United States v. Dillard

FULTON, Judge,

dissenting:

I dissent and would hold that the maximum confinement to which the appellant could have been subjected for his drug offense was two years.

As the majority opinion observes, the Army no longer has any regulation enabling heroin offenses (or, for that matter, other offenses involving either narcotics or marihuana) to be charged as violations of Article 92.1 Those offenses uniformly are to be charged as violations of Article 134 of the Code,2 for which the President has authorized greater punishment in the form of longer terms of confinement.3 It appears, however, that members of the Navy, Marine Corps, or Coast Guard involved with the same drugs arc still subject to regulations that are enforceable under Article 92.4 Therefore, although the appellant supposedly risked confinement for ten years, for *582identical misconduct a member of the Naval service could be confined only for two years, either because of being charged under Article 92 or because punishment under Article 134 has been limited by United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976).

Unlike the situation present in Courtney, the possible disparity in punishment no longer stems from any unbridled discretion exercisable by individual convening authorities.5 Even so, in United States v. Jackson, 3 M.J. 101 (C.M.A.1977), the Court of Military Appeals has further explained and apparently broadened the rationale for its views as to equal protection.

In Courtney, the Court spoke of “the effect of enunciated statutory guidance which highlights a difference in treatment among various classes of individuals,” then said—

[H]ere it is the utter lack of such guidance coupled with the existence of two statutes which because of the table of maximum penalties punish virtually identical conduct in different ways that violates the Fifth Amendment.

24 U.S.C.M.A. at 282, 51 C.M.R. at 798, 1 M.J. at 440 (emphasis mine). In Jackson, adding its own emphasis, the Court said:

[T]he absence of statutory or Manual guidance to insure equal treatment of all service-members coupled with the existence of two statutes which punish virtually identical conduct in different ways renders the use of a more severe penalty for Article 134 drug offenses than that prescribed for similar violations of drug regulations under Article 92 unconstitutional.

3 M.J. at 102 (emphasis in original) (footnotes omitted).

Turning its attention to the Army’s newly revised regulation, the Court then said:

Through amendment of Army Regulation 600-50, the government suggests that equal treatment of Army personnel for drug offenses now is assured. The Uniform Code of Military Justice was designed to afford equal treatment for servicepersons in all branches of the armed forces. Consequently, regulatory amendment of the sort proposed [sic] does not necessarily eliminate the equal protection infirmity addressed in Courtney.

Id. at 102 n.2. Although that is obiter dictum, I believe that we must follow it.6 As we have seen, lacking similar regulatory amendments applying to other services, the equal protection infirmity (viz., a punishment differential) as perceived by the Court of Military Appeals remains. Complete uniformity among the services was not an objective of the Uniform Code, replacement of the Articles of War and the Articles for the Government of the Navy with a single code being regarded as quite sufficient for that purpose.7 Nevertheless, I do not be*583lieve that differences such as the one involved in this case were contemplated.

I have not overlooked the potentially broad impact of the dictum last-quoted above. As the dissenting judge in Jackson observed:

The remarks in footnote 2 seem to imply that equal protection as applied to the military, either by the Constitution or the “design” of the Uniform Code, requires that regulations of conduct, violations of which can be charged as violations of Article 92 . . ., must be the same for every service. If that is the import of the remarks, I disagree.

3 M.J. at 104 (Cook, J., dissenting). Were I to believe that to be the intended import, I would disagree too. A holding that one armed force (or installation or command within an armed force) may not give punitive effect to a particular regulatory requirement or prohibition unless each of the others does likewise would be unwarranted. As I understand the Court of Military Appeals majority, the rule is limited solely to the question of maximum punishment.8

I find it unnecessary in this opinion to discuss the further questions that would be raised were this to be the majority opinion in the case.9

Senior Judges JONES and COOK, and Judges DRIBBEN and FELDER concur in the dissent.

. Article 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892.

. Article 134, UCMJ, 10 U.S.C. § 934.

. Manual for Courts-Martial, United States, 1969 (Revised edition), Table of Maximum Punishments, Section A, at 25-12, 25-15.

. See Naval Speedletter, JAG:203:RGK:dm, Ser: 203/38076, 7 July 1976. Government counsel suggest that the Navy and Coast Guard regulations in question do not meet the standards of notice and clarity required as a basis for criminal prosecution. As apparently do the majority, I reject that contention.

. Convening authorities of any service may, however, affect the maximum punishment for an offense through the choice as to the level of court to which to refer charges.

. Whatever may be said of the wisdom and effect of the dictum, the fact remains that the Court of Military Appeals seems to have chosen it as one means of exercising supervision over the lower military courts and influencing the administration and development of military law. Compare United States v. Elmore, 24 U.S.C.M.A. 81, 82-83, 51 C.M.R. 254, 255-56, 1 M.J. 262, 263-64 (1976) (Fletcher, C.J., concurring), with United States v. Green, 24 U.S.C.M.A. 299, 302, 52 C.M.R. 10, 13, 1 M.J. 453, 455 (1976). For other examples, see United States v. Palenius, 25 U.S.C.M.A. 222, 229-31, 54 C.M.R. 549, 556-57, 2 M.J. 86, 91-92 (1977); United States v. Hughes, 24 U.S.C.M.A. 169, 170 n.3, 51 C.M.R. 388, 389 n.3, 1 M.J. 346, 347 (1976). Concerning the controlling effect of the higher court’s decisions, see United States v. Heflin, 23 U.S.C.M.A. 505, 506 n.6, 50 C.M.R. 644, 645 n.6, 1 M.J. 131, 132 (1975).

. Although a greater measure of uniformity than then existed was one of the goals, other problems—such as command control—were uppermost in the minds of those who drafted and those who enacted the Code. See, e. g., Morgan, The Background of the Uniform Code of Military Justice, 29 Mil.L.Rev. 17 (1965). Express provisions of the Code permit some differences among services, even as to punishment. See Article 15(a), UCMJ, 10 U.S.C. § 815. Other differences also have been regarded as permissible, such as the Army’s earlier unwillingness to permit special courts-martial to adjudge bad-conduct discharges. Aycock and Wurfel, Military Law under the Uniform Code of Military Justice 84 (1955).

. Cf. Manual for Courts-Martial, supra n.3, Table of Maximum Punishments, Section A, at 25-12 n.5(1). As a practical matter, the application of the rule may be limited to drug cases, which seem to be spawning their share of departures from previously established doctrines. See, e. g., United States v. Courtney, supra; United States v. Thomas, 24 U.S.C.M.A. 228, 51 C.M.R. 607, 1 M.J. 397 (1976); United States v. Hughes, 24 U.S.C.M.A. 169, 51 C.M.R. 388, 1 M.J. 346 (1976).

. A holding that the maximum punishment included only two years’ confinement instead of ten would raise the question of providency of the guilty plea and, if provident, the impact the sentence stemming from any misunderstanding by sentencing and approving authorities.