United States v. Lugo

32 M.J. 719, 1991 CMR LEXIS 404, 1991 WL 33069

• Court: U S Coast Guard Court of Military Review
• Decided: March 12, 1991
• Docket: CGCMS 23986; Docket No. 961
• Status: Published

Opinions

BAUM, Chief Judge:

Appellant, after pleading guilty pursuant to a pretrial agreement, was convicted by Special court-martial judge alone, of various offenses under the Uniform Code of Military Justice, (UCMJ), including wrongful use of cocaine and heroin.¹ The judge sentenced appellant to a bad conduct discharge, confinement for five months, and reduction to pay grade E-2. The convening authority approved the bad conduct discharge, confinement for four months, and the reduction to pay grade E-2, which conformed to the terms of the pretrial agreement.

Before this Court, appellant has assigned two errors:

I

THE PROMULGATING ORDER OF THE CONVENING AUTHORITY DOES NOT ACCURATELY REFLECT THE FINDINGS OF THE COURT MARTIAL.

II

A PUNITIVE DISCHARGE MAY NOT BE APPROVED AND EXECUTED UNTIL THE SECRETARY OF TRANSPORTATION IMPLEMENTS PROCEDURES AND PROVIDES FACILITIES TO TREAT AND REHABILITATE APPELLANT FOR HIS DEPENDENCY ON DRUGS AND ALCOHOL.

I

In his first assignment, appellant points out that the convening authority’s special court-martial order erroneously states that appellant pled and was found guilty of absence from place of duty under Article 86, UCMJ, 10 U.S.C. § 886 and wrongful use of morphine under Article 112a, UCMJ. The Government acknowledges this error and has agreed to coordinate any corrective action deemed necessary by the Court. The promulgating order is indeed incorrect, as noted by appellant, and must be modified. Accordingly, a supplementary order shall be issued by appropriate authority in accordance with RCM 1114(b)(2) accurately reflecting the offenses to which appellant pled guilty and was found guilty. Moreover, in issuing the new promulgating order, care shall be taken to comply with the requirements of RCM 1114(c) to correct the additional defects which Judge Bridgman has elaborated upon in his separate opinion. Both Judge Shkor and I join fully with Judge Bridgman’s views concerning this matter as well as all other aspects covered in his opinion. We are all in agreement with the additional errors noted and the appropriate action that follows.

II

In his second assignment, appellant asserts that the sentence should not be approved because of the Coast Guard’s failure to meet its obligation to provide drug and alcohol rehabilitation to appellant under a recently amended U.S.Code provision. Appellant cites Public Law 101-510 of 5 November 1990, the Department of Defense Authorization Act, as amending 10 U.S.C. 1090 to require the Coast Guard to provide rehabilitation to members who are dependent on drugs or alcohol.²

Appellant acknowledges that prior to this amendment, on the date of trial and when the convening authority acted on the sentence, the Coast Guard was not bound to provide the drug treatment and rehabilitation that was required of the other military services. He argues, however, that since appellant is, in fact, drug dependent and is entitled to rehabilitation now, the Coast Guard cannot meet that obligation to appellant merely by discharging him.

As a result, appellant contends that this Court should either not affirm a sentence which includes a bad conduct discharge or, in the alternative, should set aside the findings and sentence approved by the convening authority and return the record for a new action, after the Coast Guard has properly addressed the treatment and rehabilitation of appellant’s drug and alcohol addiction. In short, it is appellant’s position that, since such rehabilitation treatment is required today and appellant has not received it, we cannot affirm the punitive discharge until there is compliance with Congress’s mandate in this regard.

Government Counsel, in responding, notes that appellant does not allege, nor is there any indication that 10 U.S.C. 1090 was intended as a condition precedent to a Court of Military Review approving a bad conduct discharge. Moreover, according to the Government, this court is not the proper forum for review of government compliance with an administrative matter such as drug and alcohol treatment under 10 U.S.C. 1090.

As a general proposition, we agree with that assertion. However, failure to afford an accused drug rehabilitation required by statute may certainly be reviewable by this court if failure to provide such treatment, somehow, impinges on sentence appropriateness or possibly even court-martial due process. U.S. v. Shoup, 31 M.J. 819 (A.F.C.M.R.1990), a case cited by the Government, certainly seems to support this conclusion. Accordingly, we have reviewed the record with this in mind and find no failure of military due process or any effect on sentence appropriateness due to lack of rehabilitation treatment.

In conducting this review, we have judicially noted the amendment of 5 November 1990 to 10 U.S.C. 1090. While there is no evidence in the record establishing whether rehabilitation treatment has or has not been afforded since passage of this amendment, the defense brief asserts there has been none. Accordingly, for purposes of resolving this issue, we have treated appellant’s failure to receive required treatment as fact and have assumed, without deciding, that appellant qualifies in all respects for such treatment in accordance with the statute. Under all the circumstances of this case, despite appellant’s not having received the rehabilitation which he asserts is mandated, we find the sentence appropriate for these offenses and this accused.

It is now up to other appropriate authorities to determine how and when to comply with 10 U.S.C. 1090. Whether the Coast Guard provides treatment to the appellant before his separation from the service, is a matter for determination by those other authorities and does not affect our determination under Article 66, Uniform Code Military Justice, 10 U.S.C. § 866. Rehabilitation treatment may delay the execution of a court imposed discharge that has been affirmed by this Court, or it may bear on clemency deemed warranted by the appropriate authorities tasked with considering such action, but it need not delay our determination whether a particular sentence should be approved.

Those are decisions to make after judicial review is complete. For that reason, the assignment of error is rejected.

We have reviewed the record pursuant to our responsibilities under Article 66, UCMJ. In so doing, we have considered all matters bearing on sentence, including the judge’s recommendation to the convening authority and other post-sentencing submissions to that authority and this Court. We have concluded that the sentence approved by the Convening authority is correct in law and fact and should be approved. In reaching this conclusion, we have applied the analysis set out in Judge Bridgman’s separate opinion. The findings and sentence approved below are affirmed.

1 . The offenses of which appellant stands convicted are: one specification of failure to obey a lawful order; one specification of unauthorized sale of military property; two specifications of wrongful use of cocaine; and one specification of wrongful use of heroin in violation respectively of Articles 92, 108 and 112a of the UCMJ, 10 U.S.C. §§ 892, 908, 912a. The judge considered the heroin use specification and one of the cocaine use specifications as multiplicious for findings and sentencing purposes. Accordingly, although he found the accused guilty of each separate specification, the judge treated the two as a single use of controlled substances.

2 . 10 U.S.C. 1090, as amended, reads as follows: “The Secretary of Defense, and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations, implement procedures using each practical and available method, and provide necessary facilities to identify, treat, and rehabilitate members of the armed forces who are dependent on drugs or alcohol.” 10 U.S.C. 1090 as amended by P.L. 101-510, sec. 553.