United States v. McClain

10 M.J. 271, 1981 CMA LEXIS 16392

Opinions

OPINION OF THE COURT

PER CURIAM:

We have granted review (9 M.J. 52) of appellant’s general court-martial¹ to consider the following matter:

WHETHER THE CONVICTION FOR ATTEMPTING TO BORROW MONEY IN VIOLATION OF ARTICLE 92, UCMJ, MUST FALL, IN THAT FORT JACKSON REGULATION 600-3, DATED 31 JANUARY 1978, PROSCRIBES PERSONAL ACTIVITY WHICH IS NOT THE PROPER SUBJECT OF GOVERNMENTAL REGULATION.

The appellant in this case was the driver for the commander of Company A, 1st Battalion, 1st Basic Training Brigade, at Fort Jackson, South Carolina, and as such was part of the permanent personnel. On February 28, 1978, while on duty with two trainees, the appellant solicited from each a loan of $100 in order to purchase an automobile. Both agreed, but requested a receipt. One of the trainees attempted to obtain the commander’s signature as a witness, which started the events leading to this prosecution.

We believe this case is governed by the rule laid down in United States v. Smith, 1 M.J. 156 (C.M.A.1975). We have long “upheld convictions for violating orders or regulations where a sufficient connection between the military’s duty to protect the morale, discipline and usefulness of its members and the infringement of an individual’s rights has been established.” Id. 157-58 (footnote omitted). Smith recognized the principle involved here, that “the military has a legitimate concern in prohibiting . . . loans between subordinates and superiors.” Id. at 158.

The decision of the United States Army Court of Military Review is affirmed.

Footnotes

1

. Tried at Fort Jackson, South Carolina, by general court-martial with members, appellant was found guilty, contrary to his pleas, of rape and two specifications of attempting to violate a lawful general regulation, in violation of Articles 120 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 920 & 892, respectively. His sentence included a bad-conduct discharge, confinement at hard labor for 4 years and total forfeitures. The convening authority approved the sentence, and the United States Army Court of Military Review affirmed the approved findings and sentence.