ” Article 92(3), UCMJ. Although the statute does not explicitly identify a mens rea for this o ffense, w e have long interpreted Article 92(3 ) , UCMJ, as a uthorizing the military to punish a servicemember for negl igent dereliction of duty. See Lawson

, 36 M.J. at 416 ; Powell

, 32 M.J. at 120 ; Dellarosa , 30 M.J. at 259 ; Kelchner

, 16 C.M.A. at 28

– 29, 36 C.M.R. at 184

– 85 ; Grow , 3 C.M.A. at
86

– 87, 11 C.M.R. at 86

– 87.

In light of this long line of precedent, t he military judge did not err, plain ly or otherwise, by instructing the members

on the negligent dereliction of duty offense

. Appellant acknowledges our prior decisions

, but he requests that we

ove rrule this precedent

. W e decline his invitation to do so.

2 The military judge informed the members: “ ‘Willfully’ means intentionally. It refers to the doing of an act, and purposely, specifically intending the natural and probable consequences of the act.”

3 The military judge defined ne gligently to mean “an act or failure to act by a person under a duty to use due care which demonstrates a lack of care which a reasonably prudent person
would have used under the same or similar circumstances.”United States v. Blanks , No. 17

- 0404/AF Opinion of the Court

4 “[W] hen this court considers a request to overrule a prior decision of the court, we analyze the matter under the do ctrine of stare decisis .” United States v. Quick , 74 M.J. 332, 335 (C.A.A.F. 2015). This doctrine provides that “adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of l egal principles, fosters reliance on judicial decisions, and co ntributes to the actual and pe rceived int egrity of the judicial

process. ” United States v. Sills , 56 M.J. 239, 241 (C.A.A.F. 2002) (per curiam) (internal quotation marks omitted) (quo ting Payne v. Tennessee , 501 U.S. 808, 827 (1991) ). S tare decisis is “‘most compelling’ where courts un dertake statut ory construction” as is the case here. United States v. Rorie

, 58 M.J. 399, 406 (C.A.A.F. 2003) (quoting Hilton v. South Carolina Public Ry. Comm’n , 502 U.S. 197, 205 (1991)). However, this doctrine “is not an inexorable command .”
United Stat es v. Falcon , 65 M.J. 386, 390 (C.A.A.F. 2008) (internal quotation marks omitted) (quoting Payne , 501 U.S. at 828). We consider the following factors in evaluating the application of stare decisis: “whether the prior decision is unworkable or poorly reason ed; any intervening events ; the reasonable expectations of servicemembers ; and the risk of undermining public confidence in the law.” Quick , 7 4 M.J. at

336 (footnote omitted)

. A party must present a “ special just ification ” for us to overrule prior precedent

. Kimble v. Marvel
Ent

. , LLC , 135 S. Ct. 2401, 2409 (2015)

. Examining this case through the prism of stare decisis, Appellant has failed to provide sufficient justification to di sturb this Court’s negligent dereliction of duty precedent

. First, i n Haverty , we explained that “ if a court determines that Congress intended, either expressly or impliedly, to have a particular mens rea requirement apply to a certain criminal statute, then the court must construe that statute accordingly. ” 76 M.J. at 204

. Here, prior decisions of this
Court ha ve determined the congressional intent regarding the mens rea requirement for certain dereliction offenses. Specifically, our Court precedent says that

, “at the very
least

, . . . Congress intended to establish a simple

- negligence standard” for dereliction of duty. Lawson , 36 M.J. at 421. Thus, consistent with Haverty , we have determined that negligence is an appropriate mens rea for dereliction of duty

.United States v. Blanks , No. 17

- 0404/AF Opinion of the Court

5 Second, although Appellant challenges the underpi nnings of our conclusion that Congress intended for a negl igence mens rea to apply to dereliction of duty

, we are unpe rsuaded that his challenge s should cause us to depart from
stare decisis

. Our prior decisions cited the MCM ’s discus sion
of the negligent dereliction of duty offense

. See, e.g.

, Lawson

, 36 M.J. at 419; Grow , 3 C.M.A. at 86

– 87, 11 C.M.R. at 86

– 87 . Although the MCM is not binding, we have noted that
the 1951 MCM “ is itself persuasive in ascertaining what Congress in tended at the time ” of the UCMJ’s enactment. United States v. Clardy , 13 M.J. 3 08, 315 (C.M.A. 1982) . We have further recognized that the MCM “explains [the der eliction of duty] offense as it is generally recognized in mil itary law.” Powell , 32 M.J. at 120

. We therefore conclude that our recognition of a negligent dereliction of duty offense is not unreasonable or clearly wrong

. Third, while free to do so

, Congress has not acted to
amend the dereliction of duty statute even though both the
MCM and this Court ’s case law have recognized since 1951
that negligence is an appropriate mens rea in certain ci rcumstances

. 4 See Watson v. United States , 552 U.S. 74, 82

– 83 (2007) (stating that “long congressional acquiescence has
enhance d even the usual precedential forc e we accord to our interpretations of statutes” (internal quotation marks omi tted) )

. Fo urth, dereliction of duty is a unique ly military offense “specifically intended by Congress to ensure the proper pe rformance of duty within the military service.” Lawson

, 36 M.J. at 422. Servicemembers’ military duties relate to “activities which are reasonably necessary to safeguard and protect the morale, discipline and usefulness of the members of a command and are directly connected w ith the maint enance of good ord er in the services.” United States v. Martin

, 1 C.M.A. 674, 676, 5 C.M.R. 102, 104 (1952). Thus, the der eliction of duty offense promotes good order and discipline in the military. In light of t he military nature of the offense

4 See Grow , 3 C.M.A. at 86

– 87, 11 C.M.R. at 86

– 87 ; MCM p ara. 171 c

.United States v. Blanks , No. 17

- 0404/AF Opinion of the Court

6 and its limited authorized puni shment

, 5 a negligence mens

rea standard is appropriate for certain dereliction offenses

.
F ifth and f inally, overruling our precedent would have repercussions within the military justice system

. Military
law maintains obedience and discipline to ensure that servicemembers are ready to perform the ir mission. See Parker v. Levy , 417 U.S. 733, 744 (1974) ; see also Schlesinger
v. Councilman , 420 U.S. 738, 757 (1975) (“To prepare for and perform its vital role [to fight or be ready to fight], the mil itary must insist upon a respect for duty and a discipline without counterpart in civilian life.”)

. A negligent dereliction of duty offense provides commanders with one means to a ssure that the objectives of the military mission are achieved by holding servicemembers accountab le for performance of
their military duties whether by court

- martial or nonjudicial punishment under Article 15, UCMJ, 10 U.S.C. § 815 (2012). Overruling our precedent would undermine an important
facet of the commander’s ability to enforce accou ntability of military members ’ responsibility to perform their duties.

Upon consider ation of these five factors, we conclude that Appellant has not demonstrated any justification for this
Court to overrule our prior negligent dereliction of duty d ecisions

. Instead, these cases have “effectively become part of the statutory scheme.” Kimble , 135 S. Ct. at 2409. 6

I II

. For the reasons set forth above, the military judge did

not plainly err by providing the members with a negligent dereliction of duty instruct ion . Accordingly, we affirm the judgment of the United States Air Force Court of Criminal Appeals.

5 The President’s authorized maximum punishment for negl igent dereliction of duty is forfeiture of two

- thirds pay per month for three months and confinement for three months. MCM pt. IV, para. 16.e.(3)(A) (2012 ed.).

6 Of course, Co ngress may revise Article 92(3), UCMJ, if it di sagrees with this precedent. See Kimble , 135 S. Ct. at 2409 (noting that once a court engages in statutory interpretation, it is up to Congress “for acceptance or not as that branch elects”).