## Facts

- An Army private was tried by special court-martial at Fort Sill, Oklahoma, and convicted (contrary to pleas) of breaching the peace, two assaults with a dangerous weapon (knife), and wrongfully communicating a threat (UCMJ arts. 116, 128, 134).
- The misconduct included (1) pointing and lunging with a knife at a soldier after a minor dispute, followed later by a retaliatory threat against that soldier for reporting the assault; and (2) an unrelated attack on a Marine trainee, first with fists and then with a knife.
- The members sentenced him to a bad-conduct discharge (BCD), 6 months’ confinement, forfeiture of $600 pay per month for 3 months, and reduction to E-1; the convening authority approved the sentence.
- Before sentencing instructions, the military judge indicated he would give a mandatory instruction describing a BCD as a serious punishment that deprives a servicemember of service-related benefits.
- Defense counsel requested an additional standard instruction explaining that a punitive discharge carries an “ineradicable stigma” affecting future legal rights, economic opportunities, and social acceptance.
- The military judge denied the request without stating reasons on the record.

## Issues

1. Whether the military judge committed reversible error by refusing a defense-requested standard sentencing instruction on the “ineradicable stigma” of a punitive discharge and by failing to provide reasons on the record as required by R.C.M. 1005(c).
2. If error occurred, whether the omission materially prejudiced the accused’s substantial rights.

## Decision

- The court held the military judge erred by denying the requested standard “ineradicable stigma” instruction without explaining the basis of the denial on the record, contrary to R.C.M. 1005(c).
- The court held the error was harmless because the record did not show material prejudice to a substantial right.
- The findings and sentence were affirmed.

## Legal Principles

- When a party requests a sentencing instruction and the military judge denies it, R.C.M. 1005(c) requires the judge to state on the record at least a brief explanation for the ruling.
- Refusal to give a legally appropriate, defense-requested standard sentencing instruction may be error, particularly when the judge provides no record explanation.
- Sentencing-instruction error warrants relief only if it materially prejudices a substantial right; the reviewing court evaluates prejudice in light of the entire sentencing context.
- An omitted instruction concerning collateral consequences of a punitive discharge can be harmless where members are otherwise instructed that a BCD is a serious punishment with significant consequences and the sentence is strongly supported by the offenses.

## Conclusion

The court ruled that denying a requested standard “ineradicable stigma” instruction without giving reasons on the record violated R.C.M. 1005(c), but it affirmed because the members were otherwise instructed on the seriousness and consequences of a bad-conduct discharge and the omission did not materially affect the sentence.


United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001)