A number of opinions have come from NMCCA and AFCCA.
Here’s an NMCCA opinion of interest in United States v. Mokgoatsane.
The military judge returned from deliberations, awarding the sentence supra, followed by a “formal recommendation” on the record to the CA that an examination pursuant to R.C.M. 706 be conducted while the appellant served the adjudged confinement. Id. at 73. Despite the military judge’s inquiry into the providence of the appellant’s pleas, this recommendation betrays that the military judge harbored real doubt as to whether the appellant “lacked mental responsibility for any offense charged or lack[ed] capacity to stand trial.” R.C.M. 706. Per the rule, it was the military judge’s responsibility, at this point in the proceedings, to address the matter, not the CA’s.
So,
The evidence presented in this case establishes to our satisfaction that the possibility that the appellant suffered from PTSD raised “a possible defense.” United States v. Phillippe, 63 M.J. 307, 310 (C.A.A.F. 2006). It was simply not possible, therefore, for the military judge to conduct the necessary inquiry into the appellant’s pleas without exploring the impact of these mental health issues on those pleas. United
States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005); see also United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969)(requiring the military judge to establish, on the record, the factual bases that establish that “the acts or omissions of the accused constitute the offense or offenses to which he is pleading
guilty”).