United States v. Townsend , 1995 CAAF LEXIS 129 ( 1995 )

Opinion of the Court

SULLIVAN, Chief Judge:

1. During May of 1991, appellant, a storekeeper first class in the Coast Guard, was tried by a general court-martial composed of a military judge alone at U.S. Coast Guard Maintenance and Logistics Command Atlantic, Governors Island, New York. Contrary to his pleas, he was found guilty of rape and violating a lawful general regulation prohibiting fraternization, in violation of Articles 120 and 92, Uniform Code of Military Justice, 10 USC §§ 920 and 892, respectively. He was sentenced to a dishonorable discharge, confinement for 2 years, and reduction to pay grade E-l. The convening authority approved the sentence on September 9, 1991. The Court of Military Review¹ set aside the findings of guilty of rape and dismissed that charge on March 10, 1992. That court also reassessed the sentence based on the remaining findings of guilty and reduced it to a bad-conduct discharge, confinement of 1 year, and reduction to E-l. 34 MJ 882, 887.

2. Appellant subsequently petitioned this Court for a grant of review, raising three issues. On August 28, 1992, this Court granted review of two of those issues. 36 MJ 221. On May 28, 1993, appellant moved for leave to file an addition to his supplement raising a new issue. This Court granted that motion on June 22, 1993, and on September 30, 1993, granted review of the additional issue raised by appellant. Further, this Court remanded appellant’s case to the court below for consideration of that issue. 39 MJ 37. On February 23, 1994, that court again affirmed the findings of guilty and the sentence in this case..

3. On August 17,1994, we granted review of this issue:

WHETHER THE EVIDENCE IS SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION OF VIOLATING A LAWFUL GENERAL ORDER.

4. Before us, appellant stands guilty of the remaining offense under Article 92, as follows:

Specification: In that [appellant] on active duty, did, at U.S. Coast Guard Support Center New York, on or about 20 November 1990, violate a lawful general regulation, to wit: Article 8-H-5, U.S. Coast Guard Personnel Manual, Commandant Instruction M1000.6A by wrongfully engaging in an improper senior/subordinate relationship by having sexual intercourse with a subordinate over whom he had supervisory authority and the capability to influence personnel actions regarding that subordinate.

The regulation alleged to have been violated in this case is the same one alleged to have been violated in United States v. Webster, 37 MJ 670 (CGCMR 1993). There it was also attacked for the first time on appeal (id at 676) on the basis that it was not “a ‘punitive’ regulation nor, in any event, was [it] promulgated properly.” 37 MJ at 675. On May 18, 1993, the Court of Military Review decided that this regulation was not sufficiently shown in that case to be properly promulgated by a qualified officer. Id. at 679. As noted above, appellant’s case had already been affirmed by the Court of Military Review in March 1992, without specific reference to this issue.

5. As noted above, on May 28, 1993, appellant moved to add an additional issue for review based on the Court of Military Review’s decision in United States v. Webster, supra. On September 30, 1993, this Court remanded appellant’s case for further review by means of the following order:

On consideration of the addition to appellant’s supplement to the petition for grant of review, which questions the sufficiency of the evidence supporting the affirmed finding of appellant’s guilt of violating a lawful general regulation and raises an issue which was not considered by the Court of Military Review, it is by the Court this 30th day of September, 1993

ORDERED:

That review of the additional issue presented by appellant is hereby granted; and

That the record is hereby returned to the General Counsel of the Department of Transportation for remand to the United States Coast Guard Court of Military Review for consideration of the additional issue in light of United States v. Webster, 37 MJ 670 (CGCMR 1993). Upon conclusion of such proceedings, Article 67, Uniform Code of Military Justice, 10 USC § 867 [ (1989) ] shall apply.

6. On February 23, 1994, the Court of Military Review affirmed the same findings and sentence as it had earlier, holding appellant’s case was distinguishable from United States v. Webster, supra. It relied on a putative “affirmative waiver” by civilian appellate counsel during the original oral argument of any issues concerning the regulatory offense and its own previously unrecognized concern for finality in factfinding. 39 MJ 784, 785.

7. Article 92 states:

§ 892. Art. 92. Failure to obey order or regulation

Any person subject to this chapter who—

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.

8. The President has explained the element of lawfulness of a general regulation or order as follows in paragraph 16c(l)(a), Part IV, Manual for Courts-Martial, United States, 1984:

c. Explanation.

(1) Violation of or failure to obey a lawful general order or regulation.

(a) Authority to issue general orders and regulations. General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:

(i) an officer having general court-martial jurisdiction;

(ii) a general or flag officer in command; or

(iii) a commander superior to (i) or

(ii)-

(Emphasis added.)

9. The particular question before this Court is whether Article 8-H-5, U.S. Coast Guard Personnel Manual, Commandant Instruction M1000.6A as it existed on November 20, 1990, was part of a lawful general order or regulation. The basic regulation issued in 1988 was signed by T.T. Matteson, Chief, Office of Personnel. Commandant Notice 1000 (5 April 1989), which published Change 4 to this Personnel Manual to add section 8-H-5, was signed by G.F. Woolever, Acting Chief, Office of Personnel and Training. See United States v. Webster, 37 MJ at 676. Our particular concern is whether the promulgating authority for the violated regulation was a commander recognized in paragraph 16c(1)(a), Manual, supra. United States v. Bartell, 32 MJ 295 (CMA 1991). Resolution of this question normally requires close scrutiny and understanding of service regulations. E.g., United States v. Breault, 30 MJ 833, 836 (NMCMR 1990).²

10. The Court of Military Review affirmed the findings of guilty and the sentence in appellant’s case after a remand by this Court to reconcile it with United States v. Webster, 37 MJ 670 (CGCMR 1993). See 39 MJ 784. It declined to follow its earlier decision in United States v. Webster, supra, and reasoned that Article 8-H-5 of the Coast Guard Personnel Manual, Commandant Instruction M1000.6 (Change 4, dated 5 April 1989), could be presumed in appellant’s case to be a lawful general regulation properly promulgated by a qualified officer. See United States v. Ballard, 39 MJ 1028 (CGCMR 1994). Contra United States v. Remchak, No. 1009 (CGCMR 11 June 1993) (unpublished), rejected, 39 MJ at 786 n. 1. In any event, that service court of military review on remand did not analyze appropriate regulations in the Coast Guard to determine the significance of the signature of the Acting Chief, Office of Personnel and Training, on Commandant Instruction M1000.6A. See ¶¶ 2-1-1 and 2-1-2, Coast Guard Regulations. (Appendix); see generally United States v. Breault, supra.

11. Despite the somewhat lengthy course of appellate proceedings in this case, we conclude that it is appropriate that the Court of Military Review answer the regulatory question left unanswered in its remand opinion. See United States v. Jones, 23 MJ 301-02 (CMA 1987). As indicated above, previous Coast Guard Court of Military Review decisions have sent mixed signals concerning this issue. Moreover, this regulatory question is important with respect to the expected conduct of Coast Guardsmen (see United States v. Webster, 37 MJ at 677)³ and one which requires Coast Guard judicial expertise. See United States v. Roach, 29 MJ 33, 36 (CMA 1989); United States v. Carlisle, 25 MJ 426 (CMA 1988). Accordingly, we deem a further remand is necessary. See United States v. Hilton, 27 MJ 323, 326 (CMA 1989).⁴

The 1994 decision of the United States Coast Guard Court of Military Review is set aside. The record of trial is returned to the General Counsel of the Department of Transportation for remand to the United States Coast Guard Court of Criminal Appeals for further review in accord with our opinion. Thereafter, the record will be returned directly to this Court for further review.

APPENDIX CHAPTER 2

RULES, ORDERS, AND INSTRUCTIONS

PARTI

Rules, Orders, and Instructions Promulgated by Responsible Officers and Officials

2-1-1 The Commandant

The Commandant issues rules, orders, and instructions, consistent with law, that relate to the organization, internal administration, and personnel of the Coast Guard. (14 U.S.C. 632) These are of two principal types:

(1) U.S. Coast Guard Regulations (COMDTINST M5000.3 series), that include the principal rules for the organization, internal administration, and personnel of the Coast Guard. They also include, to standardize certain procedures, rules of lesser importance that are relatively permanent in nature;

(2) Directives, including instructions and notices, that support and supplement the material in the U.S. Coast Guard Regulations Manual (COMDTINST M5000.3 series) and publications, but are not permanent. Instructions except joint instructions and manual instructions are automatically cancelled on 30 September or 31 March following the fourth anniversary of their issuance, whichever occurs first.

2-1-2 Other Officers and Officials

A. Under the authority of the Commandant, responsible officers and officials of the Coast Guard may issue or have issued directives concerning internal administration and personnel over which they exercise command, control or supervision. (14 U.S.C. 632; 49 CFR 1.45)

B. The system of directives that is established by area, district and MLC commanders shall be patterned after the general directives system prescribed by the Commandant in the Coast Guard Directives System Manual (COMDTINST M5215.6 series) with modifications that are necessary to adapt the system to the requirements of the area, district or MLC.

C. Copies of every area, district and MLC directive within the system shall be forwarded to the Commandant as follows:

(1) three copies of each unclassified directive to Commandant (G-TPS);

(2) three copies of each directives index to Commandant (G-TPS); and

(3) classified directives on a need to know basis to the office or special staff division component of the Commandant's staff having cognizance of the subject matter.

1 . See 41 MJ 213, 229 n. * (1994).

2 . Appendix C to appellant’s Final Brief is a copy of Commandant Notice (COMDTNOTE) 1000 (5 April 1989) and publishes Change 4 to the Personnel Manual, COMDINST M1000.6A. Change 4 first promulgated Article 8-H-5, the section alleged to have been violated on November 20, 1990. On its face it states: "CANCELLED 5 Oct 1989.” Clarification of this regulatory question would also be appropriate.

3 . Paragraph 16e, Part IV, Manual for Courts-Martial, United States, 1984, provides that the maximum punishment for a violation of a lawful general order or regulation is a dishonorable discharge, total forfeitures, and confinement for 2 years. On the other hand, the maximum punishment for a violation of other lawful orders is a bad-conduct discharge, total forfeitures, and confinement for 6 months.

4 . We are aware that on July 31, 1995, this Court issued a show cause order in United States v. Ryder, 39 MJ. 454 (1995). Our remand of appellant’s case to the appellate court below is subject to the results of our decision in Ryder. See United States v. Schneider, 36 MJ 364 (CMA 1993); United States v. Rice, 36 MJ 264 (CMA 1993).