Michael J. Hymel v. United States

Petitioner was charged with being derelict in the performance of his military duties, a violation of 10 U.S.C. § 892. The charge alleged Petitioner engaged in “unprofessional relationships,” which a regulation ostensibly proscribed. Pet. 3a. Petitioner ultimately pled guilty to this charge. Under military law, a defendant who pleads guilty must set out the underlying factual basis for the offense through a colloquy with the trial judge, often referred to as the providence or Care 1 inquiry. Despite this requirement, during the providence inquiry, the trial judge only elicited that Petitioner drank alcohol, danced in the presence of his subordinates, and later fell asleep in the presence of his subordinates, acts not prohibited by the applicable regulation. The Air Force Court of Criminal Appeals affirmed this conviction applying a standard of review in the “light most favorable to the Government,” Pet. 12a, even though that standard is grounded only in a concurrence and is inconsistent with the standard used by the United States Court of Appeals for the Armed Forces to assess guilty pleas. The question presented is: Did the Court of Appeals for the Armed Forces abuse its discretion under 10 U.S.C. § 867(a)(3) by failing to grant review “upon petition of the accused and on good cause shown,” where Petitioner made an unrebutted showing of good cause? 1 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969)