27 M.J. 692 | U.S. Navy-Marine Corps Court of Military Review | 1988
Pursuant to his pleas, appellant was convicted by a General Court-Martial (judge alone) of three specifications of missing movement through design and two specifications of disobeying an order from a non-commissioned officer in violation of Articles 87 and 91, respectively, of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 887, 891. He was sentenced to confinement for seven months, forfeiture of $200.00 pay per month for seven months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence as adjudged except to suspend for twelve months all confinement in excess of six months, and forfeitures in excess of $200.00 pay per month for six months, as required by virtue of a pretrial agreement.
The first issue presented is whether appellant can properly be convicted of missing three movements under the facts of this case. Appellant contends that the charging authority and the military judge in this case “stretched the meaning of the word ‘unit’ to an unreasonable degree,” and he argues that it is the movement of the squadron as a whole that is contemplated by Article 87, UCMJ. We disagree. Paragraph 11(c)(2)(a) of Part IV of the Manual for Courts-Martial, United States, 1984 (M.C.M.) provides in pertinent part that
[t]he word “unit” is not limited to any specific technical category such as those listed in a table of organization and equipment, but also includes units which are created before the movement with the intention that they have organizational continuity upon arrival at the destination regardless of their technical designation and units intended to be disbanded upon arrival at their destination.
In this case, Helicopter Squadron 264 was split into three separate “units” for purposes of deploying onto the USS NASSAU. Each unit was created for the purposes of the deployment, each deployed at a different time and each had different missions and responsibilities; the advance party was responsible for preparing the ship to receive the squadron aircraft, the main body boarded the ground personnel, and the fly-on unit was responsible for boarding the aircraft and aviation personnel. While it is true that the end result of the three separate troop deployments was the movement of appellant’s squadron as a whole onto the USS NASSAU, that fact does not rob the commanding officer’s tactical designation of the three separate units of its inherent legal significance. Importantly, this is recognized in the explanation to Article 87 in the M.C.M. which specifically foresees and provides for the splitting of traditional organizational units into different and perhaps smaller ones in order to accomodate the realities of military warfare. See also United States v. Johnson, 3 U.S.C.M.A. 174, 11 C.M.R. 174 (1953). To accept the appellant’s argument in this case would be to ignore the military reality that the ability to split forces can be crucial to the success or failure of a mission, and would be contrary to the clear intent of Article 87 that the term “unit” be flexible enough to embrace differing combat situations. We will affirm three separate missing movements through design.
Appellant’s second assignment of error raises the issue of whether his convic
In Pettersen, the Court of Military Appeals held that an accused who was in an unauthorized absence status when he refused an order to return to his duty station, could be convicted and punished separately for both disobeying the order and unauthorized absence where there was no evidence to show that the order was issued for the purpose of increasing the criminal liability of the accused’s conduct. 17 M.J. at 72. While the Court noted its concern about using orders as a vehicle to increase punishment for failure to perform normal duties, it stressed that where the accused’s direct defiance of the order “strikes at the very essence of military order and discipline,” the defiance of the order becomes the “ultimate offense” which is separately chargeable and punishable from the nonperformance of the act which forms the basis of the order. 17 M.J. at 72. Thus, military commanders are able to issue orders to lift otherwise routine duties “above the common ruck” where the issuance of the order is motivated by the desire to maintain command discipline rather than the desire to increase the potential punishment for failing to perform the act ordered. United States v. Landwehr, 18 M.J. 355 (C.M.A.1984); United States v. Pettersen, supra; United States v. Loos, 4 U.S.C.M.A. 478, 16 C.M.R. 52 (1954); United States v. Caton, 23 M.J. 691 (A.F.C.M.R.1986).
Under the circumstances of this case, we agree with the appellant that the convictions under Articles 87 and 91, are multiplicious for both findings and sentencing purposes. Implicit in the decision in Pettersen and its progeny is the thought that a preexisting duty can be elevated above a routine category by the issuance of an order to perform that duty where the order is not motivated by a desire to increase punishment. As the Court noted in Pettersen, “the Manual contemplates the giving of an order which relates to a military duty presumably already imposed by some other source of authority, and which is given under circumstances which negate the motive of increasing punishment for not performing the pre-existing duty.” 17 M.J. at 71. In this case, the orders given to the appellant by Staff Sergeant Gamble did not relate to a pre-existing duty; rather, the orders themselves created the duty to move. Upon missing the movement of the advance party, the appellant, while remaining a member of Helicopter Squadron 264, did not have a specific duty to move with either the main body or the fly-on unit until it was explained to him that he was being assigned to and ordered to move with the main body and, later, with the fly-on unit. Unlike the appellant in Pettersen, Private First Class Bisser’s duty to make the main body and eventually, the fly-on movement
Accordingly, the findings of guilty to Charge II and both of its specifications are set aside. Charge II and the specifications thereunder are dismissed. The remaining findings of guilty to Charge I and its specifications are affirmed. Upon reassessment, the original sentence as approved on review below is affirmed. United States v. Sales, 22 M.J. 305 (C.M.A.1986).
. This conclusion is supported by our resolution of the appellant’s first assignment of error. Because the advance party, the main body, and the fly-on segments of the deployment all constituted separate units for the purposes of Article 87, UCMJ, it is necessary, in order to support a prosecution, that the appellant have actual knowledge of his duty to move with each individual unit. This did not happen until appellant was assigned to and ordered to move with the particular unit.