United States v. Milldebrandt

Quinn, Chief Judge

(concurring in the result) :

I have serious doubts about the validity of a number of the implications of the present opinion. Among them are the following: (1) That we approve Colonel Winthrop’s dictum that military personnel on leave are “not subject to the military jurisdiction”; (2) that when an order can be construed as legal or illegal, the latter is preferable to the former. Cf. United States v Trani, 1 USCMA 293, 3 CMR 27; and (3) that it is a rule of law rather than a statement of policy that persons on leave cannot be required to perform “strictly military duties,” unless “compelled by . . . some grave danger or unusual circumstance.” However, I agree with the result.

Persons in the military service are neither puppets nor robots. They are not subject to the willy-nilly push or pull of a capricious superior, at least as far as trial and punishment by court-martial is concerned. In that area they are human beings endowed with legal and personal rights which are not subject to military order. Congress left no room for doubt about that. It did not say that the violation of any order was punishable by court-martial, but only that the violation of a lawful order was. Article 92, Uniform Code of Military Justice, 10 USC § 892.

The legality of an order is not determined solely by its source. Consideration must also be given to its content. If an order imposes a limitation on a personal right, it must appear that it is “reasonably necessary to safeguard and protect the morale, discipline and usefulness of the members of a command and . . . directly connected with the maintenance of good order in the services.” United States v Martin, 1 USCMA 674, 676, 5 CMR 102. I suppose that no one would doubt the invalidity of an order which directs military personnel who purchase an automobile to buy only from a particular manufacturer or the illegality of an order which requires military personnel who telephone family or friends by long distance to call on a person to person basis, instead of station to station. In cases of this kind, we must look closely to the connection between the personal act required by the order, and the needs of the military service. United States v Martin, supra; see also United States v Voorhees, 4 USCMA 509, 16 CMR 83; cf. United States v Noriega, 7 USCMA 196, 21 CMR 322. As the principal opinion points out, the order here is completely unrelated to any requirement of the military service. On that basis it is not a “lawful order” within the meaning of Article 92 of the Code. I would, therefore, answer the first certified question in the negative and' affirm the decision of the board of review.