THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING SPC NEW’S CAUSAL CHALLENGE AGAINST A MEMBER WHO ORDERED A SUBORDINATE TO WEAR THE UN UNIFORM AND DEPLOY TO MACEDONIA.
Appellant’s case does not justify the application of implied bias, especially as the fact that the alleged bias goes to the issue of lawfulness of the order to wear the UN uniform, an issue that COL Kwist was not required to decide given the military judge’s ruling that the issue was an interlocutory matter.
THE EVIDENCE ADDUCED AT TRIAL WAS LEGALLY AND FACTUALLY INSUFFICIENT TO PROVE THAT SPC NEW FAILED TO OBEY A LAWFUL ORDER.
BECAUSE THE EVIDENCE AFTER THE GOVERNMENT’S CASE IN CHIEF SHOWED THAT SPC NEW WAS PREVENTED FROM COMPLYING WITH THE ORDER, THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT THE DEFENSE MOTION FOR A FINDING OF NOT GUILTY.
SPC NEW’S FIFTH AND SIXTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BECAUSE THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF INABILITY.
SPC NEW’S FIFTH AND SIXTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BECAUSE THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF OBEDIENCE TO ORDERS.
SPC NEW’S FIFTH AND SIXTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BECAUSE THE MILITARY JUDGE INSTRUCTED THE MEMBERS ERRONEOUSLY ON THE DEFENSE OF MISTAKE.
SPC NEW’S FIFTH AND SIXTH AMENDMENT RIGHTS TO DUE PROCESS AND A FAIR TRIAL; HIS RIGHT TO A TRIAL BY MEMBERS; AND HIS RIGHTS TO COMPULSORY PROCESS, CONFRONTATION OF WITNESSES, AND EFFECTIVE ASSISTANCE OF COUNSEL; WERE VIOLATED BECAUSE THE MILITARY JUDGE FAILED TO PERMIT THE MEMBERS TO HEAR EVIDENCE CONCERNING THE UNLAWFULNESS OF THE ORDER.
Note 2. If there is a factual dispute as to whether or not the order was lawful, that dispute must be resolved by the members in connection with their determination of guilt or innocence. The following instruction should be given in cases where the military judge concludes that the lawfulness of the order presents an issue of fact for determination by the members.
THE MILITARY JUDGE ERRED BY FINDING THAT THE ORDER WAS LAWFUL. 12

Without the legitimacy and legality of the deployment to Macedonia in UN Uniform, LTC Layfield possessed no more authority to order SPC New to don the UN Uniform than he would have had to, say, order SPC New to walk around in baby blue leotards, or to cross-dress as a transvestite, or to wear a swastika on his headgear, or to dress in a white hood and a white sheet. The deployment and the order to don the UN Uniform were inextricably linked; if the deployment is illegal, LTC Layfield’s order to don the UN Uniform had no military purpose, was illegitimate, was unlawful, and SPC New had no duty to obey it.
It is a basic tenet of our legal system that a government agency is not at liberty to ignore its own laws and that agency action in contravention of applicable statutes and regulations is unlawful. The military departments enjoy no immunity from this proscription. It is the duty of the federal courts to inquire whether an action of a military agency conforms to the law, or is instead arbitrary, capricious, or contrary to the statutes and regulations governing that agency. The logic of these cases derives from the self-evident proposition that the Government must obey its own laws.

There are sweeping statements to the effect that all questions touching foreign relations are political questions . . . . Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.
The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloging.
The Court disagrees with defendants that this is the type of political question which involves potential judicial interference with executive discretion in the foreign affairs field. Plaintiffs do not seek relief that would dictate foreign policy but rather to enforce existing law concerning the procedures for decision-making. Moreover, the issue here is not a political question simply because it involves the apportionment of power between the executive and legislative branches. The duty of courts to decide such questions has been repeatedly affirmed by the Supreme Court.

In concluding that no justiciable controversy is presented, it should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel. . . .
When the President takes measures incompatible with the expressed . . . will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice completely obligatory.... It is prescribing limits, and declaring that those limits may be passed at pleasure.
AN APPROVED SENTENCE THAT INCLUDES A BAD CONDUCT DISCHARGE FOR SPC NEW’S OFFENSE IS INAPPROPRIATELY SEVERE.
The severity of these penalties, unknown to civil life as they are, cannot be denied. . . [T]he ordering of a punitive discharge so characterizes an individual that his whole future is utterly destroyed. He is marked far beyond the civilian felon, hampered as he may be by the sneering term "ex-con," for, justifiedly or not, the punitive discharge so dishonors and disgraces an accused that he finds employment virtually impossible; is subjected to many legal deprivations; and is regarded with horror by his fellow citizens. Truly, it has come to be the modern equivalent of the ancient practice of branding felons, and the stain it leaves is as ineradicable. And, in the case of a soldier with extended service, the discharge can be even more severe, for, as the Chief Judge wisely noted [citation omitted] "an executed punitive discharge terminates military status as completely as an executed death penalty ends mortal
life."