United States v. Ochoa

LatimeR, Judge

(dissenting):

I dissent.

In my separate opinions in United States v Tinker, 10 USCMA 292, 27 CMR 366, and United States v Keeler, 10 USCMA 319, 27 CMR 393, I analyzed the decisions of this Court dealing with the issue at hand. From those authorities the rule is clear that an officer in command of a camp, post, or station, or his equivalent, has the authority to issue general orders within the purview of Article 92(1), Uniform Code of Military Justice, 10 USC § 892, while a commander of a company or comparable unit does not. At the least, our previous holdings have furnished those limits as to the commands which are or are not authorized to issue the orders, but, with the publication of this opinion, the ceiling is lifted and each case must be determined by a combination of criteria which no one knows. Rather than compound the confusion which has existed, I prefer to work within the designated bounds and, when I do, it appears clearly that the commanding officer of the installation involved had the authority to issue general orders. I would, therefore, answer the certified question in the affirmative and reverse the decision of the board of review.