United States v. Hawthorne

7 C.M.A. 293, 7 USCMA 293, 22 C.M.R. 83, 1956 CMA LEXIS 212, 1956 WL 4740

• Court: United States Court of Military Appeals
• Decided: August 24, 1956
• Docket: No. 8077
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused was tried for operating a military truck while drunk (Charge I), being drunk on duty (Charge II), and misappropriating a Government vehicle by deviating from his normal route on the post (Charge III). He was acquitted of Charges I and II and convicted on Charge III. After evidence of three previous convictions was introduced, and defense counsel made an unsworn statement on behalf of the accused, the court adjudged a sentence of dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The convening authority modified the sentence by reducing the period of confinement to 11 months. He ordered the sentence executed, except that part relating to the dishonorable discharge. A divided board of review affirmed. We granted review to determine whether the Commanding General, Fourth Army, exercised improper control over the proceedings.

On September 20, 1954, the Commanding General, Fourth Army, published a policy declaration in regard to the elimination of Regular Army offenders. In pertinent part, the policy directive reads as follows:

“Subject: Elimination of RA repeated Offenders

“3. These statistics show that Regular Army personnel, constituting 38% of the troop strength of Fourth Army, account for 64% of the courts-martial.

“5. It is desired that commanders give vigilant attention to the elimination from service of Regular Army personnel who have demonstrated by repeated misconduct a weakness of character which renders them unfit to serve. Inductees, however, should be retained for their full term of service in each case within reason in order that compulsory service will not be evaded through a deliberate design of misconduct. Regular Army personnel, on the other hand, will not be retained for any period longer than is absolutely necessary after they have demonstrated an inability or lack of inclination to reflect credit upon the service. Consideration for elimination will be exercised in the following order:

a.Elimination by a punitive discharge under a sentence by court-martial. As a general rule, any charge against a Regular Army soldier with two admissible previous convictions should be referred to a general court-martial in order that para 127, Sec B, MCM, may be fully utilized.

b. Resignation in lieu of trial by court-martial under the provisions of para 6, AR 615-867.

c. Elimination through appropriate Board action.

“7. This matter in information as to the state of discipline within the Command and, in accordance with the provisions of para 38, MCM, this letter will be brought to the attention of every member of every general courts-martial hereafter appointed. Care will be taken, however, that such action is taken prior to any case being referred for trial to the courts concerned.”

The accused is a Regular Army soldier. Within the two-year period immediately preceding the present offense, he was convicted by a summary court on two occasions for being drunk and disorderly in a public place, and once by a special court for drunkenness, breach of restriction, and attempted escape from the custody of a military policeman. On June 4, 1955, his commanding officer, Captain Novaky, preferred charges against him and forwarded them to the next higher authority. In the letter of transmittal, Captain Novaky said: “In view of the Fourth Army Policy regarding Regular Army EM, having two or more previous convictions within a period of two years, I recommend trial by General Court.” By indorsement, the addressee concurred in the recommendation. Two other commanding officers intermediate to the convening authority, the Commanding Officer, Fourth Army, also recommended trial by general court-martial.

This Court has consistently held that any circumstance which gives even the appearance of improperly influencing the court-martial proceedings against the accused must be condemned. In regard to the pretrial proceedings, we set aside a conviction because, in his advice to the convening authority, the Staff Judge Advocate misstated the Investigating Officer’s recommendation for trial. United States v Greenwalt, 6 USCMA 569, 20 CMR 285. And in United States v Littrice, 3 USCMA 487, 13 CMR 43, we reversed the accused’s conviction because of pernicious suggestions made by the convening authority to members of the court-martial in a pretrial conference with them. On the post-conviction level, we invalidated the proceedings when it appeared that the record of trial was reviewed by a person having a personal interest in the outcome of the litigation. United States v Turner, 7 USCMA 38, 21 CMR 164. We took similar action wherever it' seemed that the convening authority’s own review was based upon the strictures of an ostensibly inviolable policy by superior authority, rather than upon his independent judgment in the individual case. United States v Doherty, 5 USCMA 287, 17 CMR 287.

It is not always easy to determine when a particular circumstance constitutes an improper influence. Thus, in United States v Littrice, supra, and in United States v Navarre, 5 USCMA 32, 17 CMR 32, we had before us the question of the effect of certain references to the efficiency rating of court members based on court-martial duty, which were made by the convening authority in a pretrial conference with the court members. In Littrice, this Court concluded that in the light of all the surrounding circumstances, the references constituted “command control.” However, in Navarre, a divided Court determined that the surrounding facts demonstrated that the comments were innocent and innocuous.

Under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951, the commander having summary court-martial jurisdiction over the accused has substantial discretion to determine whether charges should be disposed of administratively or by court-martial. Article 15, Uniform Code of Military Justice, 50 USC § 571. Manual for Courts-Martial, supra, paragraph 32c, f, and paragraphs 128&, 129. If the charges are to be submitted for trial by special or general court, the commanding officer must forward the charges by letter of transmittal, which among other things, should contain a specific recommendation as to the disposition of the charges. Manual for Courts-Martial, supra, paragraph 32/ (4) (e). Moreover, consistent with the fundamental purposes of the Uniform Code to assure a just punishment in each individual case (United States v Wise, 6 USCMA 472, 20 CMR 188; United States v Lanford, 6 USCMA 371, 20 CMR 87), the Manual directs that if the charges are to be “tried at all, [they] should be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment.” Manual for Courts-Martial, supra, paragraph 30/. The fact that the Table of Maximum Punishments authorizes punishment for particular offenses in excess of that which can be adjudged by a summary or special court-martial, does not itself preclude reference of the charges to such inferior court. And if the commander concludes that it would be a just punishment if the court adjudges a punitive discharge, upon conviction of the offense charged, consideration should be given to the “court the case should be referred in order that the appropriate kind of discharge — dishonorable or bad conduct — may be adjudged.” Manual for Courts-Martial, supra, paragraph 33h. At the same time, the established policies promulgated by superior authority should be considered.

Relying upon the above provisions of the Uniform Code and the Manual, the accused attacks the proceedings against him on several grounds. One of these is that Fourth Army policy was deemed, by Captain Novaky, the accused’s immediate commander, to be mandatory. As a result, no attention was given by him to the other factors which are enumerated in the Manual and which would normally be important in reaching a decision as to the disposition of the charges, and in determining the coui’t to which they should be referred, if trial by court-martial is deemed appropriate. After careful consideration of the captain’s letter and the policy instruction, wo conclude that the latter appears to be inviolable. See United States v Wise, supra; United States v Doherty, supra.

Two statements stand out in bold relief. First, the directive provides that consideration for elimination from the service “will be exercised in the following order.” At the very head of the list is trial by general court-martial. Plainly, therefore, the normal procedure for disposing of a charge by the lowest appropriate court-martial is ignored. Instead, the charges must uniformly be referred to the highest court. The second point of emphasis on command rather than suggestion is the statement that “any charge” will be referred to a general court-martial. The accused’s commander is deprived of his discretion. Even the most trivial offense must be referred to the highest court in the court-martial system. Necessarily, therefore, an offense in the twilight zone, such as the one in the present case, which might otherwise appropriately be referred to a special court-martial, is sent to a general court.¹

Perhaps, as the Government contends, the policy directive was not actually intended to put subordinate commanding officers “in a mental strait jacket which denies . . . [them] any freedom of choice.” United States v Doherty, supra, page 294. Unquestionably, however, the language used is susceptible of such construction. In our opinion, there is a strong risk that it was so construed by appropriate courts-martial commanding officers.

We fully appreciate the commanding general’s need for broad regulatory authority in his command for the maintenance and improvement of discipline for the effective fulfillment of his assigned mission. We have no disposition to curb him in the exercise of his powers. On the contrary, we have consistently upheld him when he has exercised his proper functions. For example, in United States v Gray, 6 USCMA 615, 620, 20 CMR 331, we pointed out that a “commander has plenary power over his subordinate officers regarding command functions.” However, when the commander extends his authority into forbidden areas, we must strike down his action. Here, he acted improperly in a field outside his command competency.

Not only did the commanding general seek to curb the power granted by the Uniform Code to the accused’s immediate commander, but he also trenched upon the right of an accused to be tried by an impartial court-martial. By its express terms, the policy had to be brought to the attention of “every member of every general courts-martial.” The concurring member of the Court agrees with us that the terms of the directive were such as to necessarily influence the determinations of the court members. In our opinion, it not only had to influence them, but also the accused’s own commanding officer; we cannot separate its effect. In sum, the policy directive directly tended to control the judicial processes rather than merely attempting to improve the discipline of the command. It was, therefore, illegal.

The Government maintains that even if the policy is objectionable, the accused’s failure to interpose a motion for appropriate relief at the trial or to challenge the court members constitutes a waiver. It can strongly be argued that error resulting from the exercise of improper command control strikes at the heart of the court-martial system itself, and, therefore, cannot be waived. See United States v Ferguson, 5 USCMA 68, 17 CMR 68, concurring opinion of Chief Judge Quinn. We need not decide that question here. Suffice it to say that there is no showing that the defense counsel at the trial was aware of the policy directive or of Captain Novaky’s letter of transmittal. The former is addressed ito “Commanders, Class I and II Installations, Units and Activities,” and is intended for their personal consideration. The latter is addressed to the Commanding General, Medical Training Center. Under these circumstances, we are unwilling to charge defense counsel at the trial with notice of the contents. United States v Schuller, 5 USCMA 101, 17 CMR 101.

In reaching our conclusion, we have not overlooked the serious question of whether the Fourth Army policy constitutes class regulation which contravenes the “guiding norm of our system —Equal Justice Under Law.” United States v Navarre, supra, page 38. Certain later modifications of the policy have been brought to our attention. Further changes may have been promulgated by succeeding commanding officers since this case reached us. Consequently, assuming that the modified policy is still extant, we express no opinion whatever on its validity.

The findings of guilty and the sentence are set aside. The charges are returned to The Judge Advocate General of the Army for transmittal to the officer exercising summary court-martial jurisdiction over the accused for his consideration and action. See United States v Clisson, 5 USCMA 277, 17 CMR 277.

Judge FERGUSON concurs.

1 As a practical matter, Army regulations discourage the reference of such cases to a special court-martial, instead of to a general court-martial. SR 22-145-1. We ¡are not, however, concerned with the propriety of these regulations.