United States v. Johnson

12 C.M.A. 710, 12 USCMA 710, 31 C.M.R. 296, 1962 CMA LEXIS 250, 1962 WL 4416

Opinions

Opinion of the Court

QUINN, Chief Judge:

On his plea of guilty, the accused was convicted by a special court-martial of unauthorized absence of sixteen days and failure to obey an order, in violation of Articles 86 and 92 of the Uniform Code of Military Justice, 10 USC §§ 886, 892. A board of review set aside the finding of guilty of the order offense on the ground there was an improper amendment of the specification. It set aside the plea of guilty to the absence offense because the president failed to advise the court members that conviction therefor subjected the accused to a punitive discharge, if evidence was received of two or more previous convictions. Under the provisions of Article 67 (b) (2) of the Uniform Code, supra, § 867, The Judge Advocate General of the Navy has asked this Court to review the correctness of both aspects of the board of review’s decision.

The specification of Charge II, on which the accused was arraigned, alleged that he failed to obey an order to report to the Commanding General, 2d Marine Division, Camp Lejeune, which order it was his duty to obey. The specification further alleges that the order was issued by the commanding officer, Marine Barracks, U. S. Naval Base, Brooklyn, New York. The accused entered a plea of guilty and the plea was accepted after he indicated he understood its meaning and effect and that he was entering it “freely and voluntarily.” However, when the president enumerated the elements of the offense in his instructions to the court-martial, the following colloquy occurred :

“DC: The defense would like to enter a stipulation at this point, in that when you read the charges here of the elements of the offenses, I noticed here, that the accused received a lawful order issued by the Commanding Officer, Marine Barracks, U. S. Naval Base, Brooklyn, Is it not so ?

“PRES: That is correct.

“DC: That is a mistake. The order was issued by Commanding Officer, Marine Barracks, U. S. Naval Base, Boston, Massachusetts.

“(The service record book of the accused was shown to the president to support this stipulation.)

“Pres : Would the trial counsel correct the specification under Charge II.

“TC: The prosecution accepts the stipulation and corrects the charge. The president: make a change to my instruction in that the order was issued by Commanding Officer, Marine Barracks, U. S. Naval Base, Boston, Massachusetts.

“Pres: The reporter will note for the record that the Specification of Charge II was corrected.

“DC: Other then [sic] that I have no other modification to offer at this time.”

In United States v Brown, 4 USCMA 683, 16 CMR 257, we pointed out that a specification may be amended if the change does not result (1) in a different offense or in the allegation of an additional or more serious offense, or (2) in raising a substantial question as to the statute of limitations, or (3) in misleading the accused. Permissible changes may be made by trial counsel or the court at any time before the findings. Manual for Courts-Martial, United States, 1951, paragraphs 44/, 69b. These requirements substantially accord with those of Rule 7 (e), Federal Rules of Criminal Procedure, which authorizes amendment of an information “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” See United States v Squirrell, 2 USCMA 146, 7 CMR 22. Applying these rules to the instant case, it is immediately apparent the accused was not misled by the amendment. The defense itself raised the issue and stipulated to the change. Since the date of the alleged violation of the order remained the same, there is no question affecting the statute of limitations. However, discerning “no essential difference” between the nature of the amendment effected here, and the determination in United States v Marsh, 3 USCMA 48, 11 CMR 48, that there was a fatal variance between the allegation and the proof, the board of review concluded the change resulted in a different offense. See also United States v Jones, 8 CMR . The board of review erred in this conclusion.

The situation in the Marsh case is significantly different from that in the instant case. In Marsh, the accused was tried for willful disobedience of the direct order of Captain Sikes, his superior officer. The Government, however, introduced evidence of an order issued by Lieutenant General Hodge. We held there was a fatal variance between the allegation and the proof, and set aside the findings of guilty. Here, the charge is merely that the accused failed to obey an order it was his duty to obey. No personal element colors and permeates the order, as is the case in a charge of willful disobedience of a direct order. Put differently, the offense of failure to obey a lawful order is only incidentally concerned with the person issuing the order; the emphasis is on the existence of the order, the accused’s knowledge of it, and a duty to obey its terms. Thus, the offense is materially different from willful disobedience, in that it does not have the “personal” element of the latter offense. We pointed out this distinguishing characteristic in United States v Keith, 3 USCMA 579, 13 CMR 135. We there said: “Where the two offenses are compared in the light of the Code and the Manual, it is readily apparent that the difference between them finds its roots in the personalized nature of the transaction.” It is sufficient under Article 92 that the order be “issued by a member of the armed forces.” Whether A or B issues the order is, in the usual case, immaterial. We realize, of course, that different persons and different commanders possess varying powers, so that in some situations, perhaps, it might mislead the accused to change the name of the authority issuing the order. See United States v Marsh, supra; United States v Matthews, 8 USCMA 94, 23 CMR 318. But that possibility is not, as we observed earlier, present in this case. Manifestly, therefore, substitution of the title of the issuing authority did not make the offense different from that alleged, and did not, in the circumstances disclosed in this record of trial, prejudice the accused in any way. See United States v Craig, 8 USCMA 218, 24 CMR 28. Accordingly, we answer in the negative the first certified question, which asks whether the board of review was correct in disapproving the finding of guilty of the order charge.

Our answer to the first certified issue makes it unnecessary to consider the second, which is dependent upon it. We return the record of trial to The Judge Advocate General of the Navy for submission to the board of review for reconsideration in the light of this opinion.

Judge Kilday concurs.