| Hey, Bret, Interesting scenario. I have seen this often, in fact. Am aware of no case law which finds an improper referral even when all recommendations are against it. You're seeing what happens when common sense and legal sense align, but moral cowardice prevails at convening authority/CMC guidance level. We give Art 120 "victims" their day in court to avoid the greater pain of family/public backlash for past allegations of failing to adequate pursue "military rape cases." I'm copying Haytham to see if he has any better insight or has found some case law. Unlikely to prevail in my view since recommendations are "advisory only." Wish I had more. I feel your pain, though. You just have to go to court and hand the accuser her ass (so to speak). And when she complains of ill treatment, you can point to the CA for pushing it to trial. S/f, Neal Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC 1800 Diagonal Rd, Suite 210 Alexandria, VA 22314 703.706.9566 The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. On Nov 1, 2011, at 12:42 PM, White Capt Bret A wrote: Neal, I wonder if you've run into this scenario before, and if so, if you can point me in the right direction: I have an Art 120 case (with other minor charges) with the following actions since the Art 32 investigation: - The IO finds "no evidence to support" the nonconsensual sex - The TC concurs with the IO - The Art 33 advice concurs with the IO - The SJA to the GCMCA also says "no evidence to support" the nonconsensual sex - All charges and specs referred to GCM without modification The CDC thinks that this is ripe for a motion to dismiss due to improper referral, but I can't find caselaw to support that assertion. Do you have any experience in this area from your days on the bench? I'd appreciate any pointer you have in this. V/r, Bret A. White Captain, U.S. Marine Corps Defense Counsel Defense Services Organization, Eastern Region Marine Corps Base, Quantico 3250 Catlin Avenue Quantico, VA 22134 Front Desk: 703.784.4615 Direct: 703.784.0405 Fax: 703.784.0259 |