United States v. Hoard

12 M.J. 563, 1981 CMR LEXIS 633
CourtU.S. Army Court of Military Review
DecidedOctober 13, 1981
DocketSPCM 15053
StatusPublished
Cited by11 cases

This text of 12 M.J. 563 (United States v. Hoard) is published on Counsel Stack Legal Research, covering U.S. Army 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. Hoard, 12 M.J. 563, 1981 CMR LEXIS 633 (usarmymilrev 1981).

Opinion

OPINION OF THE COURT

FULTON, Senior Judge:

The appellant challenges the lawfulness of United States Army Training Center and Fort Dix (New Jersey) Regulation Number 600-2, dated 31 January 1979, as changed by Change 1, dated 8 May 1979. Among other things, the regulation prohibits persons assigned full time to the training center (i. e., the “permanent party”) from engaging in unofficial personal associations with persons passing through the reception station or undergoing their initial Army training at Fort Dix. Pertinent portions of the regulation are set forth in the Appendix.

Before a military judge sitting as a special court-martial, the appellant, who was a member of the permanent party of the United States Army Reception Station at Fort Dix, pleaded guilty to violating Article 92 of the Uniform Code of Military Justice, 10 U.S.C. § 892 (1976), through the following violations of the Fort Dix regulation:

a. On 18 November 1979, violating paragraph 5g “by wrongfully using Private E-l Allen R. Cundy, Private E-l Edward L. Westbrook, and Private Salimoney, trainees, to clean and paint his government quarters” (Specification 5, Charge I);

b. On 29 November 1979, violating paragraph 5p “by wrongfully socializing and drinking with Private E-l Constance E. Pendergrass, a receptee” (Specification 11, Charge I);

c. On 29 November 1979, violating “paragraph 5h [sic] ... by wrongfully engaging in sexual intercourse with ... [a [565]*565female receptee (not Private Pendergrass)]” (Specification 8, Charge I);1

d. On 20 December 1979, violating paragraph 5p “by wrongfully socializing with Private E-l Michael Wiggins, Private E — 1 Harold L. Southworth, Private E-l Edward L. Westbrook, Private E-l Allen R. Cundy and Private E-l Madelene L. Cintron, trainees” (Specification 1, Charge I); and

e. On 21 December 1979, violating paragraph 5p “by wrongfully socializing with Private E-l Allen R. Cundy, Private E-l Harold L. Southworth, Private E-l Edward L. Westbrook and Private E-l Madelene L. Cintron, trainees” (Specification 10, Charge I).2

Appellant also pleaded guilty to violating Article 92 by being derelict in his duty as charge of quarters “in that he willfully abandoned his post where it was his duty to stay,” leaving it to engage in the sexual intercourse that was the subject matter of Specification 8 of Charge I (c., above).

After determining that the pleas of guilty were provident and hearing evidence in extenuation and mitigation, the military judge sentenced appellant to be reduced to the grade of Private E — 1 and to be discharged from the service with a bad-conduct discharge. The convening authority approved the sentence, thereby vesting our appellate jurisdiction.3

All that the record, exclusive of the allied papers, discloses concerning the circumstances of the offenses comes from appellant’s responses during the plea hearing m which he described to the military judge the factual basis for his pleas of guilty.4

According to appellant, the use of the several trainees for personal purposes occurred when they came to his on-post family quarters and found him cleaning and painting in preparation for a visit by the public authorities who supervised his custody of his children (he being separated from his wife). Sympathetic to his situation, he said, the trainees voluntarily helped him clean and paint the kitchen.

On 20 December, several trainees who had passed through his platoon in the Reception Station (including, we note, two who had helped with the painting in November), came to his quarters for the purpose, he said, of conveying holiday greetings, and, although he warned them of the restrictions, he allowed them to come in. He could not recall how long they had stayed, but conceded that they sat around and talked. Private Cintron, on the other hand, was there at his invitation. They had “developed a friendship,” and she wanted to meet his children. He conceded that he had a drink while the group was there, but failed to recall whether any of his guests did. Appellant depicted the events of 21 December as a mirror image of the events of the day before: The receptees again returned without being invited. They remained an hour and a half. Private Cintron, whom he had brought there, was visit[566]*566ing his children again. He drank a beer, but he said that no one else did. Indeed, so self-serving did appellant’s story become that the military judge inquired particularly of the defense whether it wished to persist in the plea of guilty.

The events of 29 November he depicted as follows: Appellant socialized with Private Pendergrass, for how long he could not say, by sharing a beer with her in the orderly room during his tour of duty as the charge-of-quarters. At another time during the same period of duty he called a female receptee whom he knew and they went to a room across the hall from his duty post and engaged in sexual intercourse.

Before entering appellant’s pleas, trial defense counsel attacked the constitutionality of the Fort Dix regulation, asserting that the regulation was void for vagueness; established an unlawful conclusive presumption that permanent party contacts with receptees or trainees were bad without regard to the particular facts; and violated the “right to associate and right to marry.” Proof was offered that appellant (who was legally separated from his wife and had custody of their two young children) had asked two of the women named in the specifications (Private Cintron and Private Perez, named in other specifications not prosecuted) to marry him. After brief argument by both sides, the military judge denied appellant’s motion to dismiss, stating no reasons.

The constitutional attack is renewed on appeal. Appellant’s Assignment of Error I asserts—

THE FINDINGS OF GUILTY TO SPECIFICATIONS 1, 5, 8, 10, AND 11 OF CHARGE I MUST BE SET ASIDE BECAUSE PARAGRAPH 5(p), FORT DIX REGULATION 600-2 IS UNCONSTITUTIONALLY VOID FOR VAGUENESS AND UNCONSTITUTIONALLY OVER-BROAD.5

His Assignment of Error II urges that the same findings be set aside because the same paragraph violates his right to equal protection under the Fifth Amendment.

I

The appellant’s attack on paragraph 5p of the Fort Dix regulation as an overbroad restriction on speech, freedom of association, and marriage, and on the grounds that it gave no notice his conduct was criminal, fails for several reasons.

First, as to overbreadth, the regulation proscribes conduct, not mere expression.6 For the proper purpose of insulating receptees and trainees from potentially troublesome relationships and influences during their initial indoctrination period, the regulation plainly applied to appellant’s own conduct in engaging in unofficial personal associations with trainees or receptees. Any impact on his freedom of speech was purely incidental, for he was not forbidden from conversing with the receptees or trainees.

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Bluebook (online)
12 M.J. 563, 1981 CMR LEXIS 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hoard-usarmymilrev-1981.