United States v. Perl

2 M.J. 1269, 1976 CMR LEXIS 903
CourtU.S. Army Court of Military Review
DecidedFebruary 27, 1976
DocketSPCM 10425
StatusPublished
Cited by8 cases

This text of 2 M.J. 1269 (United States v. Perl) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Perl, 2 M.J. 1269, 1976 CMR LEXIS 903 (usarmymilrev 1976).

Opinions

OPINION OF THE COURT

O’DONNELL, Judge:

The appellant was convicted of a six-day unauthorized absence (Charge I), disrespect to a superior noncommissioned officer (Charge II), communicating a threat (Charge III), and disrespect to a superior commissioned officer (Charge IV). The [1271]*1271court sentenced him to be discharged from the service with a bad-conduct discharge, to forfeit two-thirds pay per month for three months, and to be confined at hard labor for three months. The convening authority disapproved the unauthorized absence charge. He approved the remaining charges and specifications and modified the sentence as set forth above.

The appellant has raised several deficiencies in the trial, three of which merit discussion.

I — COMPOSITION OF COURT-MARTIAL

The appellant was tried at a time when the convening authority was implementing an experimental program for the selection of court members on a random basis. The appellant contends that certain defects in this selection process resulted in an improperly constituted court. Our recent decision in United States v. Yager, 2 M.J. 484 (A.C.M.R.1975), disposes of the appellant’s contention that enlisted members of the two lowest grades were improperly excluded from membership on the court.

The appellant’s alternative attack on the composition of the court deals not with the validity of the program itself but with the application of certain provisions of the implementing circular. Pertinently, the circular provides that eight-member panels will be selected for trials by special court-martial and that if the accused requests enlisted persons, at least four of the members will be enlisted. The relevant provisions of the circular are set forth in the margin.1

Before trial, the appellant asserted his right to be tried by a court with members and specified further that “at least one third ... of the members seated be enlisted personnel. . . . ” The convening authority thereafter convened a court-martial consisting of six members, three of whom were enlisted men. At trial, the appellant, through his defense counsel, indicated to the military judge that he was satisfied that the court as constituted complied with Article 25 of the Code, 10 U.S.C. § 825. The appellant expressed no other objection to the composition of the jury and exercised no challenges.2

The appellant now contends that the court-martial panel in his case was deficient in two regards — it lacked the requisite total of eight members and failed to include four enlisted persons. Thus, according to the appellant, even though the selection of the court members complied with the Uniform Code of Military Justice, it failed to comport with the more stringent local regulation and therefore resulted in an improperly constituted court.

The oft-cited principle that the Government must adhere to its own regulations has application to the military. It has been successfully invoked by the accused in the area of enlistment regulations,3 as to procedural requirements for activation of reservists,4 and most recently concerning pretrial delay.5 In measuring the effect of the Government’s failure to follow its own regulations, it is necessary to determine the purpose of the regulation. The Court of Military Appeals in United States v. Russo, 23 U.S.C.M.A. 511, 512, 50 C.M.R. 650, 651,1 M.J. 134, 135 (1975), stated that it is “well-[1272]*1272settled that a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests.” However, if the regulation is adopted for the benefit of the particular government agency in transacting its business and is not designed to confer important rights upon individuals, a person cannot complain of deviations from the regulation except upon a showing of substantial prejudice. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L. Ed.2d 547 (1970); National Labor Relations Board v. Monsanto Chemical Company, 205 F.2d 763 (8th Cir. 1953).

We are convinced that the regulation under attack was promulgated for the benefit of the Government and was not intended to confer any basic rights on accused persons. The provision for an eight-man panel with four enlisted persons was unquestionably designed to avoid the administrative problems that would arise if, by reason of absences or challenges, the court were to be reduced below the statutory requirement of three members and one-third enlisted personnel. See Articles 16 and 25(c)(1), Code, supra. The appellant has presented nothing to indicate how he was harmed by the failure to comply with the regulation in this case. Our examination of the record of trial produces a similar result.6 In the absence of prejudice, no remedial action is required. Article 59(a), Code, supra. Moreover, the appellant effectively waived any defect in the selection of the court not only by failing to object but by affirmatively stating that he was satisfied that the court had been appointed in compliance with Article 25 of the Code. See United States v. Crawford, 15 U.S.C. M. A. 31, 35 C.M.R. 3 (1964).

II-PROVIDENCY OF PLEA

The appellant attempted to enter pleas of guilty to three of the four charges of which he was ultimately convicted. The military judge, however, accepted his plea only to that charge alleging disrespect to a noncommissioned officer (Charge II). The appellant now contends that this plea was improvident. The military judge failed to comply precisely with the mandate of United States v. Care, 18 U.S.C.M.A. 535, -40 C.M.R. 247 (1969), in that he neglected to inform the'appellant of the maximum sentence which could be adjudged for the offense to which he desired to plead guilty (confinement at hard labor for three months and forfeiture of two-thirds pay per month for three months). See paragraph 70b, Manual for Courts-Martial, United States, 1969 (Revised edition). Under the facts of this case, to include the number of charges to which the appellant pleaded not guilty, the relatively light maximum sentence for the offense to which he pleaded guilty, and the jurisdictional limit on sentence inherent in a special court-martial, we find that the failure to comply with Care did not affect the providency of the appellant’s plea. Cf. United States v. DePuis, 48 C.M.R. 49 (A.C.M.R.1973); United States v. Smith, 1 M.J. 260 (1976). To the extent that United States v. Colby, 44 C.M.R. 477 (A.C.M.R.1971), and United States v. Al-ward, 41 C.M.R. 611 (A.C.M.R.1969), stand for a per se rule, we decline to follow those decisions.

Ill — OTHER ACTS OF MISCONDUCT

Before findings, the trial counsel moved the admission of a letter which the appellant had sent to his battalion commander while he was in pretrial confinement in the post stockade.

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