United States v. Noriega

7 C.M.A. 196, 7 USCMA 196, 21 C.M.R. 322, 1956 CMA LEXIS 244, 1956 WL 4586

• Court: United States Court of Military Appeals
• Decided: June 29, 1956
• Docket: No. 8012
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A special court-martial convicted the accused of several offenses, in violation of the Uniform Code of Military Justice, and imposed a sentence which includes a bad-conduct discharge. Intermediate appellate authorities modified the findings of guilty, but affirmed the adjudged sentence. We granted review to consider whether the evidence is sufficient to support Charge I which alleges disrespect toward a superior officer.

Lieutenant Tipton, the transportation officer of the accused’s squadron, called the enlisted personnel together for a “little briefing” in regard to a party for them. There is some disagreement as to the substance of the Lieutenant’s talk. According to one witness, they were instructed to “go down and get drunk and have a good time”; another witness testified that they were told that they were “not to drink so much they couldn’t control themselves and so forth.” The Lieutenant himself did not testify. In any event, the party was held in the officer’s club.

At the party, the Lieutenant appeared as the bartender. He worked stripped to the waist, and he served the beer as fast as he could. In the course of the evening the accused, who mixed whiskey with his beer, became aggressive and threatening. His conduct at this stage led to one of the other charges against him. Airmen Doster and Gibson thereupon started to take the accused to his barracks to keep him out of further trouble. However, they were stopped by Lieutenant Tipton and ordered to “Let him get a couple more drinks.”

After a time the accused appeared at the bar. He raised his hands in a fighting pose and said, “Hey, Tip, let’s fall out on the green.” Lieutenant Tipton walked away without rejoinder.

Under Article 89, Uniform Code of Military Justice, 50 USC § 683, it is an offense for any person subject to the Uniform Code to behave “with disrespect toward his superior officer.” In discussing the intendment of the Article, the Manual notes that “Disrespect by words may be conveyed by approbrious epithets or other contemptuous or denunciatory language. Disrespect by acts may be exhibited in a variety of modes — as neglecting the customary salute, by a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the presence of the superior officer.” Manual for Courts-Martial, United States, 1951, paragraph 168.

It would seem that Lieutenant Tipton did not personally regard the accused’s conduct or words as objectionable. He walked away without any remonstrance, and he did not appear at the trial to testify against the accused. Although not decisive, this is a circumstance to be considered with the others. These show that, in effect, the Lieutenant ordered the accused to get drunker than he was; he was stripped to the waist and served the drinks to the party participants as fast as he could. In appearance and in conduct, therefore, he was simply a bartender. Under these circumstances, the accused’s comic opera John L. Sullivan stance and invitation to fall out “on the green” did not, as a matter of law, detract from the authority and the person of Lieutenant Tipton within the meaning of Article 89. Accordingly, the findings of guilty of Charge I and its specification are set aside and the charge is ordered dismissed.

The record of trial is returned to The Judge Advocate General of the Air Force for submission to a board of review for reassessment of a legal and appropriate sentence on the basis of the modified findings of guilty of specification 1, Charge II.

Judge Ferguson concurs.