Now that the military is dragging up old alleged sexual assault cases and charging them, CAAF’s February 6, 2018, opinion in *U.S. v. Mangahas* is a big one. In a nutshell, CAAF (the Court of Appeals for the Armed Forces, the highest appellate court in the U.S. military) ruled that the statute of limitations for allegations of rape prior to January 6, 2006, (or prior to October 1, 2007 for child rape) is five years. http://www.armfor.uscourts.gov/newcaaf/opinions/2017OctTerm/170434.pdf.
There have been a number of cases from that period which should now be dismissed. There have been old allegations from West Point and the other military academies, as well as possibly the child rape allegations against MG Grazioplene, which fall within this period. The basis of the decision is interesting: Article 43 of the UCMJ contains a five year statute of limitations for most UCMJ offenses (today there are many exceptions). As of 1986 that statute of limitation applied to any UCMJ offense that was not punishable by death. Until recently, the UCMJ allowed for a potential death sentence for rape. But, in 1977 the U.S. Supreme Court found that death was an unconstitutional punishment for the rape of an adult (more recently it found the same for child rape). So, rape wasn’t really punishable by death under the UCMJ and therefore the five year statute of limitations applied (after 2006 there is no statute of limitations for rape under the UCMJ). If you are facing an ongoing investigation into sexual assault, you need an experienced military defense lawyer who knows how to research these issues.
Also interesting, was the CAAF decision on February 8, 2018, in *U.S. v. Jerkins*, to find that an Army judge should not have allowed a non-final GOMOR (General Officer of Memorandum of Reprimand) to be introduced on sentencing. http://www.armfor.uscourts.gov/newcaaf/opinions/2017OctTerm/170203.pdf
In *Jerkins* a charge was dropped right before arraignment (likely because the prosecution had no way of proving it) and a GOMOR was issued to the accused, claiming that he was unfit for military service — a message to the court martial panel that they should give him a discharge. However, the real injustice here is simply the reminder that if it had been a completed GOMOR it would have been successfully introduced on sentencing and the military courts would have allowed it. Which is truly unfair. The dirty secret about GOMORs (or the equivalents in the other services) is that they allow the prosecution to screw you without any real due process. They are the government’s secret weapon. They can be given to you for anything and all can do is write a rebuttal. That’s it. Then they can introduce them at trial as part of your permanent record or instead they can use them to kick you out of the service with up to an Other Than Honorable discharge, without any real due process (separation boards are often fixed), and seriously damage the rest of your life with the consequences. I’ve had a number of cases where I wished the government had actually brought my client to court martial as threatened (where we would have gotten an acquittal) and instead they played the reprimand/chapter/BOI/grade reduction game with the deck stacked against the service member. Reprimands are serious business, you need the help of an experienced military defense lawyer to combat them.