United States v. Roach

BRIDGMAN, Judge,

(concurring):

I agree with the results reached by Judge Barry that the order not to drink was illegal, however I reach this result without consideration of the fact that the accused was a diagnosed alcoholic; the existing Coast Guard policies concerning the disposition of members who are alcoholics; or the command’s treatment of the accused in relation to his disease. In my view, the order given in this case simply did not have sufficient nexus to any military duty to be valid, despite the statements made by the accused during the providency inquiry and the admittedly speculative rationale of the dissent.

Although not patently illegal, courts have carefully scrutinized an order restricting an individual’s privilege to consume alcoholic beverages. I start from the premise that an unrestricted order not to drink would be regarded as an improper infringement on this privilege, and have attempted to discern some means of identifying when a limitation on drinking is a valid order, or at least mark some of the boundaries of such an order. Limiting the duration of the order is, apparently, not of itself sufficient (United States v. Wahl, 4 C.M.R. 767 (A.B.R.1952)), nor is imposing the order to prevent repeated criminal activity while under the influence (United States v. Wilson, 12 U.S.C.M.A. 165, 30 C.M.R. 165 (1961). Even an order purporting to be limited to effects during duty hours may be so broad and standardless as to be unenforceable (United States v. Green, 22 M.J. 711 (A.C.M.R.1986)). Unfortunately, there is a dearth of reported cases discussing the circumstances under which an order not to drink is valid.

The discussion of lawfulness in Paragraphs 14e(2)(a) and 16c(l)(c), Manual for Courts-Martial, 1984 (MCM) is not particularly helpful. Although not specifically stating that the order is unlawful, the “Note” following paragraph 16e(2) MCM states that punishment under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 does not apply “if, in the absence of the order or regulation ... the accused would, on the same facts be subject to conviction for another specific offense.” A perusal of the established offenses involving the abuse of alcohol is enlightening. These offenses include: Drunk on duty (Article 112, Uniform Code of Military Justice, 10 U.S.C. § 912); Drunk on board ship or in some other place (Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, Paragraph 73, Manual for Courts-Martial); and Incapacitation for performance of duties through previous wrongful indulgence (Article 134, Uniform Code of Military Justice, Paragraph 76, Manual for Courts-Martial). None of these offenses are committed by the simple act of drinking. Drinking with a prisoner, while in charge of the prisoner, is an offense, regardless of the amount consumed (Article 134, Uniform Code of Military Justice, Paragraph 74, Manual for Courts-Martial) and United States v. Wahl, supra, recognized that drinking while on duty may be prohibited, but the remaining offenses relate to the consequences of drinking, not the simple act of drinking.

If lawful, the order in question here was violated at the first sip of any beverage containing alcohol, without regard to the impact on the physical condition of the accused, his subsequent conduct, or his ability to perform military duties. Arguably, if the accused purchased a beer with the intent to drink it, he could be charged under Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880 in an attempt to violate the order. I am unwilling to attach legal significance to the determination that the accused was an alcoholic in order to distinguish this case from United States v. Wilson, supra, and therefore conclude that the admonition not to drink was not a law*870ful order that would support a conviction under Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. The administrative consequences of consuming alcohol in violation of Article 20-C-7c(2), Coast Guard Personnel Manual, COMDTINST M1000.6, is not a matter within the purview of this Court.

As previously noted by Judge Baum, this Court directed that briefs be submitted on the issue of whether the accused’s actions constituted the offense of hazarding a vessel, in violation of Article 110, Uniform Code of Military Justice. My concern was that, following a long history of this offense being related to the navigation of a vessel and persons responsible for the safe navigation of a vessel, recent cases appeared to have expanded the scope of this capital offense. The issue has been well briefed. I concur with Judge Baum’s conclusion that the acts committed by the accused in this case constitute an offense under Article 110 but am compelled to urge the reexamination of this issue by those exercising legislative authority.

Article 110, Uniform Code of Military Justice is applicable to “Any person subject to this chapter____” . While the term “hazards” requires further explication, there is no contention that the acts of the accused in this case did not put the vessel “in danger of loss or injury” (Paragraph 34c(l) Manual for Courts-Martial, 1984). Where the language of the statute conveys a clear and definite meaning, a court has no right to search for a different or limited meaning. United States v. Graham, 16 M.J. 460 (C.M.A.1983). In any event, the legislative history concerning Article 110 is so sparse that it sheds little light on the intent of the legislature and, as stated by Judge Baum, (page 14) this offense may not have received the attention given crimes considered to have more general application. It would be convenient to simply stop at this point, and give no further consideration to the question of whether Article 110 should apply to the full extent of its terms, however, I believe the consequences of so expanding a capital offense warrant further discussion.

It seems clear that Article 110, Uniform Code of Military Justice is an amalgam of former Articles for the Government of the Navy (A.G.N.) 4(10) and 8(11) and the proposed A.G.N. 8(6) and 9(21). United States v. Adams, 42 C.M.R. 911 (N.M.C.M.R.1970). Prior to Adams, there are three Coast Guard and two Navy reported cases concerning Article 110 involving negligent hazarding of a vessel by someone responsible for the vessel’s navigation: United States v. Day, 23 C.M.R. 651 (N.B.R.) 1957; United States v. Sievert, 29 C.M.R. 657 (N.B.R.1959); United States v. MacLane, 32 C.M.R. 732 (C.G.B.R.1962); United States v. Klein, 35 C.M.R. 686 (C.G.C.M.S. 21722 1964); and United States v. Kobler, 37 C.M.R. 763 (C.G.B.R.1966). Since 1970, in addition to Adams, supra, there have been several Navy cases where an accused was found to have willfully hazarded a vessel by causing damage or injury to the vessel: United States v. Drake, 10 M.J. 505 (N.M.C.M.R.1980); United States v. Tusing, 12 M.J. 608 (N.M.C.M.R.1981), aff’d in part, rev’d in part on other grounds, 13 M.J. 98 (C.M.A.1982); United States v. Buckroth, 12 M.J. 697 (N.M.C.M.R.1981), aff’d in part, rev’d in part on other grounds, 13 M.J. 108 (C.M.A.1982); and United States v. Julien, 17 M.J. 427 (C.M.A.1984). These cases are in accord with the views expressed by the drafters of the Manual for Courts Martial, 1951, “Cases of hazarding a vessel, though involving actual damage or destruction, should be pleaded under Article 110 as the more serious offense rather than under Article 108.” Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, pg 269, although arguably at variance with the apparent basis for that view, “The high standard of strict responsibility for the safety of a ship and her crew that is imposed upon naval officers----” Id.

The problem with a literal interpretation of Article 110, Uniform Code of Military Justice, is that it is virtually boundless. Although derived from the A.G.N. and the traditional standards imposed on naval officers, it now extends to all members of the armed forces, regardless of branch of service or rank. See United States v. Strea*871tor, SpCM 14969, (A.C.M.R. unpub., 12 September 1980).3 Article 110 is not limited to damage to, or loss of, a warship, with living accomodations in proximity to flamables, chemicals, and explosives and the other concerns expressed by Judges Josephson and Burgess, (page 21). Article 110 expressly applies to “any vessel of the armed forces” and, since 1 U.S.C. § 3 defines “vessel” as a “watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water,” there is no limit as to size or purpose of the vessel. In view of United States v. Simonds, 20 M.J. 279 (C.M.A.1985), Article 110 apparently applies to hazarding a canoe owned by a military recreational facility supported by appropriated funds. A Navy court has stated, in dicta, that Article 110 could apply to “a military air- or spacecraft” (See United States v. Buckroth, supra, Fn. 1 at 701). Should the occasion arise, I would hope a court would carefully consider the design of the vehicle and its capability of providing transportation on water. Fortunately, seaplanes and amphibian aircraft are no longer prevalent in the armed forces, but while waterborne these aircraft are considered vessels, and a member of the armed forces who willfully damages such an aircraft could conceivably be charged with a capital offense under Article 110. By comparison, those wishing to prosecute the miscreant who willfully damages a RF-4, F-15, or similar aircraft must apparently settle for the ten years maximum confinement imposable for sabotage under 18 U.S.C. 2155. United States v. Johnson, 24 M.J. 101 (C.M.A.1987); United States v. Ortiz, 24 M.J. 164 (C.M.A.1987).

Another problem caused by the merger of A.G.N. 4(10) and 8(11) into Article 110, Uniform Code of Military Justice concerns the apparent disappearance of the requirement under A.G.N. 8(11), which was the capital offense, that the intentional damage to a vessel or its equipment had to be such “whereby the safety of the vessel is hazarded or the lives of the crew exposed to danger.” [A.G.N. 8(11).] Paragraph 34c(l), Manual for Courts-Martial, 1984 states “Actual damage to ... a vessel ... by any other cause, is conclusive evidence that the vessel was hazarded____” (emphasis added). The uncertainty in this area is best illustrated by United States v. Busing, supra, where the court noted with approval the military judge’s finding that “electrical shock is a hazard ... only to individuals, and that is not the charge.” but apparently relied on the finding of “a danger of fire”, rather than simply the actual damage, to uphold the conviction under Article 110. 12 M.J. at 609.

In my opinion, the greatest danger in an overbroad expansion of Article 110, Uniform Code of Military Justice is the potential for overbearing use of charges of willful hazarding by zealous prosecutors who are advising commands on the preferral of charges.4 The incentive of the accused to plea bargain, when faced with a maximum punishment of death or life imprisonment, may lead to inappropriate pleas. Perhaps it was a factor in this case, where the defense rejected the military judge’s invitation to challenge the legality of the order not to drink, as discussed fully in the opinion of Judge Barry, (pg. 864) and the separate opinion of Judges Josephson and Burgess (pg. 874). This particular aspect could be ameliorated in a manner similar to that utilized for offenses under Article 92, *872Uniform Code of Military Justice. Paragraph 16e, Manual for Courts-Martial, 1984 indicates that the maximum punishment set forth for Article 92 offenses does not apply where the facts support conviction for another specific offense carrying a lesser punishment. Reserving the maximum punishment of death or life imprisonment for those Article 110 offenses involving the navigation of the vessel, while still leaving the hot tempered boater who breaks a paddle or deep-sixes a recalcitrant outboard motor to act at his peril, would remove much of the incentive to reach for the broadest interpretation of Article 110, and foster the fundamental principle that criminal statutes be construed narrowly. In this regard, it is interesting to note that the drafters of Manual for Courts-Martial, 1984, although calling attention to United States v. Adams, supra, in the Analysis of Paragraph 34 (Manual for Courts-Martial, 1984, pg A21-93) did not revise the explanation of “hazard” or “suffer” in Paragraph 34c to include any examples not related to navigation of a vessel.

Under Article 66(c), Uniform Code of Military Justice, we may affirm only a sentence that we determine is appropriate “on the basis of the entire record.” On that basis, I concur with the action taken on the findings, the reassessment of the sentence, and the action taken on the sentence upon reassessment.

. Among other offenses, the accused, a Private (E-2) was convicted of a violation of Article 110 for briefly leaving the wheelhouse of an Army vessel while on watch as helmsman. The vessel was underway at sea on automatic pilot. On review, it was held that the accused’s actions did not hazard the vessel.

. See United States v. Giusti, 22 M.J. 733 (C.G.C.M.R.1986). The record of trial and associated documents indicate that seven specifications of willfully hazarding a vessel, under Article 110, Uniform Code of Military Justice, were initially referred to trial as capital offenses, along with corresponding specifications under Article 92, Uniform Code of Military Justice alleging dereliction of duty and additional corresponding specifications alleging use of marijuana, also under Article 92. The charges arose out of smoking marijuana while coxwain of a 41 foot boat underway. The accused was acquitted of the hazarding offenses. The dereliction of duty and use of marijuana offenses were considered multiplicious for sentencing at trial and were subsequently held to be multiplicious for findings.