United States v. Porter

Ferguson, Judge

(dissenting):

I dissent.

With my brothers’ decision in this case, the wheel completes its revolution upon the question of authority to issue lawful general orders and regulations, and we return to the situation which existed prior to our decisions in United States v Tinker, 10 USCMA 292, 27 CMR 366; United States v Keeler, 10 USCMA 319, 27 CMR 393; and United States v Ochoa, 10 USCMA 602, 28 CMR 168. Thus, we compound the confusion already rampant in this area and leave the armed services to reconcile opinions which are now in hopeless conflict.

The accused was convicted of violation of a lawful general order, “to wit: Paragraph lb (2), Section XV, Post Regulations, U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, dated 1 November 1957, Change Nr. 2, dated 15 May 1958,” in violation of Uniform Code of Military Justice, Article 92, 10 USC § 892. He was found guilty upon his plea and sentenced to bad-conduct discharge, total forfeitures, and confinement at hard labor for nine months. Intermediate appellate authorities affirmed the findings, but reduced the sentence upon the basis that it exceeded the legal maximum. The Judge Advocate General of the Army certified to this Court the question whether the board of review erred in limiting the maximum punishment for the violation of the order to another offense listed in the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951, and we granted accused’s cross-petition for review on the question whether the specification alleged an offense. It is to the last proposition that I direct my disagreement with the majority, for I am certain that the Commanding General, Fort Huachuca, or any other officer in charge of an ordinary post, camp, or station is not authorized to issue general orders and regulations.

It is true that this Court, in United States v Snyder, 1 USCMA 423, 4 CMR 15, and United States v Wade, 1 USCMA 459, 4 CMR 51, equated general orders and regulations to “standing orders” under the Articles of War. *176Thus, It concluded that these directives may be issued by a post commander. If I believed that Snyder and Wade, both supra, yet possessed vitality, I would join in affirming this case. Later decisions, however, indicate we have long since departed from the concept that general orders are standing orders and may be issued at the command level here involved.

In United States v Stone, 9 USCMA 191, 25 CMR 453, we upheld the authority of a theater command to issue lawful general orders and regulations. See also United States v Statham, 9 USCMA 200, 25 CMR 462. In United States v Tinker, supra, we found a similar power to exist in the Commander, United States Forces Azores, who was “the senior United States commander in the Azores with authority over substantially all United States personnel situated there, was responsible directly to CINCLANT, was the only United States commander in the Azores authorized to deal with Portuguese authorities in matters relating to the Azores, and was in a general sense the United States Commander in and for the area of the Azores.” United States v Tinker, supra, at page 294. However, less than ten months ago, we decided that the Commanding Officer, Tachika-wa Air Force Base, Japan, did not have the authority to promulgate general directives. United States v Keeler, supra. While the separate opinions in that case arrived at its holding by diverse reasoning, we soon gave it life in United States v Ochoa, supra, wherein the Chief Judge joined with me in holding that general orders and regulations could be issued only by major commands and defining those organizations as occupying a “substantial position in effectuating the mission of the armed services.” United States v Ochoa, supra, at page 604. See also United States v Brown, 8 USCMA 516, 25 CMR 20, wherein it was unanimously stated that Code, supra, Article 92, was not intended to grant to all inferior commanders the power to issue general orders and regulations.

The essence of our holdings in United States v Tinker, United States v Keeler, and United States v Ochoa, all supra, is, as pointed out by Judge Latimer in his separate opinions in those cases, the limiting of United States v Snyder, supra, insofar as it purports to announce that the commanders of camps, posts, and stations, are authorized to issue general orders and regulations. This is particularly apparent in United States v Keeler, supra, involving an overseas Air Base and United States v Ochoa, supra, involving a Navy Training Center — both the equivalent of an ordinary Army post. What then are the circumstances which lead my brothers to decide that Fort Huachuca differs from these installations and constitutes a “major command”? I submit that a reasonable answer to this inquiry simply cannot be found in the prepared opinion.

Initially, Judge Latimer applies negatively the indicia which we have set forth in other cases. Thus, he points out that the order emanated from a post commanded by a general officer who exercises general court-martial jurisdiction. United States v Tinker, supra; United States v Ochoa, supra. This flatly ignores, however, our holding in United States v Ochoa, supra, that the possession of general court-martial jurisdiction was not controlling. United States v Ochoa, supra, at page 604. In short, the fallacy in his reasoning is that he gives conclusive effect to what we have said was no more than a circumstance to be considered.

Finally, it is argued that Fort Hua-chuca, as the Army’s Electronic Proving Ground, occupies an important and substantial position in effectuating the mission of the Army, for it is a Class II installation directly under the “command” of the Chief Signal Officer. It is then reasoned that the installation is thus not “many steps ‘removed’ from” department level. This proposition simply ignores the realities of Army organization and gives binding effect to what constitutes no more than an administrative division of responsibilities.

It may be admitted that Fort Hua-*177chuca has been designated as a Class II installation under the jurisdiction of the Chief Signal Officer. Paragraphs II and III, Department of the Army-General Orders No. 2, January 14, 1954. An examination of pertinent directives will show, however, that the classification is of no moment here. Thus, AR 10-5, 22 May 1957, lists the Chief Signal Officer as a member of the Department of the Army technical staff. Paragraph 44a, AR 10-5, supra. With respect to his functions, the same paragraph points out:

“c. The heads of the technical staff are also heads of the technical services, in which capacity they command such troops, organization, activities, and installations as from time to time may be assigned. As chiefs of services, they perform the usual functions of command.”

Paragraph 49 of the same regulations elaborates on the foregoing with respect to the Chief Signal Officer:

“49. Chief Signal Officer. The Chief Signal Officer plans, directs, and supervises signal communications, electronic, pictorial and eryp-tologistic activities of the Army; develops communications, electronic, pictorial, and, within the established national policy, communication security systems, services, and materiel; and provides and services signal materiel, communications and communication security devices, electronic devices (including those for Army aviation and battle area surveillance), and meteorological devices (except those for which responsibility is assigned to other agencies), and related activities (except for that weather forecasting performed for the Army by the Air Force) required for the Army and, as assigned, for the Navy, Air Force, and other governmental agencies and for foreign aid programs; and administers and operates the Alaska Communications System.”

Paragraph 53 of the cited regulations further provides:

“53. Class II and class III installations and class II activities. Class II and class III installations and class II activities are under the command of the heads of certain Army Staff agencies. They perform missions and functions as assigned. See AR 10-50.”

Uncritical acceptance of the foregoing regulatory provisions might well lead to the belief that the Chief Signal Officer has in fact command responsibility for the conduct of affairs at Fort Huaehuea. However, as is frequently the case in military administration, other directives deprive the cited regulations of any real meaning and effect. Thus, AR 10-50, June 21, 1957, governs “SPECIAL COMMAND RELATIONSHIPS WITHIN CONTINENTAL UNITED STATES” and severely limits the authority of the Chief Signal Officer and other heads of Department of the Army agencies with respect to the command of Class II installations. Therein, it provides the following:

“6. Responsibilities of Zone of Interior army commanders. Zone of Interior army commanders, under the command of the Commanding General, United States Continental Army Command, will—
“e. Prescribe and enforce off-post military regulations within their respective geographical areas. In specifically designated areas in the vicinity of class II installations, local jurisdiction responsibility may be delegated by mutual agreement between the head of the Headquarters, Department of the Army agency and the Zone of Interior army commander concerned. See AR 380-430.
“g. Provide the support functions shown in figure 1 to class II installations and off-post class II activities within their geographical area commands on a common service (free) basis . . - Commanders of class II installations and off-post class II activities will be responsible to the appropriate Zone of Interior army commanders for carrying out policies and procedures of that commander in respect to all functions shown in figure 1.” [Emphasis supplied.]
Briefly stated, the “support functions *178shown in figure 1” include the general supervision of the administration of military justice, processing of claims, legal assistance functions, and the separation of all military personnel except Army hospital patients.

The basic mission assigned to Fort Huachuca is the study, testing, and development of signal operations, organizations, and equipment. AR 10-72, July 30, 1957. Although the Chief Signal Officer is apparently named the overlord of that installation, it is equally •clear that his authority is limited to the development of matters relating to .signal doctrine. Paragraph 5, AR 10-50, supra. The real jurisdiction over Fort Huachuca is exercised by the Commanding General, Sixth United States Army, in whose area it lies geographically. Paragraph 6, Appendix, AR 10-50, supra; paragraph 3/, AR 10-8, May '22, 1957. Thus, the latter controls the issuance of regulations having an effect beyond the limits of the reservation; ■supervises the administration of military justice; and provides other administrative activities. Nor is there anything unusual in this division of responsibility. It is obvious that technical training and research matters .should be controlled by an officer skilled in the branch involved. It is equally ■obvious that he should not be saddled with responsibility for the incidental ■disciplinary considerations involved in the operation of a military post. Therefore, for all practical purposes, a chain of command is established for the latter purpose which travels through the Army area commander, and the Commanding General, United States Continental Army Command, to departmental level. For matters relating to Signal Corps materiel, a technical chain of command exists directly between the Electronic Proving Ground and the Chief Signal Officer. As it is the former path which concerns itself with ■orders and regulations, I am forced to disagree with Judge Latimer’s assertion that Fort Huachuca is not many steps removed from administration by Department of the Army. United States v Ochoa, supra.

While the foregoing considerations convince me that United States v Ochoa, supra, and United States v Keeler, supra, are dispositive of the granted issue in this case, another factor is equally weighty. In United States v Bunch, 3 USCMA 186, 11 CMR 186, a unanimous Court held that a naval regulation limiting the classes of officers who might issue general orders and regulations was sufficient to deprive a commander not within those classes of any authority he might have otherwise had to promulgate that type of directive. Paragraph 6, AR 10-50, supra, in dividing the responsibilities of post administration between the respective commanders involved, expressly confers upon Army area commanders the authority to issue regulations governing off-post conduct. Thus, I find that, assuming the Commanding General, Fort Huachuca, to have had the power to issue general regulations ordering personnel to remain outside of Mexico unless they obtained special passes, such power was taken from him by the cited Army regulations. United States v Bunch, supra. Accordingly, I believe that the author Judge errs when he states that no authority has acted to restrict the authority of the Commanding General concerned. In consequence, I would find no authority in the Commanding General, Fort Huachuca, to issue the order in question.

In commenting upon the views which I have expressed concerning the applicability of United States v Bunch, supra, in light of the quoted provision of paragraph 6, AR 10-50, supra, the author of the principal opinion suggests that I overlook the authorization for delegation of responsibility for the issuance of off-post regulations by mutual agreement between the Army area commander and the commander of a Class II installation. He seems to believe that the failure of the accused to contest the authority to issue the order below this level and the presumption of regularity require us either to resort to “sheer speculation” or to conclude that authority existed to issue the general order in question. I am unaware of any authority for the position that the accused must at the trial or inter*179mediate appellate level assert a lack of authority in a commander concerned in order to maintain a contention before this Court. Indeed, such an assertion is no more than a contention that the specification involved does not allege an offense, and that argument may be presented before this Court for the first time. United States v Fout, 3 USCMA 565, 13 CMR 121; United States v Karl, 3 USCMA 427, 12 CMR 183. Moreover, I am unaware of any presumption that a commander acts within the scope of his authority in issuing orders and regulations. Such a position would give controlling significance to the allegation of an ordinary order as a violation of Code, supra, Article 92(1). Cf. United States v Bunch, supra, where a commander’s order was in direct violation of naval regulations, a situation which my brothers seem to think unusual.

Finally, it is asserted that the Commanding General, Fort Huachuca, has authority to curtail visits to Mexico in view of the provisions of Army Regulations 630-5, November 5, 1957. Those regulations authorize varying classes of commanders, including those at posts, camps, and stations, to countersign passes for visits to foreign countries. Authority to countersign passes, however, is a far cry from authority to issue a general order requiring such passes to be countersigned. It is the latter proposition with which we are now concerned rather than whether it was proper for any level of command to insist upon limitations upon the authority of the accused to travel beyond the borders of the United States.

Summed up, it is my conclusion that our decisions in United States v Keeler and United States v Ochoa, both supra, effectively reversed the earlier holding in United States v Snyder, supra, to the effect that the commander of an ordinary post, camp, or station may issue lawful general orders and regulations. The authorities developed in those cases make it clear that it was not the intention of Congress in enacting Code, supra, Article 92, to authorize promulgation of such important directives at that level. United States v Brown, supra. Moreover, the majority ignores the effect of AR 10-50, supra, and our opinion in United States v Bunch, supra. In short, an ad hoc determination is made that the Commanding General, Fort Huachuca, Arizona, is authorized to issue these directives.

I would reverse accused’s conviction of violation of a lawful general order, and return the record of trial to the board of review for reassessment of sentence on the remaining finding of guilty.