United States v. Lugo

54 M.J. 558, 2000 CCA LEXIS 287
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedSeptember 25, 2000
DocketNMCM 200000209
StatusPublished
Cited by2 cases

This text of 54 M.J. 558 (United States v. Lugo) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lugo, 54 M.J. 558, 2000 CCA LEXIS 287 (N.M. 2000).

Opinion

LEO, Senior Judge:

In accordance with his pleas, the appellant was convicted at a special court-martial before a military judge alone of violating a lawful general order and stealing military property, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. He was awarded a bad-conduct discharge, confinement for 100 days, forfeiture of $600 pay per month for four months, and reduction to pay grade E-l. In accordance with the pretrial agreement, the convening authority approved the sentence as adjudged, but suspended all confinement in excess of 60 days for a period of 12 months from the date of the sentence.

We have examined the record of trial, the assignments of error, and the Government’s response. We find that the assignments of error are without merit, that the findings and sentence are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

I.

The appellant contends that the general order prohibiting male Marines from wearing earrings fails to state an offense because (1) it does not reasonably relate to military duty and (2) it violates the Equal Protection Clause of the Fourteenth Amendment, as applied to the United States through the Due Process Clause of the Fifth Amendment. We disagree.

The appellant is charged with violating an order' that is part of the United States Marine Corps Uniform Regulations, Marine Corps Order P1020.34F, Chapter 1, ¶ 1005.7(a) of 27 January 1995; it expressly prohibits male Marines from wearing earrings. During the providence inquiry, the appellant admitted that he violated the order on 2 April 1999, by wearing a gold hoop earring in each ear while he was on board Marine Corps Air Station, New River in Jacksonville, North Carolina. He was stopped at the entrance door as he attempted to enter the Enlisted Club and was told by a staff sergeant to remove the earrings. The appellant admitted that he was aware of the general order, that he had an ongoing duty to obey it 24-hours a day due to his military status, and that he had willfully disobeyed it. Record at 33-36.

To be lawful, a military order “must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service.” Manual for Courts-Martial, United States (1998 ed.), Part IV, ¶ 14.c.(2)(a)(iii). “A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.” MCM, Part IV, ¶ 16.c.(1)(c). Because a properly issued general order is presumed to be lawful, the burden is upon the appellant to establish that the order in question is unlawful. United States v. Hughey, 46 M.J. 152, 154 (1997).

In the first part of his argument, the appellant asserts that the order prohibiting male Marines from wearing earrings goes beyond “those lawful regulations [limiting] hair length and the wearing of wigs” and constitutes “an unreasonable interference with the private rights and personal affairs of individual Marines.” Appellant’s Brief of 30 June 2000 at 3-4 (emphasis added).

We reject this argument. It is inconsistent with the very nature of military service. “The essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.’ ” Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986)(quoting Orloff v. Willoughby, 345 U.S. 83, 92, 73 S.Ct. 534, 97 L.Ed. 842 (1953)). In Goldman, the issue before the Supreme Court was whether an Air Force officer, who was also an ordained rabbi, had a First Amendment right to the free exercise of his religious beliefs by wearing his yarmulke while in uniform, a practice which he described as “silent devotion akin to prayer.” Id. at 509, 106 S.Ct. 1310. The Supreme Court stated, “In the context of the present case, when evaluating [560]*560whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Id. at 507, 106 S.Ct. 1310 (emphasis added).

We believe the military interest is no less important with respect to restrictions on the types of civilian apparel and jewelry that can be worn on liberty by Marine Corps personnel. As the Uniform Regulations explain:

“Marines are associated and identified with the Marine Corps in and out of uniform, and when on or off duty. Therefore, when civilian clothing is worn, Marines will ensure that them dress and personal appearance are conservative and commensurate with the high standards traditionally associated with the Marine Corps. No eccentricities of dress will be permitted.”

Marine Corps Order P1020.34F, Chapter 1, ¶ 1005.7(a) (emphasis added).

The purpose of these restrictions is to ensure that off-duty Marines do not dress in extreme or eccentric civilian attire that detract from the public “spit-and-polish” image of the United States Marine Corps and the good order and discipline of its personnel. We find nothing improper here.1 Congressional recognition of the importance of public confidence and trust in the armed forces, in particular, is apparent in the General Article of the UCMJ, which proscribes, among other things, “all conduct of a nature to bring discredit upon the armed forces.” Art. 134, UCMJ, 10 U.S.C. § 934.

We, likewise, reject the second part of the appellant’s argument. The Equal Protection Clause of the Fourteenth Amendment is “implicit” in the Due Process Clause of the Fifth Amendment and is, therefore, applicable to military courts-martial. United States v. Houston, 12 M.J. 907, 909 n. 2 (N.M.C.M.R.1982); United States v. Sykes, 11 M.J. 766, 768 (N.M.C.M.R.1981). However, the Supreme Court declared, “The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment.” Goldman, 475 U.S. at 509, 106 S.Ct. 1310. We believe this principle is applicable to civilian attire, as well as uniforms, worn by Marine Corps personnel. While the Uniform Regulations make a gender-based distinction that restricts male Marines, but not female Marines, from wearing earrings, there exists a rational basis for this restriction that is reasonably related to the legitimate governmental objectives of good order and discipline.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Latour
75 M.J. 723 (Navy-Marine Corps Court of Criminal Appeals, 2016)
United States v. Terry
61 M.J. 721 (Navy-Marine Corps Court of Criminal Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
54 M.J. 558, 2000 CCA LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lugo-nmcca-2000.