United States v. Goosby

36 M.J. 512, 1992 CMR LEXIS 782, 1992 WL 322362
CourtU S Air Force Court of Military Review
DecidedOctober 29, 1992
DocketACM 29191
StatusPublished

This text of 36 M.J. 512 (United States v. Goosby) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Goosby, 36 M.J. 512, 1992 CMR LEXIS 782, 1992 WL 322362 (usafctmilrev 1992).

Opinion

OPINION OF THE COURT

JOHNSON, Judge:

Consistent with his pleas, a general court-martial found Captain Goosby guilty of violating a restriction imposed upon him as nonjudicial punishment.1 The members sentenced him to dismissal and confinement for 1 month. Appellant raises several issues before us, none of which warrants relief. We affirm.

At the time of the charged offense, appellant was an air weapons controller with 11 years service. He was one of 56 U.S. military members assigned in North Bay, Ontario, Canada, at Headquarters, Canadian NORAD Region. On 24 July 1990 his commander punished him under Article 15, UCMJ, by reprimanding him and restricting him to the limits of the city of North Bay, Ontario, for 60 days. Over the Labor Day weekend, personnel of appellant’s unit attempted to contact him and learned that he had gone to visit his fiance in Rome, New York, which is an 8 or 9 hour drive from North Bay. Upon his return, appellant admitted that he had broken restriction.

CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN

Appellant was convicted of “conduct unbecoming an officer and a gentleman” under Article 133, UCMJ, 10 U.S.C. § 933. Appellant argues that this conviction should be set aside and he should be found guilty only of a lesser included offense under Article 134, 10 U.S.C.A. § 934, because the offense charged fails to constitute a violation of Article 133. Conduct by a commissioned officer that violates any punitive article of the UCMJ may be charged under Article 133, “provided these [514]*514acts amount to conduct unbecoming an officer and a gentleman.” MCM, Part IV, paragraph 59c(2) (1984). When the charged offense is the same as a specific offense under another article, the maximum punishment is dismissal, forfeiture of all pay and allowances, and confinement for the period authorized for the specific offense. See generally United States v. Hart, 30 M.J. 1176 (A.F.C.M.R.1990), aff'd, 32 M.J. 101 (C.M.A.1991). Breaking restriction is a specific offense under Article 134, UCMJ, for which the maximum punishment is confinement for 1 month and forfeiture of two-thirds pay per month for 1 month.2 Because appellant was charged under Article 133 rather than under Article 134, the maximum sentence included dismissal and total forfeitures.

Appellant’s argument rests on the proposition that breaking restriction is not “conduct unbecoming an officer and a gentleman.” He argues in essence that breaking restriction is too minor an offense to personally disgrace the offender or to bring disrepute upon the military profession.3

We disagree. Appellant willfully disobeyed his commander’s restriction order. That was fundamentally inconsistent with an officer’s position of special trust and responsibility. His offense was aggravated because the order violated was directed to him individually and was issued as part of a disciplinary action taken to correct appellant’s past misbehavior. Appellant’s defiance of this lawful order disgraced himself and tended to undermine confidence in the officer corps. We also note that at trial appellant joined in a stipulation of fact stating in part, “Under the case’s circumstances, the accused’s breaking of restriction constitutes conduct unbecoming an officer and a gentleman.” In his sworn statement during his guilty plea inquiry, appellant again agreed that under these circumstances his breaking restriction constituted conduct unbecoming an officer and a gentleman. Both these statements were conclusory in nature, but they indicate the issue was specifically addressed at trial, and nothing inconsistent with appellant’s pleas, stipulation, or sworn statement was raised. In the circumstances of this case, we find the accused’s offense constituted conduct unbecoming an officer and a gentleman, punishable under Article 133.

Appellant next argues his conviction under Article 133 should be set aside because Article 133 is unconstitutionally vague, and fails to give the notice required by due process of law that his conduct could be punished under that article. The Supreme Court considered a similar argument in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), in which an Army captain argued that Article 133 was too vague to permit his conviction for making disloyal statements. The Court held that Article 133 was not unconstitutionally vague, in part because it had been construed in the Manual for Courts-Martial and by the military appellate courts in a manner that narrowed the broad reach of its literal language. In short, Captain Levy could have had no reasonable doubt his conduct was unbecoming an officer and a gentleman. The Court also stated that because of the differences between the military and civilian society, Congress may “legislate with greater breadth and with greater flexibility” for the military. Id. at 756, 94 S.Ct. at 2561.

In United States v. Rodriguez, 18 M.J. 363 (C.M.A.1984), the Court of Military Appeals considered the case of an Air Force lieutenant charged with marijuana offenses and indecent acts under both Article 133 and Article 134. The Court held the same acts could violate both articles, but convictions for both would be multiplicious. The guilty findings under Article 134, the lesser offense, were dismissed. The same result was reached in United States v. Timberlake, 18 M.J. 371 (C.M.A.1984), in which [515]*515another Air Force lieutenant was found guilty of both forgery under Article 123(2), 10 U.S.C. § 923(2) and conduct unbecoming an officer under Article 133, and in United States v. Johanns, 20 M.J. 155 (C.M.A. 1985), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985), in which an Air Force captain was convicted of both adultery under Article 134 and conduct unbecoming an officer under Article 133.

Appellant does not argue he lacked notice that his actions in breaking restriction were punishable under the UCMJ. He argues instead he had no notice his actions were punishable under Article 133. There is no constitutional or other requirement that a military accused understand all the various ways his offense can be charged. It is sufficient that he has reasonable notice that his conduct is punishable under the UCMJ. In this case, appellant was an officer with 11 years of service. There is no question that he knew he was subject to discipline under the UCMJ for breaking restriction. The possibility he may not have correctly predicted the specific UCMJ article under which he would be charged is of no legal significance.

PROVIDENCY OF GUILTY PLEA

In a submission to the convening authority styled “Clemency Petition,” appellant raises two issues concerning sufficiency of the evidence.4 In reviewing these issues we need to keep in mind that appellant pleaded guilty to breaking restriction; his pleas relieved the government from any obligation to prove the offense and waived any factual defense appellant might have raised. R.C.M. 910(c); United States v. Bartell, 32 M.J. 295 (C.M.A.1991). Before accepting appellant’s guilty plea, the military judge conducted a thorough inquiry into the factual basis of the plea and advised appellant carefully on the consequences of pleading guilty.

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Related

Parker v. Levy
417 U.S. 733 (Supreme Court, 1974)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
United States v. Chancelor
16 C.M.A. 297 (United States Court of Military Appeals, 1966)
United States v. Howe
17 C.M.A. 165 (United States Court of Military Appeals, 1967)
United States v. Armstrong
9 M.J. 374 (United States Court of Military Appeals, 1980)
United States v. Grostefon
12 M.J. 431 (United States Court of Military Appeals, 1982)
United States v. Snelling
14 M.J. 267 (United States Court of Military Appeals, 1982)
United States v. Rodriquez
18 M.J. 363 (United States Court of Military Appeals, 1984)
United States v. Timberlake
18 M.J. 371 (United States Court of Military Appeals, 1984)
United States v. Johanns
20 M.J. 155 (United States Court of Military Appeals, 1985)
United States v. Scott
24 M.J. 186 (United States Court of Military Appeals, 1987)
United States v. Hart
30 M.J. 1176 (U S Air Force Court of Military Review, 1990)
United States v. Hart
32 M.J. 101 (United States Court of Military Appeals, 1991)
United States v. Bartell
32 M.J. 295 (United States Court of Military Appeals, 1991)
United States v. Gunter
34 M.J. 181 (United States Court of Military Appeals, 1992)
United States v. Bell
34 M.J. 937 (U S Air Force Court of Military Review, 1992)
Bose Corp. v. Consumers Union of United States, Inc.
467 U.S. 1267 (Supreme Court, 1984)

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Bluebook (online)
36 M.J. 512, 1992 CMR LEXIS 782, 1992 WL 322362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-goosby-usafctmilrev-1992.