Army dismisses charges against colonel in HIV case

2015-07-10T11:01:59-04:00

From: Army Times

The Army has dismissed all charges against a Special Forces officer who was accused of knowingly exposing a woman to HIV.

Col. Jeffrey Pounding had been referred to court-martial by Maj. Gen. Jeffrey Buchanan, commander of the Military District of Washington, on Jan. 9. His court-martial was supposed to start July 21.

In a memorandum signed June 4, Buchanan, upon the advice of his staff judge advocate Col. John Carrell, withdrew and dismissed all the charges and specifications in the case against Pounding, said Col. Josslyn Aberle, a spokeswoman for the Military District of Washington.

Pounding was accused of knowingly exposing a woman to HIV by having unprotected sex.

The now-dismissed charges against him included assault, adultery and conduct unbecoming an officer.

The charges against Pounding stemmed from an affair that allegedly spanned Texas, Virginia and North Carolina, according to testimony during the Article 32 investigation in November at Fort McNair, Washington, D.C.

Buchanan decided to dismiss the charges because of newly discovered evidence in the case and changes to military law based on a recent appellate opinion, Aberle said.

Aberle did not specify the nature or contents of the newly discovered evidence.

"The additional evidence that was discovered is of a sensitive nature and will not be disclosed in order to protect both parties," she said.

The recent appellate opinion, released Feb. 23 by the Court of Appeals for the Armed Forces, was for U.S. vs. Gutierrez, a case with similar charges.

The appeals court's opinion "likely played a significant role in the government's decision to dismiss one of the charges against Col. Pounding," said Capt. Matthew Reid, Pounding's defense attorney, in a statement. "The defense also provided a significant amount of exculpatory evidence which called into question the strength and credibility of the government's entire case, impacting the government's decision to dismiss all charges."

In U.S. vs. Gutierrez, Air Force Tech. Sgt. David Gutierrez was convicted of offenses including aggravated assault for failing to disclose his HIV status before engaging in consensual sexual activity with multiple partners, according to the court's opinion.

Gutierrez was sentenced to eight years of confinement, a dishonorable discharge, forfeiture of pay and allowances and reduction to the lowest enlisted grade.

"The critical question raised in United States v. Gutierrez addressed whether exposure to HIV is likely to produce death or grievous bodily harm," Aberle said, adding that Article 128 of the Uniformed Code of Military Justice states an aggravated assault includes the element that the assault was committed with "a dangerous weapon or other means or force likely to produce death or grievous bodily harm."

The court's opinion states: "Reviewing the evidence in a light most favorable to the prosecution, the expert testimony presented in this case reflects that at most, Appellant had a 1-in-500 chance to transmit HIV to some of his partners. There is no evidence in the record to indicate that Appellant actually transmitted HIV."

In short, the appeals court found that Gutierrez's conviction for aggravated assault, which was based on his failure to disclose his HIV status, was "legally insufficient," according to analysis on CAAFlog.com, a military justice blog covering the Court of Appeals for the Armed Forces and the services' Courts of Criminal Appeals.

The court reversed Gutierrez's aggravated assault conviction.

The court's opinion "significantly impacted subsequent cases of this nature," Aberle said.

In the case against Pounding, aggravated assault charges were preferred and referred before the court issued its opinion, she said.

"Based on the precedent set in the Gutierrez case, it was determined that the evidence in Pounding's case was not legally sufficient to meet the element of 'likely to produce death or grievous bodily harm,' " Aberle said.

As the general courts-martial convening authority, Buchanan had the option of dismissing all or some of the charges and specifications against Pounding, Aberle said. He also could have allowed the case to continue to trial.

Pounding's defense counsel was informed of Buchanan's decision to dismiss the charges, Aberle said.

Pounding will remain on active-duty and assigned to the National Guard Bureau, where he had been assigned as the deputy director of the Guard Bureau's strategic plans and policy directorate (J-5).

The woman who accused Pounding of exposing her to HIV said their relationship began when they were both at Texas A&M University. He was an Army fellow there, the woman testified during the Article 32 hearing.

As policy, Army Times does not name alleged victims of assault of a sexual nature.

The pair continued their relationship for more than two years, from 2009 through 2011, even after Pounding completed his fellowship at the university and moved away from Texas, the woman said. She also said she met Pounding in the Washington, D.C., area and near Fort Bragg, North Carolina, when he was on work trips.

The woman testified they did not use protection when they had sex, and he did not disclose his HIV status to her.

The woman said she was "devastated" when she received a call from a public health official to say she'd been exposed to HIV.

During her testimony, the woman said she had since been tested twice and is negative for HIV.

According to Army Regulation 600-110, soldiers infected with HIV are to receive a medical follow-up and evaluation every six months and as directed by an infectious disease physician.

Infected soldiers who don't show "progressive clinical illness or immunological deficiency during periodic evaluations will not be involuntarily separated solely because they are HIV infected," according to the regulation, which covers the identification, surveillance and administration of personnel with HIV.

These soldiers will be limited to duty within the U.S., according to the regulation.

http://www.armytimes.com/story/military/crime/2015/07/09/col-jeffrey-pounding-hiv-charges-dismissed/29870619/

Response by CH (MAJ) William Beaver made Jul 10 at 2015 11:03 AM

2015-07-10T11:03:21-04:00

Wow. Something is up

Response by CPT Private RallyPoint Member made Jul 10 at 2015 11:17 AM

2015-07-10T11:17:31-04:00

Sir, you have a great sense of humor. :)

Response by MSgt Private RallyPoint Member made Jul 10 at 2015 11:24 AM

2015-07-10T11:24:49-04:00

If he committed adultery he committed adultery, he should have been at least charged with that or am I off base.

Response by MSG Private RallyPoint Member made Jul 10 at 2015 11:35 AM

2015-07-10T11:35:41-04:00

They it is due to new evidence discovered that will not be disclosed due to the sensitive nature of the evidence. Can anyone hand me the dustpan?

Response by LTC Stephen F. made Jul 10 at 2015 1:05 PM

2015-07-10T13:05:48-04:00

I expect this will be part of the plot of a new movie or better yet a TV series which will stretch it out and insert appellate court ruling bearing on a case at key points in the season when all hope seems to be lost. :-)
Truth is definitely stranger than fiction especially in the world of jurisprudence in this nation. The prudent part of jurisprudence is generally lacking in many cases; but, thankfully not all.

Response by CPT John Arnold made Jul 13 at 2015 5:21 PM

2015-07-13T17:21:32-04:00

Hard to believe that the investigating officer a Maj. Gen. Jeffrey Buchanan, did not posses all the material in making the determination that a court-martial should convene on July 21, 2015 and now all charges are dropped. Well the investigating officer (BG) must be either embarrassed or mad as hell at the DA decision not to proceed with the court martial. Makes one scratch thier head and wonder.....

Response by SPC Matt Johnson made Jul 13 at 2015 7:21 PM

2015-07-13T19:21:19-04:00

if someone dies from his HIV, it's murder plain and simple. HIV is a disease that can turn into AIDs and both have no guaranteed cure. This piece of cow dung is a murderer. If you know you have HIV or AIDs and have sex with people without telling them it's premeditated murder. I'm very passionate about this subject after having a good friend get the disease from people who knew they had and still had unprotected sex anyway without telling the person they where positive. And just so know she is women that got it from man

Response by MSG Brad Sand made Jul 14 at 2015 8:40 AM

2015-07-14T08:40:41-04:00

Interesting. They are dismissing all charges? I guess rank does have some privileges?

Response by SSG Scott Burk made Jul 14 at 2015 10:22 PM

2015-07-14T22:22:16-04:00

Wow, women actually had sex with him?!

Response by 1SG Michael Bonnett made Jun 2 at 2016 1:50 PM

2016-06-02T13:50:14-04:00

"The additional evidence that was discovered is of a sensitive nature and will not be disclosed in order to protect both parties,"

Voice heard over telephone "What are you doing? That's an officer, not an enlisted man"

Least we forget... "Soldier with HIV Jailed for Unsafe Sex" "A military judge sentenced Dalton to 40 months in prison. The sentence also included a reduction in rank and a dishonorable discharge."

http://www.military.com/NewsContent/0,13319,155399,00.html

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Response by SFC William Farrell made Sep 1 at 2017 8:09 PM

2017-09-01T20:09:27-04:00

Sounds like he got away with murder Army Times. I can only begin to imagine how that poor woman must feel.

Response by SGM Erik Marquez made Sep 1 at 2017 8:34 PM

2017-09-01T20:34:16-04:00

So it appears the good officer is just a low life, not a criminal lowlife

Response by PVT Raymond Lopez made Sep 2 at 2017 6:54 PM

2017-09-02T18:54:05-04:00

Is this an Aggie joke?

Response by CWO3 Private RallyPoint Member made Sep 3 at 2017 4:58 PM

2017-09-03T16:58:34-04:00

Maybe he didn't care. I don't know what the reasons were, but he should have been a gentleman of responsibility and let his mate know before hand. Plus, he should have been discharged without pay, leave and retirement benefits.

Response by LTC Trent Klug made Jan 28 at 2019 11:03 PM

2019-01-28T23:03:07-05:00

Interesting development. I can't say anymore as I will get myself into trouble.