United States v. Graham

DUNBAR, Senior Judge

(concurring):

With respect to specifications 1, 2, 3, 4, 5, 6, 11 and 12 of Charge I, certain jurisdictional facts were added to the original charge sheet, in the form of footnotes, after the charges had been signed and sworn to. At trial, the military judge concluded that the supplementary jurisdictional footnote information was surplusage and did nothing to add or detract from the charge. The staff judge advocate in his review agreed; but, under the mistaken belief that the surplusage should have been sworn to, persuaded the convening authority to approve the findings and at the same time to disapprove the surplusage jurisdictional information.

Despite his pleas of guilty, appellant requests a rehearing, contending that he was tried, after objection, on unsworn charges, citing Article 39(a), Uniform Code of Military Justice, 10 U.S.C. § 839(a), and paragraph 29e, Manual for Courts-Martial, 1969 (Rev.). He also advances the theory that, when the convening authority disapproved the “surplus” language, he in effect disapproved the findings to the specifications because the jurisdictional surplusage was an integral part of the specifications as required by United States v. Alef, 3 M.J. 414 (C.M.A.1977).

Nevertheless, the Government, in rebuttal to appellant’s assertions, relies on United States v. Lewis, 5 M.J. 712 (A.C.M.R. 1978), pet. denied, 6 M.J. 294 (1979), in which the Army Court of Military Review stated:

Assuming, arguendo, that the charges were altered to add the Alef language after they were served on the appellant, still we find no error. Such alterations amount to amendments of the specifications. The United States Court of Military Appeals stated in United States v. Krutsinger, 15 U.S.C.M.A. 235, 237, 35 C.M.R. 207, 209 (1965):
A specification can be amended any time before findings. United States v. Squirrell, 2 U.S.C.M.A. 146, 7 C.M.R. 22; see also Rule 7(e), Federal Rules of Criminal Procedure. But the scope of amendment is limited. Broadly, the Manual for Courts-Martial, United States, 1951, provides that the amendment cannot “include any person, offense, or matter not fairly included in the charges as preferred.” Id., paragraphs 33d and 35a.5 Judicial decision
has provided further specificity to the limitation. It is now well-settled that an amendment cannot result in: (1) adifferent or more serious offense; (2) in raising a substantial question as to whether prosecution is barred by the statute of limitations; or, (3) in misleading the accused. United States v. Johnson, 12 U.S.C.M.A. 710, 31 C.M.R. 296.

Id. at 714 (emphasis added).

The government states that none of the prohibitions enumerated in Krutsinger are present in the present case. I concur. This Court has previously commented on the heterogeneous aggregation of pleading information and footnote guidance contained in Alef which had the effect of supplanting and rendering chaotic the established pleading practices of the military justice system. *561This case is surely another example of the problems set in motion by the Alef decision. Nonetheless, as the Government points out, the avowed purpose of Alef was to satisfy through pleadings or a “bill of particulars” the lack of notice of jurisdiction to an accused perceived in military pleadings. We know of no requirement that a bill of particulars would have to be in the form of a sworn document. Bills of particulars, as such, are foreign to military pleading procedures.

Logically, therefore, the addendum in this case was tantamount to a bill of particulars as envisioned by the Court of Military Appeals and satisfactorily put the accused on notice regarding jurisdictional facts, regardless of whether the addendum was sworn to before trial or disapproved erroneously by the convening authority after trial. I find, therefore, that the charges were properly drafted and the surplusage addendum information satisfactorily served to clear up any possible issues as to jurisdiction.

Appellant also contends that his court-martial lacked jurisdiction over specifications 1, 2, 3, 4, 5, 6, 11 and 12 of Charge I and the recited portions of Charge II. The specifications alluded to are of two categories; that appellant smoked marijuana with enlisted men away from the ship without previously planning to do so, and, that additional similar sessions occurred at his apartment with enlisted men at his express invitation. Appellant claims these alleged offenses are not triable by court-martial since they occurred off-base during non-duty hours. The Government’s brief directs our attention to the Court of Military Appeals’ decision in United States v. Conn, 6 M.J. 351, 353 (C.M.A.1979). Therein, it was stated:

A second theory proffered by the Government on appeal attempts to satisfy the jurisdictional holding of United States v. Saulter, supra. The Government counsel argues that the appellant’s on-duty status as his unit’s executive officer enabled him to form “military friendships” with* service members which precipitated his trip to New York and occasioned the commission of the crime charged in the presence of the above-mentioned service members. Such a theory, though on its face attractive, fails to embrace a sufficient modicum of specificity to meet the standards set out in Rel-ford. See United States v. Wilson, 2 M.J. 24, 26 n.2 (C.M.A.1976). Moreover, the stipulations of fact contained in the record of trial do not clearly establish that at the time of this particular offense the appellant had not already blended into the civilian community or that the criminal intent to commit this particular act had been previously formed on-base or during the performance of his duties. See United States v. McCarthy, 2 M.J. 26, 29 (C.M.A.1976). Accordingly, the argument is found without merit.

(Emphasis supplied.).

The above language of the High Court seems to imply that a military officer can “blend” into the civilian community during his off-duty hours and thereby immunize himself from his military responsibilities. I believe this Court should take forceful exception to such a fanciful and imaginative rationalization and at this time reaffirm the traditional military position that an officer of the United States Armed Forces is on duty 24 hours a day as far as his inherent military responsibilities are concerned; and, a “commissioned officer’s” conscious participation in off-base marijuana sessions with known enlisted members of his command, in flagrant violations of service regulations, is service connected as a matter of law. I see no reason to enter into an extended analysis of civilian and military jurisdictional opinions to reach or support such an obvious legal conclusion.

In view of the foregoing, I concur with the majority in affirming the findings and sentence as approved below.

The same citations are applicable in the current Manual for Courts-Martial, United States, 1969 (Revised edition).