United States v. Walter

Ferguson, Judge

(dissenting):

I dissent.

In their analysis of the propriety of charging an offense under Article 134, Uniform Code of Military Justice, 10 USC § 934, which offense is at the same time proscribed by a general order or regulation within the purview of Article 92, Code, supra, 10 USC § 892, my brothers have neglected to consider the requirements of paragraph 27, Manual for Courts-Martial, United States, 1969 (Revised edition), as it pertains to the question before us. Paragraph 27, Manual, supra, provides in part:

“. . . When an offense is specifically defined in a particular punitive article, it ordinarily should be charged under that article rather than under Article 134, the general article.”

Article 92 is one of the punitive articles of the Code (Chapter XXVIII —Punitive Articles, Manual, supra) and regulations promulgated thereunder must be considered, when charging a violation of the Code, before recourse may be had to the use of Article 134. What other meaning can there be to paragraph 27, Manual, supra, for there is hardly a violation of the law which cannot in some way be viewed as conduct to the prejudice of good order and discipline or conduct of a nature to bring discredit upon the armed forces. Paragraph 2136, Manual, supra. As this Court stated in United States v Hallet, 4 USCMA 378, 382, 15 CMR 378 (1954):

“. . . Article 134 was not intended by Congress to apply in areas otherwise the subject of specific attention in Articles of the Uniform Code.”

In enacting Article 92 of the Code, the Congress has granted to the military the power to specify certain conduct as being criminal in nature and punishable by confinement at hard labor and other penalties. As my brothers concede, “an order or regulation has, under Article 92, the force of law.” Regarding Article 92(1), paragraph 171a, Manual, supra, states:

“. . . A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.”

My brothers hold that the accused is subject to confinement at hard labor for five years, rather than the two years maximum imposable for a violation of Article 92(1), Code, supra, because five years is the punishment provided under the United States Code for one who wrongfully sells lysergic acid diethylamide. See generally, 21 USC § 321, et seq. However, the specification in this case does not even refer to the Federal statute,1 *373and I am certain that had the Federal statute been pleaded we would have looked to the Article 92 offense for the appropriate punishment. Court-martial punishment is based upon violations of the Code and cannot exceed the limits prescribed by military law for the particular misconduct. United States v Middleton, 12 USCMA 54, 30 CMR 54 (1960). Cf. United States v White, 12 USCMA 599, 31 CMR 185 (1962).

In Middleton, the accused was charged under Article 134 with violating Title 18, United States Code, section 1001, by knowingly submitting a false efficiency report in a matter within the jurisdiction of the Department of the Army. Section 1001 authorized confinement for five years, but that penalty was held inapplicable on the ground that the conduct prohibited thereby was closely related to that proscribed by Article 107, Code, supra, 10 USC § 907 (false official statements), which authorized confinement at hard labor for only one year.

In this case we need not even search for proscribed conduct that is closely related to the Federal statute, for change No. 4 to AR 600-50, August 18, 1969, was promulgated, under the authority of Article 92, Code, supra, “to reflect the 1968 amendment to 21 USC 321 (PL 90-639, 24 Oct 68) which specifically mentions LSD (lysergic acid diethylamide).” It is clear, by virtue of this enactment, that the Army has made applicable to its members the specific provisions of the Federal statute. See change No. 2 to AR 600-50, May 15, 1968. I agree with defense counsel at trial that the penalty for a violation of Article 92 (1) (two years) should prevail over that prescribed by the United States Code (five years). United States v Middleton, supra.

The majority’s discussion on the need for uniform application among the services is not, in my opinion, controlling in this case. AR 600-50 is entitled “STANDARDS OF CONDUCT FOR DEPARTMENT OF THE ARMY PERSONNEL.” The regulation is an implementation of the following documents: (1) Executive Order 11222 of May 8, 1965, prescribing standards of conduct for Government officers and employees; (2) Department of Defense Directive 5500.7, dated March 22, 1966; and (3) the Civil Service Commission Regulation of October 1, 1965. It is in consonance with the Code of Ethics for Government Service contained in House Concurrent Resolution 175, 85th Congress, which applies to all Government personnel. As explained in the regulation, the Department of Defense Directive applies to “all active duty officers and enlisted members of the Army, Navy, Air Force, and Marine Corps.” (Ibid., at page 3.) In such circumstances, it is not unreasonable to believe that each of the services has implemented this Directive in a similar manner.

Since I believe that the maximum imposable confinement at hard labor for the single offense charged against the accused (the wrongful sale of lysergic acid diethylamide) is two years and not five as held by the military judge, I would reverse the decision of the Court of Military Review and direct that a rehearing on sentence may be ordered.

Violations of the United States Code are cognizable in military law, as violations of Article 134, Uniform Code of Military Justice, 10 USC § 934, if the offense is not otherwise mentioned in the Code.