United States v. Heyward

17 M.J. 942, 1984 CMR LEXIS 4674
CourtU S Air Force Court of Military Review
DecidedFebruary 23, 1984
DocketACM 24138
StatusPublished
Cited by4 cases

This text of 17 M.J. 942 (United States v. Heyward) 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. Heyward, 17 M.J. 942, 1984 CMR LEXIS 4674 (usafctmilrev 1984).

Opinion

DECISION

SNYDER, Judge.

We hold as to this issue, that a noncommissioned officer who has knowledge of an [944]*944airman’s involvement with drug abuse and fails to report that drug abuse to a superior, or law enforcement authorities, may be convicted of dereliction of duty, in violation of Article 92, U.C.M.J., 10 U.S.C. § 892.

The accused stands convicted of dereliction of duty, use of marijuana, conspiracy to obstruct justice, and endeavoring to impede the administration of nonjudicial punishment, in violation of Articles 81, 92, and 134, U.C.M.J., 10 U.S.C. §§ 881, 892, 934. His sentence extends to a dishonorable discharge, confinement at hard labor for seven years, and accessory penalties.

The specific delict with which the accused was charged was willfully failing to report to proper authorities, the wrongful use of marijuana by Air Force members, as it was his duty to do. Appellate defense counsel urge that the findings of guilty of the dereliction charge and its specification be set aside and the charge dismissed. We decline to do so.

I

A person is derelict in the performance of duties when there is a willful or negligent failure to perform them, or when they are performed in a culpably inefficient manner. Manual for Courts-Martial, 1969 (Rev.), para. 171e. A duty may be imposed by regulation, lawful order, or custom of the service. M.C.M., supra; United States v. Green, 47 C.M.R. 727 (A.F.C.M.R.1973), pet. denied, 48 C.M.R. 999 (1974). In the instant case, the duty breached was imposed upon the accused via regulation and custom of the service.

Air Force Regulation 30-2, Social Actions Program, 22 June 1981, paras. 3-18a and b, read as follows:

All Personnel:
a. Should encourage people known to have an existing or potential drug or alcohol abuse problem to seek assistance. When abuse exists, the proper unit commander must be notified at once. The commander must be fully advised of the circumstances, so that he or she may personally evaluate how the impact would affect the mission of the unit, (emphasis added)
b. Report known or suspected incidents of illegal drug abuse to théir immediate supervisor and unit commander, servicing security police agency, or local office of the AFOSI.1 (emphasis added)

We have previously upheld the efficacy of AFR 30-2. United States v. Grey, 1 M.J. 874 (A.F.C.M.R.1976). The provisions set forth above clearly impose a duty to report known or suspected drug abuse.

The imposition of the duty to report is clearly reasonable and necessary for the discipline and security of the Air Force. The pernicious impact of drug abuse on military preparedness cannot be gainsaid. While writing on the issue of service-connection of drug offenses, Chief Judge Everett made the following observations in United States v. Trottier, 9 M.J. 337 (C.M.A.1980):

It has often been asserted, and as often acknowledged, that drug abuse in the military is a most serious problem, [citation omitted]
As military equipment has become more sophisticated, there is the concomitant increased risk [from drug abuse] that an operator will be unable to handle the complicated weapons system with which he is entrusted and upon which his safety and that of others may depend.
* * * * * *
Indeed, in many instances the drugs will enter the military installation in their most lethal form — namely, when they are coursing through the body of the user.
[T]he gravity and immediacy of the threat to military personnel and installations posed by the drug traffic and by drug abuse convince us that very few drug involvements of a service person will not be “service-connected.” (emphasis added)

[945]*945United States v. Trottier, supra, 345, 349, 351. These principles were recently reemphasized in Murray v. Haldeman, 16 M.J. 74 (C.M.A.1983). The quoted passages above reflect the seriousness with which drug abuse in the military is viewed. Thus, the failure to report drug abuse is no trivial matter.

The importance of maintaining a disciplined, drug-free force is obvious. Consequently, the noncommissioned officer corps is an integral part of the deterrent effort. Air Force Pamphlet 50-34, MTS/PFE2 Guide, 1 October 1982, Chapter 2, provides, in part, as follows:

As an NCO you must discharge the following responsibilities:
# * * * * *
Maintain exemplary standards of behavior, including personal conduct, courtesy, loyalty, and personal appearance. Exercise leadership by example and be alert to correct personnel who violate these standards, (emphasis added)
# * * * * *
Observe, counsel, and correct subordinates on matters of duty performance, individual conduct, customs, courtesies, safety, and personal appearance both on and off duty.
* * * * * Sic

The evidence of record amply demonstrates the accused’s familiarity with all of the regulatory provisions set forth above.3

In addition to the duties imposed by regulation and training directives, are the duties imposed by custom. Indeed, the regulatory provisions flow from custom. Non-commissioned officers’ authority to assist in the maintenance of order and discipline4 is a recognition of their responsibility to do so and a means to aid in the discharge of that responsibility. Air Force Regulation 30-1, Air Force Standards, 4 May 1983, para. 6, states, in part, as follows:5

You are also held accountable for your own actions, both in the performance of duties and in your personal conduct. If you are a supervisor, you must hold your subordinates accountable and take appropriate corrective actions when they do not fulfill their responsibilities.

Generally speaking, promotion to non-commissioned officer rank means an increase in rank, pay, privileges, and prestige. However, it means more than the extra stripe on one’s sleeve. It is the assumption of a status; and commensurate with that status is the responsibility to assist in the maintenance of order and discipline.

It is abundantly clear that the accused had a duty to report those airmen whom he knew to be using marijuana, especially those who worked under his supervision. By willfully failing to do so, he was derelict in the performance of his duty.6

II

At least three instances of the use of marijuana which the accused failed to re[946]*946port were instances where he participated in the use of marijuana.

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Related

United States v. Briley
26 M.J. 977 (U S Air Force Court of Military Review, 1988)
United States v. Heyward
22 M.J. 689 (U S Air Force Court of Military Review, 1986)
United States v. Heyward
22 M.J. 35 (United States Court of Military Appeals, 1986)
United States v. Gonzales
19 M.J. 951 (U S Air Force Court of Military Review, 1985)

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Bluebook (online)
17 M.J. 942, 1984 CMR LEXIS 4674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-heyward-usafctmilrev-1984.