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Army dismisses charges against colonel in HIV case

July 9, 2015 (Photo Credit: Army)

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 alleged affair that 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.

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