Opinion of the Court
This is a companion case to United States v Daniels,
Appellate defense counsel and the amicus curiae contend that the offenses of which the accused now stands convicted are not lesser included within the original charge. The contention is predicated upon two separate grounds.
First, they maintain that section 2387 preempts the entire field of subversive declarations so that no charge can be laid and no conviction can be had for related conduct to the prejudice of good order and- discipline, in violation of Article 134. See United States v Norris,
Military law recognized the making of a disloyal statement as conduct to the prejudice of good order and discipline long before the enactment of section 2387, and its predecessor, the Espionage Act of 1917. See Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 728. It also recognized the independent nature of the military offense subsequent to the Espionage Act of 1917. United States v Poli,
The second aspect of the contention is that as a matter of law the offense found is not lesser included within that charged. Traditionally, this Court has worn an “outsize pair of spectacles in viewing the problem of lesser included offenses.” United States v McVey,
For convenient comparison of the offenses, we have arranged the essential elements and the allegations in separate columns:
Specification 1 (Section 2387)
Disloyal Statement (Article 134)
1. At stated time and place, the accused,
1. At stated time and place, the accused,
2. With the intent to interfere with, impair, or influence the loyalty, or morale, or discipline of Private C. E. Jones,
2. With design to promote disloyalty or disaffection among the troops,
3. Advised, counseled, urged or caused or attempted to cause insubordination, disloyalty, or refusal of duty by Private Jones by making statements to Jones as follows: (a) “Why should the black man go to Vietnam and fight the white man’s war and then come back and have to fight the white man”; (b) “That he . , . was not going to fight in Vietnam and neither should Private JONES”; and (c) “That Private JONES should rA~uest mast of the company comman..; and tell the CO that he, Private JONES, would not go to Vietnam,”
3.Publicly made certain statements which are disloyal to the United States, and
Disloyal Statement (Article 134)
4. Which statements had a natural tendency to produce, or presented a clear and present danger that they would result in, interference with or impairment of the loyalty, morale, or discipline of Jones.
4. Which constituted conduct to the prejudice of good order and discipline or to the discredit of the armed forces.
A difference is apparent in the kind of conduct each offense prohibits. The conduct alleged in the specification is the effort to. inculcate insubordination, disloyalty, or refusal of duty in Private First Class Jones, whereas the disloyal statement offense is concerned with disloyalty to the United States. However, the specification indicates that the accused’s conduct consisted of declarations to Jones. The substance of the declarations is alleged. If they can reasonably be construed as importing disloyalty to the United States, they are of the kind proscribed by the Article 134 offense. For the moment, we pass over this problem. So far as the requirement that the statements be made “publicly” is concerned, the specification does not indicate whether the accused made the declarations attributed to him publicly or privately. Either circumstance, however, could be relied upon to prove the allegation; and to the extent the evidence showed the declarations were made publicly,
We turn now to the unresolved question whether the statements alleged in each specification were statements disloyal to the United States. In the Daniels case, we indicated that determination of the question as a matter of law is different from determination of the question as one of fact by the triers of the facts. Particular words may import disloyalty and be sufficient to justify denial of a motion to dismiss for legal insufficiency, but in evaluating the evidence and considering the credibility of the witnesses, the triers of the facts could find that they were not disloyal; and, conversely, the triers of the facts might find disloyalty where we might not, but if there is sufficient evidence in the record to support their findings, we would be constrained, in law, to affirm the verdict. United States v Taylor,
Some statements may be so explicit in meaning as to support a conclusion from their language that they are disloyal to the United States. Other statements require interpretation; and their real nature may be discernible only in the context of the circum
The offense found requires a finding of disloyalty to the United States in regard to two elements. As the comparison with section 2387 indicates, the accused’s state of mind must be directed toward promoting among the troops disloyalty to the United States and the statements must themselves be disloyal to the United States.
Disagreement with, or objection to, a policy of the Government is not nec-essarily indicative of disloyalty to the United States. See New York Times Co. v Sullivan,
^After enumerating the elements of the offense, as noted, the law officer defined the word “disloyalty,” He instructed the court members that the word “imports not being true to, or being unfaithful toward, an authority to whom respect, obedience, or allegiance is due.” (Emphasis supplied.) There was no instruction that the authority to whom allegiance was due was the United States, not the Marine Corps or other department of Government; nor was there an instruction to indicate that disobedience of orders is not per se equivalent to disloyalty to the United States.
Willful disobedience of an order, however important the order might be, does not necessarily constitute disloyalty to the United States. In United States v Noyd,
CHARGES
Charge I, specification 1
Charge I, specification. 2
Charge I, specification 3
Reversal of the findings of guilty for instructional error requires us to consider whether any findings of guilty unaffected by error remain. United States v Patterson,
The statements in each of the sp^ ifications on which the court-mark - returned findings of guilty are as follows:
STATEMENTS
“(1) Why should the black man go to Vietnam and fight the white man’s war and then come back and have to fight the white man.
“(2) That he (Lance Corporal HARVEY) was not going to fight in Vietnam and neither should Private JONES.
“(3) That Private JONES should request mast of the company commander and tell the CO that he, Private JONES, would not go to Vietnam.”
“(1) Why should you (Private JOHNSON) go to Vietnam? Your people are over here fighting, why should you go over there and fight when you have to fight a war over here?”
“(1) The black man should not go to Vietnam and fight the white man’s war.
“(2) That PFC James Charles GRIFFIN should not go to Vietnam to fight the white man’s war.
“(3) That PFC James Charles GRIFFIN was an ‘Uncle Tom’ for wanting to go to Vietnam to fight the white man’s war.”
STATEMENTS
Additional Charge, specification 2
“(1) You should request Mast with the Captain (Company Commander) and refuse to go to Vietnam because there is no reason for you and the rest of the black men to go over to Vietnam and fight the white man’s war.
“(2) You should request Mast before the Company Commander and refuse to go fight the war in Vietnam.”
All the statements were made at Camp Pendleton, California, during a period when the accused and the persons mentioned in the specifications were engaged in training to qualify them for service in Vietnam. It further appears that at the end of this training they, in all probability, would have been transferred to Vietnam. The declarations resulted in a request for mast by a number of members of the accused’s unit. It is clear that the request was designed to avoid transfer to Vietnam.
Considering the nature and the consequences of the accused’s declarations, the board of review determined, as we noted earlier, that they demonstrated an effort by the accused to “organize a group into collective action to coerce the Marine Corps to do his will.” That conclusion might, perhaps, be justifiable on the basis of the entirety of the accused’s conduct, but the separateness of the specifications requires that each be considered independently of the others. So considered, the court-martial’s findings indicate, as a minimum, that the accused solicited a member of the Marine Corps to commit a military offense, specifically to refuse perform-anee of a military obligation from which he could not be excused because of personal scruples. United States v Noyd, supra. The findings are consistent with the instructions as to the second lesser included offense, and constitute an offense in violation of Article 134. See Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 731, text reference to footnote 90; United States v Walker,
The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy for submission to the United States Navy Court of Military Review for reassessment of the sentence on the basis of the approved findings of guilty.
Notes
The law officer instructed the court members that they were required to find that the disloyal statement was made “publicly.”