United States v. Boren

U NITED S TATES A IR F ORCE C OURT OF C RIMINAL APPEALS UNITED STATES ) No. ACM 40296 Appellee ) ) v. ) ) ORDER Douglas C. BOREN ) First Lieutenant (O-2) ) U.S. Air Force ) Appellant ) Special Panel On 7 August 2021, Appellant was convicted at a general court-martial of one specification of violating Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (Manual for Courts-Martial, United States (2019 ed.) (2019 MCM)). 1 On 8 August 2021, members adjudged a sentence consisting of days’ confinement, forfeiture of $2,645.00 pay per month for six months, and a reprimand. On 26 August 2021, the convening authority approved the sen- tence in its entirety. On 12 May 2022, the military judge entered the judgment of the court-martial.

On 3 June 2022, a designated judge advocate completed a review of the record of trial pursuant to Article 65(d), UCMJ, 10 U.S.C. § 865(d) (2019 MCM). The judge advocate concluded the general court-martial had jurisdic- tion over Appellant and the offense, the charge and specification stated an of- fense, “the sentence was legal,” and the findings and sentence were correct in law and fact.

On 8 March 2023, Appellant filed a notice of direct appeal pursuant to Ar- ticle 66(b)(1)(A), UCMJ, 10 U.S.C. § 866(b)(1)(A), which the court docketed on March 2023. 2 On 5 June 2024, Appellant submitted a “Motion for Leave to File and Mo- tion for Remand” to this court, identifying several discrepancies within the rec- ord. Appellant claims that the record of trial (ROT) has the following deficien- cies:

1 Unless previous versions as printed in the 2019 MCM are cited, references to the UCMJ and Rules for Courts-Martial are to versions currently in effect.

2 Appellant’s notice was filed pro se. However, he now is represented by military ap- pellate defense counsel. See National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, § 544(b)(1)(A), 136 Stat. 2395, 2582 (23 Dec. 2022).

United States v. Boren, No. ACM 40296

• Preliminary Hearing Officer (PHO) [E]xhibits 2 (a report of in- vestigation (ROI)), 3 (another ROI), and 5 (the audio from the preliminary hearing) are non-functional on the DVD provided in the ROT in volume 3.

• The interview of SF that is an attachment to Appellate Exhibit IV does not function.

• Appellate Exhibit XXIX, the excusal of a panel member, Major AG, is missing.

On 12 June 2024, the Government filed its response opposing Appellant’s Motion to Remand. Separately, the Government moved this court to attach copies of all items identified as missing or non-functional as described supra. On 24 June 2024, this court separately granted the Government’s motion to attach. However, that action did not remedy the fact that appellate exhibits are required contents in the ROT. See Rule for Courts Martial (R.C.M.)

1112(b)(5).

Accordingly, it is by the court on this 24th day of June, 2024, ORDERED: Appellant’s “Motion for Leave to File and Motion for Remand” are GRANTED.

It is further ordered: The record of trial in Appellant’s case is REMANDED to the Chief Trial Judge, Air Force Trial Judiciary, for correction of the record, specifically to ac- count for any missing exhibits or documents, including, but not limited to, the portions referenced above. See Article 66(f)(3), UCMJ, 10 U.S.C. § 866(f)(3); R.C.M. 1112(d)(2)–(3). Thereafter, the record of trial will be returned to this court for completion of its appellate review under Article 66(d), UCMJ, 10 U.S.C. § 866(d), not later than 10 July 2024.

This court notes that over the past year a number of incomplete records have been submitted to this court; therefore, we encourage a complete and thorough review of the full record before it is returned to this court.

Should the 10 July 2024 deadline not be met, the Chief Trial Judge, Air Force Trial Judiciary, or his designee, shall provide a memorandum for record not later than 11 July 2024 to the Government Trial and Appellate Operations Division (JAJG) to submit to this court as a motion to attach. See A.F. Ct. Crim.

United States v. Boren, No. ACM 40296

App. R. 23.3(b). Until the record of trial is returned to the court, a memoran- dum of record will be prepared every seven days thereafter.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court