United States v. Nardell

21 C.M.A. 327, 21 USCMA 327, 45 C.M.R. 101, 1972 CMA LEXIS 769, 1972 WL 14133
CourtUnited States Court of Military Appeals
DecidedApril 21, 1972
DocketNo. 24,650
StatusPublished
Cited by29 cases

This text of 21 C.M.A. 327 (United States v. Nardell) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Nardell, 21 C.M.A. 327, 21 USCMA 327, 45 C.M.R. 101, 1972 CMA LEXIS 769, 1972 WL 14133 (cma 1972).

Opinion

Opinion of the Court

DARDEN, Chief Judge:

Guilty findings on charges alleging two violations of the Uniform Code of Military Justice and a sentence consisting of a bad-conduct discharge, confinement at hard labor for six months, a $500 fine, forfeiture of $125 per month for six months, and reduction in grade remain in force against the appellant at this stage of appeal. This Court granted review to consider the contention that Charge I and its specification do not allege an offense.

Relative to the granted issue, the record contains evidence that in June and July 1970, Nardell was assigned as the assistant manager of a staff noncommis-sioned officers’ club in Da Nang, Republic of Vietnam, and that he played the club’s slot machines while assigned to such duty.

In material part, the single specification under Charge I reads:

“. . . In that Staff Sergeant Gerald P. NARDELL, ... did at the Marine Aircraft Group Sixteen Staff Non Commissioned Officers Club, Marble Mountain Air Facility, DaNang, Republic of Vietnam, during the months of June and July 1970, violate a lawful general order, to wit: paragraph 301.4c of Wing Order P1746.6C First Marine Aircraft Wing, dated 3 March 1970, by playing club slot machines while on duty as the manager of Marine Aircraft Group Sixteen Staff Non Commissioned Officers Club.”

Wipg Order P1746.6C, issued by the Commanding General, 1st Marine Aircraft Wing, Fleet Marine Force, Pacific, and entitled “Standing Operating Procedure (SOP) for the Clubs and Mess System” is set out in part below:

“Ref: (a) CMC msg 031923Z Sep 65 (NOTAL)
(b) CMC Itr DSQ-ded of 11 Oct 65 (NOTAL)
(c) MCO P1746.13-
(d) NAVSO P-2409
“1. Purpose. To establish a Standing Operating Procedure for the clubs and mess system of the 1st Marine Aircraft Wing, to include: the Enlisted Club, the Staff Non-commissioned Officers’ Club, the Commissioned Officers’ Mess (Open), and the Central Service Agency.
“3. Background
“a. References (a) and (b) authorized the establishment of a 1st Marine Aircraft Wing Club and Mess System. References (c) and (d) prescribe regulations, procedures and financial control measures for operation of nonappropriated fund clubs and messes under the cognizance of the Commandant of the Marine Corps.
“c. Subject to the above references and other directives as may be issued [329]*329by competent authority, the Commanding General is charged with the responsibility for operation of messes, clubs and miscellaneous non-appropriated fund activities in this command.
“4. Action. Commanding Officers who have authorized branch clubs of of the 1st Marine Aircraft Wing System established in their area of responsibility will ensure compliance with the provisions of this SOP by personnel assigned to the branches and related staff personnel. All personnel assigned duties in connection and administration of the clubs and messes shown in paragraph 1 will be governed by the provisions in references (c) and' (d) and this order.
“5. Recommendation. Comments and recommendations relative to this SOP are invited and should be forwarded in writing to the Commanding General, 1st Marine Aircraft Wing, attention Wing Clubs Officer.
“6. Applicability. This order is applicable to all units of the 1st Marine Aircraft Wing and to all clubs or mess facilities of the 1st Marine Aircraft Wing Clubs System.”

Paragraph 301.4, “EXCERPT OF WING ORDER P1746.6C,” has a sub-paragraph captioned “GAMING AND AMUSEMENT DEVICE OPERATIONS.” Section c of this subparagraph covers the eligibility of players in the following language:

“c. ELL1GIBILITY [sic] OF PLAYERS. All members of the appropriate component club syster [sic] are eligible to play slot machines except minors and clubs and messes employees while in a duty status. Guests, defined as any person other than U. S. Armed Forces personnel and technical representatives authorized full club privileges, are pormitted [sic] to play, however, the host shall sign for any jackpot won.”

No single characteristic of a general order determines whether it applies punitively to members of a command. This Court’s decisions have established general standards that such an order must meet before a member of the armed forces without actual notice of its provisions can be punished for violating it. The order in its entirety must demonstrate that rather than providing general guidelines for the conduct of military functions it is basically intended to regulate conduct of individual members and that its direct application of sanctions for its violation is self-evident. United States v Hogsett, 8 USCMA 681, 25 CMR 185 (1958); United States v Baker, 18 USCMA 504, 40 CMR 216 (1969); cf. United States v Benway, 19 USCMA 345, 41 CMR 345 (1970). If the order requires implementation by subordinate commanders to give it effect as a code of conduct, it will not qualify as a general order for the purpose of an Article 921 prosecution. United States v Tassos, 18 USCMA 12, 39 CMR 12 (1968), and United States v Woodrum, 20 USCMA 529, 43 CMR 369 (1971).

The record indicates that the referenced authorities for Wing Order 1746.6C are so voluminous that their complete reproduction was impractical. Introductory pages from references MCO P1746.13B and NAVEXOS P-2409 indicate, however, that the former concerns a “Manual for Clubs and Messes” that “is published for instruction and guidance pursuant to governing laws and regulations, and is applicable to subject activities under the management control of the Commandant of the Marine Corps.” The latter relates to instructions that “apply to and are issued for the information, guidance, and compliance of all personnel administering or accounting for nonappropriated funds classified as government instrumental-ities.”

Wing Order P1746.6C, the “purpose” of which is the establishment of a [330]*330standing operating procedure is, consistent with those references, broad in its guidance.

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Cite This Page — Counsel Stack

Bluebook (online)
21 C.M.A. 327, 21 USCMA 327, 45 C.M.R. 101, 1972 CMA LEXIS 769, 1972 WL 14133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nardell-cma-1972.