No. 12,140 | United States Court of Military Appeals | Apr 3, 1959
Lead Opinion
Opinion of the Court
By certificate of The Judge Advocate General of the Air Force,
“In that BASIC AIRMAN JACK W. KEELER, United States Air Force, 1503rd Air Base Squadron, did, at Tachikawa City, Japan, on or about 2 May 1958, violate a lawful general regulation, to wit: Paragraph 6a (3), Tachikawa Air Base Regulation 35-3, dated 28 February 1958, by being in Tachikawa City, Japan, without having in his possession a DD Form 345, Standard Pass.”
A board of review held that the Tachikawa Air Base was not a major command. Consequently, the board concluded that the regulation promulgated by the command was not a “general order or regulation” within the meaning of Article 92, subsection (1). The board of review noted that the specifications did not allege the accused had knowledge of the regulations. See Manual for Courts-Martial, United States, 1951, Appendix 6c, Form 29, page 476. It held that the omission of such an allegation was a fatal defect and that the specification therefore did not allege an offense under Article 92, subsection (2). It based its determination upon the decision of this Court in United States v Bunch, 3 USCMA 186" court="None" date_filed="1953-07-31" href="https://app.midpage.ai/document/united-states-v-bunch-8570855?utm_source=webapp" opinion_id="8570855">3 USCMA 186, 11 CMR 186. In that case we held that a specification which purports to charge a violation of an order emanating from a commander who has no authority to issue a general order is legally insufficient if it fails to allege the accused had knowledge of the order.
The Government contends the board of review erred in its conclusions. First, it argues that the command occupies “a substantial position in effectuating the mission of the service” (see United States v Brown, 8 USCMA 516" court="None" date_filed="1957-12-20" href="https://app.midpage.ai/document/united-states-v-brown-8571984?utm_source=webapp" opinion_id="8571984">8 USCMA 516, 25 CMR 20) and, therefore, is a major command with authority to promulgate-general orders within the meaning of Article 92 (1) of the Uniform Code. The record of trial, however, indicates
Relying upon the fact that we returned the Brovm case to the board of review for reconsideration of the sentence, the Government maintains the specification is legally sufficient to state a violation of subsection (2), notwithstanding the absence of an allegation of knowledge on the part of the accused. The issue in the Brown ease was whether the challenged order was a “general order” under subsection (1) or another “lawful order” under subsection (2). The sufficiency of the specification was not raised before us and we did not consider the question. The Brown case, therefore, does not contradict or represent a departure from our holding in the Bunch case. See United States v Posnick, 8 USCMA 201" court="None" date_filed="1957-08-16" href="https://app.midpage.ai/document/united-states-v-posnick-8571833?utm_source=webapp" opinion_id="8571833">8 USCMA 201, 24 CMR 11. The board of review was thus correct in following the decision in Bunch.
For the reasons stated, the certified question is answered in the affirmative and the decision of the board of review is affirmed.
Article 67 (b), Uniform Code of Military Justice, 10 USC § 867.
Dissenting Opinion
(dissenting):
I dissent.
Unfortunately the opinion in the case at bar, written in answer to a certified question, instead of resolving any doubts on the issue referred to us, is only determinative of the instant proceeding. In view of the divergent approach of the three opinions, no law at all is established.
In my view, we must answer the certified question. And, since the author Judge reaches the merits, I must assume he is of the same belief. However, to prevent the services from being misled by the Court’s tripartite approach, I invite attention to the clear language of Article 67 (b) (2), Uniform Code of Military Justice, 10 USC § 867, and our decisions in United States v Zimmerman, 2 USCMA 12" court="None" date_filed="1952-10-06" href="https://app.midpage.ai/document/united-states-v-zimmerman-8570587?utm_source=webapp" opinion_id="8570587">2 USCMA 12, 6 CMR 12; United States v Sippel, 4 USCMA 50" court="None" date_filed="1954-03-26" href="https://app.midpage.ai/document/united-states-v-sippel-8571020?utm_source=webapp" opinion_id="8571020">4 USCMA 50, 15 CMR 50; United States v Speller, 8 USCMA 363" court="None" date_filed="1957-11-01" href="https://app.midpage.ai/document/united-states-v-speller-8571906?utm_source=webapp" opinion_id="8571906">8 USCMA 363, 24 CMR 173; and United States v Robertson, 8 USCMA 421" court="None" date_filed="1957-11-15" href="https://app.midpage.ai/document/united-states-v-robertson-8571928?utm_source=webapp" opinion_id="8571928">8 USCMA 421, 24 CMR 231.
Turning now to the merits of the issue, my views concerning authority to issue general orders within the meaning of Article 92(1) of the Code, 10 USC § 892, are spelled out generally in my separate opinion in United States v Tinker, 10 USCMA 292" court="None" date_filed="1959-03-20" href="https://app.midpage.ai/document/united-states-v-tinker-8572580?utm_source=webapp" opinion_id="8572580">10 USCMA 292, 27 CMR 366. I there noted that my colleagues appeared to be casting aside prior case law, but in view of the disposition in that instance the matter did not merit further discussion. In the case at bar, however, I deem it fair to state that the base opinion not only fails to follow our previous holdings which I believe should be controlling, but in fact indicates the author Judge would overrule them sub silentio. And, quite out of the ordinary, even though the principal opinion cites at least one of this line of cases, it pays no attention to its holding. I must, therefore, disagree with the result reached by the Court in this instance, and certainly I desire to point out that we leave military law in a state of confusion when the disposition ordered by
Only shortly after the Uniform Code became effective, we were confronted with cases involving the authority to issue general orders within the meaning of Article 92 (1) of the Code, supra. In United States v Snyder, 1 USCMA 423" court="None" date_filed="1952-06-05" href="https://app.midpage.ai/document/united-states-v-snyder-8570514?utm_source=webapp" opinion_id="8570514">1 USCMA 423, 4 CMR 15, our unanimous opinion announced that general orders included “those promulgated by the commander of a post, ship, or station,” and we held therefore that an infraction of a regulation issued by the commander of Camp Lejeune, North Carolina, constituted a violation, of Article 92(1), Uniform Code of Military Justice, supra. The Chief Judge, writing for a unanimous Court in United States v Wade, 1 USCMA 459" court="None" date_filed="1952-07-11" href="https://app.midpage.ai/document/united-states-v-wade-8570523?utm_source=webapp" opinion_id="8570523">1 USCMA 459, 4 CMR 51, affirmed the rule. And again in United States v Arnovits, 3 USCMA 538" court="None" date_filed="1953-12-18" href="https://app.midpage.ai/document/united-states-v-arnovits-8570943?utm_source=webapp" opinion_id="8570943">3 USCMA 538, 13 CMR 94, the three Judges were of one mind in applying that rule. During the same period we decided United States v Bunch, 3 USCMA 186" court="None" date_filed="1953-07-31" href="https://app.midpage.ai/document/united-states-v-bunch-8570855?utm_source=webapp" opinion_id="8570855">3 USCMA 186, 11 CMR 186. In that case, too, we reached unanimity, and the author Judge, in the instant decision, refers to it with approval. I quite agree it furnishes valid authority for resolution of the present issue, and invite consideration of that holding. We there noted that in Snyder, supra, we had held that the commander of a post, ship, or station, could issue general orders, and then made the following statement:
“The ruling in that case would be controlling in the present instance if it were not for the fact that after the case was tried subsequent regulations were promulgated by the Secretary of the Navy and the issuance of general orders was restricted to higher commanders.”
Manifestly, the holding of Bunch, then, is that the commander of a ship — in that instance a destroyer — was, under the law, fully competent to issue general orders except for the restriction imposed by superior authority. It should cause little wonder, then, that I find support for my position in the very case upon which the base opinion finds the board of review properly relied. Turning to later cases, as recently as United States v Stone, 9 USCMA 191" court="None" date_filed="1958-04-18" href="https://app.midpage.ai/document/united-states-v-stone-8572196?utm_source=webapp" opinion_id="8572196">9 USCMA 191, 25 CMR 453, which my associate cites —and I note that opinion too was, as indeed is this entire line of cases, agreeable to all members of the Court— we referred with approval to Snyder and Arnovits, supra. See also United States v Statham, 9 USCMA 200" court="None" date_filed="1958-04-18" href="https://app.midpage.ai/document/united-states-v-statham-8572197?utm_source=webapp" opinion_id="8572197">9 USCMA 200, 25 CMR 462.
Our prior decisions, then, lead ineluctably to the conclusion that the commander of a post, ship, or station has authority to issue general orders. And parenthetically I note that support for this proposition may be found in current service regulations, for AR 310-110B, January 18, 1955, paragraph 6j, notes that general orders are used, inter alia, to “Announce post or garrison regulations.”
The author Judge in this instance, however, seems content to gloss over this line of authority and apparently would adopt some new test purportedly founded on United States v Stone, supra, and United States v Brown, 8 USCMA 516" court="None" date_filed="1957-12-20" href="https://app.midpage.ai/document/united-states-v-brown-8571984?utm_source=webapp" opinion_id="8571984">8 USCMA 516, 25 CMR 20. Certainly Stone affords him no support, for the holding there is concerned only with whether knowledge is an element of the offense where general orders emanate from a certain level. It does not involve a ruling on authority to issue all general orders except that by necessary inference obviously a commander of the Department, Territorial, theater, or similar area level may do so. The rationale of the principal opinion necessarily boils down, then, simply to whether the commander in question possessed general court-martial jurisdiction. That test, of course, is specious, for Brown to me is not predicated upon that basis, and under that yardstick a commander of a Naval station would possess authority not granted to any Army or Air Force station commander. See Article 22, Uniform Code of Military Justice, 10 USC § 822. Moreover, under the last-cited Article, a Secretary of a Department can clothe any commander with general court-martial jurisdiction. Under the theory
Having demonstrated what I believe to be the misconceptions in the reasoning of the base opinion, I turn now to a short development of my own views. I would continue to follow the line of our prior eases under which, as we have previously seen, base commanders are empowered to issue general orders. United States v Snyder, supra; United States v Wade, supra; United States v Arnovits, supra. Certainly the commander of Tachikawa Air Base meets that test. Moreover, I am confident no one will dispute that that command “occup[ies] a substantial position in effectuating the mission of the service,” United States v Brown, supra. And no one has brought to my attention any order by superior authority proscribing issuance of general orders by this commander. United States v Bunch, supra. It necessarily follows, therefore, that the regulations in question were general, and hence that the specifications state offenses violative of Article 92(1) of the Code, supra.
Accordingly, I would answer the question certified to us by the Acting The Judge Advocate General of the Air Force, in the negative, and I would reverse the decision of the board of review.
Concurrence Opinion
(concurring in the result):
In my opinion, the accused’s separation from the service by affirmative action terminated the proceedings. See my dissent in United States v Speller, 8 USCMA 363, 24 CMR 173. Accordingly, I join in affirming the dismissal of the charges.