An airman's 2014 conviction for rape, assault and battery was overturned Monday after an appeals court ruled an embattled general's decision to move forward on the case was tainted by the apparent unlawful command influence of the former secretary and chief of staff of the Air Force.
The U.S. Court of Appeals for the Armed Forces ruled that former Air Force Secretary Deborah Lee James and former Air Force Chief of Staff Gen. Mark Welsh "engage[d] in conduct that constituted unlawful command influence" that would lead "an objective, disinterested observer [to] harbor a significant doubt about the fairness of the proceeding" in the case of Airman Rodney Boyce.
The court reversed Boyce's 2014 conviction of one specification of rape on divers occasions, two specifications of assault consummated by a battery, and his sentence of a reduction in grade to E-1, forfeiture of all pay and allowances, and confinement for four years. The court sent the case back to the Judge Advocate General of the Air Force, authorizing a rehearing.
The involvement of controversial Lt. Gen. Craig Franklin, former commander of the Third Air Force who decided to go forward with the charges against Boyce, led to problems with the case.
Franklin came under fire in 2013 after he overturned the sexual assault conviction of Lt. Col. James Wilkerson, who Franklin felt was innocent. The Air Force ultimately reduced Wilkerson to the rank of major and kicked him out of the service after discovering that nearly a decade earlier he'd fathered a child with another woman while married.
Franklin's decision in Wilkerson's case led to major changes to the Uniform Code of Military Justice, removing commanders' authority to reverse court-martial convictions. He was also highly criticized in December 2013 for dismissing rape charges against an airman first class.
That same month, James took office. The court's opinion said that on Dec. 27, 2013, Welsh called Franklin to tell him James had "lost confidence" in him, and that he could either voluntarily retire — losing a star in the process, because he had not been a lieutenant general long enough to keep it in retirement — or wait for James to fire him in the near future. A few hours later, Franklin decided to retire, the opinion said.
That same day, Franklin received the referral package with Boyce's charges, the court said. He referred Boyce's case to a general court-martial on Jan. 6, 2014, and, two days later, he announced his plans to step down from his command and retire, effective April 1, 2014.
Boyce's counsel interviewed Franklin later that month, the decision said. Franklin told the lawyer he decided to refer Boyce's case independently of the controversy surrounding him, but acknowledged that there "probably is an appearance of UCI [unlawful command influence], but I wasn't affected by it." Franklin also said it "would be foolish to say there is no appearance of UCI."
During the 2014 trial, the military judge dismissed a defense motion to drop charges against Boyce due to unlawful command influence. That judge ruled that Franklin's impending retirement and track record of going "against the interests of others in the military" made him "the most bombproof of any convening authority out there" when it came to resisting command influence.
The appeals court disagreed that Franklin was immune from influence.
"If the Secretary came to believe that Lt. Gen. Franklin was obstinately 'refusing' to refer 'another' meritorious case to a general court-martial, she could have removed him
immediately
[italics original] from his position of command — which likely would have carried significant consequences in terms of adverse public attention and post-military career opportunities," the decision read.
However, the appeals court did not find James and Welsh engaged in an actual unlawful command influence, and felt it is unlikely that another general serving as convening authority in the Boyce case would have come to a different conclusion than Franklin.
The U.S. Court of Appeals for the Armed Forces on May 22, 2017, overturned an airman's rape conviction, citing undue command influence from former Air Force Secretary Deborah Lee James, right, and former Chief of Staff Gen. Mark Welsh.
Photo Credit: Scott Ash/Air Force
The decision found that James and Welsh "failed to take the necessary prophylactic steps" to make sure Franklin's handling of subsequent sexual assault cases didn't lead to the appearance of a conflict of interest. The appeals court said that after losing confidence in him, James and Welsh "failed to direct him not to take any further action in regard to court-martial matters pending before him" and didn't tell him to send such matters to another general court-martial convening authority or delay acting on them until his replacement had taken over.
Through an Air Force spokesman, James said she did not have personal knowledge of the Boyce case, and because the case is still under review, declined to comment. Welsh also declined to comment.
Retired Col. Don Christensen — the Air Force's former chief prosecutor and head of the group Protect Our Defenders, a group that advocates for sexual assault victims in the military — said that the overturning of Boyce's conviction "is a strong indictment of the command and control of the military justice system." Christensen was chief prosecutor at the time Wilkerson's and Boyce's cases went to trial.
"There was an easy fix to this, and that was remove this authority from Franklin after the Wilkerson case, and give it to a higher-ranking commander," Christensen said. "It was an obvious answer. [Franklin] was in a no-win situation [whether he continued with the case or dropped it], and [Air Force leaders] left him in that no-win situation."
Christensen said this shows the military needs to remove from the chain of command the power to decide whether or not to prosecute sexual assault cases, and instead put the decision authority in the hands of independent prosecutors, outside of the chain of command.
Christensen said he doubts Boyce's case will go back to trial.
"I would be very surprised if the victim would be willing to go through it a second time," he said. "It's hard enough the first time, and then when you find out the case has been overturned because of not something you did, but because some general messed up, it's hard to go through it a second time."
Stephen Losey is the air warfare reporter for Defense News. He previously covered leadership and personnel issues at Air Force Times, and the Pentagon, special operations and air warfare at Military.com. He has traveled to the Middle East to cover U.S. Air Force operations.
