INSTRUCTED THE MEMBERS, OVER DEFENSE OBJECTION, THAT THEY COULD USE THIS EVIDENCE TO DETERMINE THAT HE OBSTRUCTED JUSTICE IN THE FOUR CHARGED INSTANCES. 41
3. THE APPELLANT WAS DENIED THE RIGHT TO SUBMIT CLEMENCY MATTERS TO THE CONVENING AUTHORITY.42
4. DISJUNCTIVE PLEADING IS IMPROPER BECAUSE IT CREATES AMBIGUITY AND MAY FAIL TO INFORM AN ACCUSED OF WHAT HE MUST DEFEND AGAINST. HERE, THE GOVERNMENT CHARGED 18 SPECIFICATIONS WITH ALTERNATE THEORIES OF LIABILITY, ALL PLEADED DISJUNCTIVELY TO CREATE 65 POSSIBLE THEORIES OF LIABILITY. THE MEMBERS' GENERAL VERDICT OF GUILT WITHOUT EXCEPTIONS OR SUBSTITUTIONS CREATED AN AMBIGUOUS VERDICT THAT PREVENTS THIS COURT FROM REVIEWING THIS CASE FOR FACTUAL SUFFICIENCY.43
5. THE GOVERNMENT MUST PROVE EACH ELEMENT OF AN OFFENSE BEYOND A REASONABLE DOUBT. HERE, THE GOVERNMENT FAILED TO SATISFY EACH ELEMENT OF OBSTRUCTING JUSTICE RENDERING THIS CONVICTION LEGALLY AND FACTUALLY INSUFFICIENT.
6. OBSTRUCTING JUSTICE REQUIRES THE ELEMENT OF SPECIFIC INTENT TO INFLUENCE, IMPEDE, OR OTHERWISE OBSTRUCT THE DUE ADMINISTRATION OF JUSTICE, YET THIS ELEMENT WAS NOT ALLEGED. THEREFORE THE SPECIFICATIONS ALLEGING OBSTRUCTION OF JUSTICE DO NOT STATE AN OFFENSE.
AOEs 2 and 6 were considered and are without merit. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992). AOE 3 was resolved when the court ordered new post-trial processing. AOE 4 has been reviewed and is without merit. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992). See United States v. Brown, 65 M.J. 356, 359-60 (C.A.A.F. 2007) (quoting United States v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987)); United States v. Miles, 71 M.J. 671, 673 (N.M.Ct.Crim.App. 2012).
7. WHAT IS SUBSTANTIALLY ONE TRANSACTION SHOULD NOT BE MADE THE BASIS FOR AN UNREASONABLE MULTIPLICATION OF CHARGES. THE GOVERNMENT CHARGED STAFF SERGEANT CHIKAKA WITH THREE SPECIFICATIONS OF OBSTRUCTION OF JUSTICE FOR SENDING ONE TEXT MESSAGE AND WITH FIVE OFFENSES FOR ONE INAPPROPRIATE RELATIONSHIP WITH ONE RECRUIT APPLICANT. THIS CHARGING SCHEME AMOUNTS TO AN UNREASONABLE MULTIPLICATION OF CHARGES.
8. DUE PROCESS REQUIRES SPEEDY POST-TRIAL PROCESSING OF AN APPELLANT'S CASE. HERE, THE GOVERNMENT FAILED TO MEET THE ESTABLISHED STANDARDS FOR TIMELINESS AND COMPLETENESS IN POST-TRIAL PROCESSING AND SO VIOLATED SSGT CHIKAKA'S RIGHT TO DUE PROCESS.
9. EQUAL PROTECTION REQUIRES THE LAW TO TREAT SIMILARLY-SITUATED PEOPLE ALIKE. ARTICLE 134, UCMJ, ADULTERY DISPARATELY TREATS HETEROSEXUALS AND HOMOSEXUALS IN TWO WAYS: (1) IT APPLIES ONLY TO HETEROSEXUALS BY REQUIRING SEXUAL INTERCOURSE FOR CRIMINAL LIABILITY AND PUNISHMENT; (2) IT DENIES HOMOSEXUALS THE SAME MARRIAGE-FOSTERING ENFORCEMENT OF FIDELITY AFFORDED HETEROSEXUALS. THEREFORE HIS CONVICTION SHOULD BE SET ASIDE.44
10. ARTICLE 37(a), UCMJ, PROHIBITS UNLAWFUL COMMAND INFLUENCE OVER A COURT-MARTIAL. HERE, THE TRIAL COUNSEL ENTERED INTO EVIDENCE "OPERATION RESTORE VIGILANCE," A CAMPAIGN PLAN TO "FULLY OPERATIONALIZE THE COMMANDANT'S GUIDANCE" FROM THE HERITAGE TOUR; A PHOTO OF THE COMMANDANT POSING WITH AN ACCUSER'S GRANDFATHER; AND SOLICITED TESTIMONY FROM APPELLANT'S COMMANDING OFFICER THAT IT WAS IMPORTANT FOR THE MEMBERS TO ADJUDGE A HARSH SENTENCE IN THIS CASE, THEREBY INSERTING UNLAWFUL COMMAND INFLUENCE INTO THE TRIAL.
11. THE MILITARY JUDGE ABUSED HIS DISCRETION IN FAILING TO SUPPRESS TESTIMONY CONCERNING THE CONTENTS OF