Opinion of the Court
GEORGE W. LatimeR, Judge:
Upon his pleas of guilty, accused was convicted by general court-martial of violating a lawful general order, and a breach of restriction, in contravention of Articles 92 and 134, Uniform Code of Military Justice, 10 USC §§ 892 and 934, respectively. He was sentenced to bad conduct discharge, total forfeitures, and confinement at hard labor for nine months, and the convening authority approved. The board of review affirmed the findings, but found the sentence to be excessive as a matter of law, and accordingly reduced it to partial forfeitures and confinement at hard labor for two months. Thereafter, the Acting The Judge Advocate General of the Army certified the case to this Court for determination of the following issue:
“Was the board of review correct in concluding as a matter of law that the applicable maximum punishment for violating the lawful general order under Charge II (by visiting Mexico without possessing required military documents) was that prescribed for a breach of restriction in violation of Article 134, Uniform Code of Military Justice?”
He also remitted so much of the accused’s sentence as exceeded that affirmed by the board of review. Subsequently, accused cross-petitioned this Court and we granted review of this additional issue:
“Whether the specification of Charge II alleges an offense in violation of Article 92(1).”
Both issues before us involve the Article 92 offense, and because accused pleaded guilty, we are concerned solely with the specification laid thereunder. It alleges criminal misconduct in the following language:
“In that . . . [accused] did, at Naco, Sonora, Mexico, on or about 20 December 1958, violate a lawful general order, to wit: Paragraph lb [172]*172(2), Section XV, Post Regulations, U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, dated 1 November 1957, Change Nr. 2, dated 15 May 1958, by visiting Naco, Sonora, Mexico, without having in his possession a properly issued Armed Forces Liberty Pass, DD Form 345, bearing on the reverse side ‘Authorized to visit Mexico’, countersigned by the accused’s commanding officer authorizing the accused to visit the Republic of Mexico.”
The specification being couched in language which alleges a violation of a lawful general order — namely, a post regulation of the U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona — the answer to the granted issue must turn on whether that command was qualified, within the meaning of Article 92(1), to promulgate general orders and regulations. Indeed, at trial, individual defense counsel raised this very question upon accused’s arraignment by a motion for appropriate relief, contending that the command did not have the requisite authority. The law officer, however, ruled adversely to the defense, and for the reasons hereinafter developed we conclude his action was correct.
In many cases this Court has had occasion to consider whether various commands were competent to promulgate general orders and regulations which could be used to support a conviction carrying a maximum sentence of two years’ confinement. While our opinions have not always been unanimous, the principles bearing on that question have been developed at some length, so we need only determine whether the command with which we are presently concerned meets the tests the Court has previously prescribed.
The regulation was not merely the order of a company commander. United States v Brown, 8 USCMA 516, 25 CMR 20. Rather, it emanated from the level of a “post, ship, or station,” United States v Snyder, 1 USCMA 423, 4 CMR 15; United States v Wade, 1 USCMA 459, 4 CMR 51; and there is no indication that superior authority had restricted issuance of general orders by the command, United States v Bunch, 3 USCMA 186, 11 CMR 186. The missions and functions of the U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, as established and prescribed in Army Regulations 10-72, July 30, 1957, demonstrate beyond peradventure its important and substantial position in effectuating the mission of the Army. United States v Brown, supra. The commanding officer with whom we are concerned in this instance is a general officer, and we note that he exercises general court-martial jurisdiction. United States v Tinker, 10 USCMA 292, 27 CMR 366; United States v Keeler, 10 USCMA 319, 27 CMR 393; United States v Ochoa, 10 USCMA 602, 28 CMR 168. Additionally, Class II installations are those under the command of the head of a Headquarters, Department of the Army agency. Army Regulations 10-50, May 25, 1959, paragraph 2i (which supersedes Army Regulations 10-50, June 21,1957 — see paragraph 2h thereof). The U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, is a Class II installation and activity, under the jurisdiction of the Chief Signal Officer. Paragraphs II and III, Department of the Army General Orders No. 2, January 14, 1954. And that officer is a member of the Army Staff at the Department of the Army level which is immediately under the direction and control of the Secretary of the Army. 10 USC §§ 3031, 3032, and 3036. See also Army Regulations 10-5, May 22, 1957, paragraphs 18, 49, and 53. Thus it is apparent that the command is not “many steps ‘removed’ from” Department of the Army level, but, rather, is closely connected therewith. See United States v Keeler, supra, and United States v Ochoa, supra.
Accordingly, we are satisfied that the command herein concerned possesses the qualities indicative of and meets all existing tests this Court has previously spelled out for “major commands” competent to promulgate general or[173]*173ders. Thus, the assigned error must be resolved against accused.
Because the tenor of the dissenting opinion suggests that we have ignored the realities of Army organization and missed certain pertinent regulations in resolving this issue, we turn our attention to the suggestions therein which contend for a conclusion contrary to that we reach. Principally those contentions are, first, that Fort Huachuca is not closely connected with Department of Army level, and, second, that in any event, regulations have stripped the commanding officer in question of authority to promulgate the order accused pleaded guilty to violating. Both arguments find their roots in the belief that jurisdiction is in fact exercised over Fort Huachuca by the Commanding General, Sixth United States Army. That approach overlooks the complete text of applicable regulations and the responsibility of the Commanding General of the Fort. Lest there be confusion, we note parenthetically that the officer who issued the regulation is not the Chief Signal Officer and, of course, as commander of both the installation and the facility there located, he has command responsibility. Moreover, if we are to consider regulations apparently vesting some authority in Zone of Interior army commanders, we deem it appropriate to pay heed to all their provisions. Paragraph 6e of Army Regulations 10-50, June 21, 1957, states that Zone of Interior army commanders will:
“Prescribe and enforce off-post military regulations within their respective geographical areas. In specifically designated areas in the vicinity of class II installations, local jurisdiction responsibility may be delegated by mutual agreement between the head of the Headquarters, Department of the Army agency and the Zone of Interior army commander concerned. See AR 380-430.”
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
GEORGE W. LatimeR, Judge:
Upon his pleas of guilty, accused was convicted by general court-martial of violating a lawful general order, and a breach of restriction, in contravention of Articles 92 and 134, Uniform Code of Military Justice, 10 USC §§ 892 and 934, respectively. He was sentenced to bad conduct discharge, total forfeitures, and confinement at hard labor for nine months, and the convening authority approved. The board of review affirmed the findings, but found the sentence to be excessive as a matter of law, and accordingly reduced it to partial forfeitures and confinement at hard labor for two months. Thereafter, the Acting The Judge Advocate General of the Army certified the case to this Court for determination of the following issue:
“Was the board of review correct in concluding as a matter of law that the applicable maximum punishment for violating the lawful general order under Charge II (by visiting Mexico without possessing required military documents) was that prescribed for a breach of restriction in violation of Article 134, Uniform Code of Military Justice?”
He also remitted so much of the accused’s sentence as exceeded that affirmed by the board of review. Subsequently, accused cross-petitioned this Court and we granted review of this additional issue:
“Whether the specification of Charge II alleges an offense in violation of Article 92(1).”
Both issues before us involve the Article 92 offense, and because accused pleaded guilty, we are concerned solely with the specification laid thereunder. It alleges criminal misconduct in the following language:
“In that . . . [accused] did, at Naco, Sonora, Mexico, on or about 20 December 1958, violate a lawful general order, to wit: Paragraph lb [172]*172(2), Section XV, Post Regulations, U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, dated 1 November 1957, Change Nr. 2, dated 15 May 1958, by visiting Naco, Sonora, Mexico, without having in his possession a properly issued Armed Forces Liberty Pass, DD Form 345, bearing on the reverse side ‘Authorized to visit Mexico’, countersigned by the accused’s commanding officer authorizing the accused to visit the Republic of Mexico.”
The specification being couched in language which alleges a violation of a lawful general order — namely, a post regulation of the U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona — the answer to the granted issue must turn on whether that command was qualified, within the meaning of Article 92(1), to promulgate general orders and regulations. Indeed, at trial, individual defense counsel raised this very question upon accused’s arraignment by a motion for appropriate relief, contending that the command did not have the requisite authority. The law officer, however, ruled adversely to the defense, and for the reasons hereinafter developed we conclude his action was correct.
In many cases this Court has had occasion to consider whether various commands were competent to promulgate general orders and regulations which could be used to support a conviction carrying a maximum sentence of two years’ confinement. While our opinions have not always been unanimous, the principles bearing on that question have been developed at some length, so we need only determine whether the command with which we are presently concerned meets the tests the Court has previously prescribed.
The regulation was not merely the order of a company commander. United States v Brown, 8 USCMA 516, 25 CMR 20. Rather, it emanated from the level of a “post, ship, or station,” United States v Snyder, 1 USCMA 423, 4 CMR 15; United States v Wade, 1 USCMA 459, 4 CMR 51; and there is no indication that superior authority had restricted issuance of general orders by the command, United States v Bunch, 3 USCMA 186, 11 CMR 186. The missions and functions of the U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, as established and prescribed in Army Regulations 10-72, July 30, 1957, demonstrate beyond peradventure its important and substantial position in effectuating the mission of the Army. United States v Brown, supra. The commanding officer with whom we are concerned in this instance is a general officer, and we note that he exercises general court-martial jurisdiction. United States v Tinker, 10 USCMA 292, 27 CMR 366; United States v Keeler, 10 USCMA 319, 27 CMR 393; United States v Ochoa, 10 USCMA 602, 28 CMR 168. Additionally, Class II installations are those under the command of the head of a Headquarters, Department of the Army agency. Army Regulations 10-50, May 25, 1959, paragraph 2i (which supersedes Army Regulations 10-50, June 21,1957 — see paragraph 2h thereof). The U. S. Army Electronic Proving Ground, Fort Huachuca, Arizona, is a Class II installation and activity, under the jurisdiction of the Chief Signal Officer. Paragraphs II and III, Department of the Army General Orders No. 2, January 14, 1954. And that officer is a member of the Army Staff at the Department of the Army level which is immediately under the direction and control of the Secretary of the Army. 10 USC §§ 3031, 3032, and 3036. See also Army Regulations 10-5, May 22, 1957, paragraphs 18, 49, and 53. Thus it is apparent that the command is not “many steps ‘removed’ from” Department of the Army level, but, rather, is closely connected therewith. See United States v Keeler, supra, and United States v Ochoa, supra.
Accordingly, we are satisfied that the command herein concerned possesses the qualities indicative of and meets all existing tests this Court has previously spelled out for “major commands” competent to promulgate general or[173]*173ders. Thus, the assigned error must be resolved against accused.
Because the tenor of the dissenting opinion suggests that we have ignored the realities of Army organization and missed certain pertinent regulations in resolving this issue, we turn our attention to the suggestions therein which contend for a conclusion contrary to that we reach. Principally those contentions are, first, that Fort Huachuca is not closely connected with Department of Army level, and, second, that in any event, regulations have stripped the commanding officer in question of authority to promulgate the order accused pleaded guilty to violating. Both arguments find their roots in the belief that jurisdiction is in fact exercised over Fort Huachuca by the Commanding General, Sixth United States Army. That approach overlooks the complete text of applicable regulations and the responsibility of the Commanding General of the Fort. Lest there be confusion, we note parenthetically that the officer who issued the regulation is not the Chief Signal Officer and, of course, as commander of both the installation and the facility there located, he has command responsibility. Moreover, if we are to consider regulations apparently vesting some authority in Zone of Interior army commanders, we deem it appropriate to pay heed to all their provisions. Paragraph 6e of Army Regulations 10-50, June 21, 1957, states that Zone of Interior army commanders will:
“Prescribe and enforce off-post military regulations within their respective geographical areas. In specifically designated areas in the vicinity of class II installations, local jurisdiction responsibility may be delegated by mutual agreement between the head of the Headquarters, Department of the Army agency and the Zone of Interior army commander concerned. See AR 380-430.”
We point out that the regulation does not purport to vest responsibility in the Zone of Interior army commander to the exclusion of the Commanding Officer of Fort Huachuca. As a matter of more than passing interest, even assuming it did so, the regulation contains an express exception peculiarly pertinent to Fort Huachuca, which is a Class II installation. And in that connection, we note the specification alleged and accused pleaded guilty to a violation of the order here in question. He chose not to contest the legality of the order, and until now no one at any level has ever contended that the commander concerned lacked authority to issue the regulation dealing with the subject matter it did. No doubt they have been influenced in that regard by paragraph II, Department of the Army General Orders No. 2, January 14, 1954, supra, which relieved’ Fort Huachuca from jurisdiction of the Commanding General, Sixth Army, and activated it as a Class II installation under the jurisdiction of the Chief Signal Officer. Under those circumstances, we would resort to sheer speculation and fly full in the face of the presumption of regularity to hold that the commanding officer of Fort Huachuca arrogated to himself authority Army Regulations forbade him to exercise. Moreover, in case anyone has any doubt about the authority of the commander in question to curtail travel to Mexican border cities — whether by requiring possession of passes endorsed by certain officers of his command in order tq visit Mexico, or by any other proper means— we invite attention to the provisions of paragraphs 24 and 25, Army Regulations 630-5, November 5, 1957.
The above factors are likewise dis-positive of the second contention, based upon United States v Bunch, supra. Although it should hardly be necessary to point out, we see a great deal of difference between a Naval regulation which restricts issuance of certain orders to specified officers to the exclusion of any others, as in Bunch, supra, and a regulation with an express exception which may permit other commanders to operate in an area, as is the case in this instance. No great perspicacity is required to realize that a grant of authority to the Commanding General, Sixth Army, to prescribe and enforce off-post military regulations does not [174]*174necessarily negate authority of the commanding officer of Fort Huachuca to issue regulations which have to do with pass privileges of members of his command.
That leaves for determination the certified issue, which concerns the applicability of footnote 5 of the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951. In several prior cases, we have been confronted with that question. Those decisions have settled the law in the area, and there is no need to reiterate their teaching here. See United States v Buckmiller, 1 USCMA 504, 4 CMR 96; United States v Yunque-Burgos, 8 USCMA 498, 13 CMR 54; United States v Loos, 4 USCMA 478, 16 CMR 52; United States v Alberico, 7 USCMA 757, 23 CMR 221.
In the case at bar, as we noted earlier, the board of review affirmed the findings. However, on considering the sentence, the board reasoned as follows: That the effect of the order proscribing unauthorized visits to Mexico was to impose a restriction upon those persons not authorized to travel in that country; that accused’s action thus constituted a breach of the restriction; that that offense was punishable under Article 134 of the Code; that footnote 5 was, therefore, applicable in fixing the sentence imposable for the Article 92 offense; and thus that one month was the maximum' period of confinement which could be imposed upon accused for commission of that offense. Accordingly, the board found accused’s sentence for his two crimes excessive as a matter of law.
We disagree with both the reasoning and the ultimate conclusion. We need not express an opinion on the holdings in the two cases upon which the board of review relied — United States v Jones, 23 CMR 444, and United States v Kalbaugh, 23 CMR 606 — for in those instances the orders were of an entirely different nature. In Jones, all Korea except for limited described areas was made off-limits to a soldier stationed there. As the opinion expressly points out, however, “so far, though, as the accused here was concerned, and others similarly situated, he was, in effect, restricted to his unit compound or area.” 23 CMR at page 447. Likewise, in Kalbaugh, the regulation proscribed being anywhere except in one’s quarters at certain times. To the contrary, in the instant case accused was not so restricted, but rather the regulation forbade only his going to Mexico without authorization. Fort Huachuca, Arizona, obviously is not located within Mexico, and we take notice that neither are any of its boundaries contiguous to our South border. Thus, accused was “restricted” by the regulation — if that be a proper characterization of his status — only to all the world save Mexico. There can be no doubt, then, that United States v Jones and United States v Kalbaugh, supra, are readily distinguished.
The board, however, argued that “It matters not whether the area be large or small.” We encounter little difficulty rejecting that approach. One element required for proof of breach of restriction is that an accused has been duly restricted to certain designated limits. The regulation herein involved was restrictive only in the sense that it barred the accused from entry into Mexico without proper clearance and, for all practical purposes, it had no territorial limits. This limitation is somewhat akin to the one involved in United States v Tinker, 10 USCMA 292, 27 CMR 366, where we affirmed the findings and sentence of an accused for violating a general regulation which placed a certain house of ill repute off limits to service personnel. As here, that regulation had the effect of marking out a large area in which it could be said the accused was restricted, but principally it operated in the reverse and barred the accused from entry into the described area. True it is that an order can be couched in terms that effectively serve to proscribe a serviceman’s freedom to leave a limited area but when, as here, the reason for the regulations is not to confine military personnel within a prescribed area but rather to [175]*175circumscribe their movement to and from foreign lands where they may involve the United States Government, no great discernment is necessary to recognize the difference between that situation and the mere leaving of a designated area under the control of the local commander. In that connection, it is to be borne in mind that travel of military personnel across an international boundary and into a foreign country — albeit one so friendly as Mexico — is fraught with many complications, and numerous reasons for controlling or banning that sort of travel by members of the armed forces spring readily to mind.
Thus, when we measure the facts of the case at bar by the yardstick we have spelled out for use in this area, and particularly when we consider the gravamen of accused’s misconduct, we conclude that offenses of the type herein involved differ from and are far more serious than a simple breach of restriction. Accordingly, we hold that the board of review erred in applying footnote 5 to determine the sentence imposable for accused’s violation of the general order. The certified question, therefore, is answered in the negative.
Normally that holding would require that the case be returned to the board of review for further action. Here, however, there is no infirmity in the findings, and the certified issue involves merely accused’s sentence. As we have noted earlier, the Acting The Judge Advocate General has remitted so much of the sentence as exceeds that previously affirmed by the board of review. In light of that action, it is apparent that remanding the record for reassessment of sentence in accordance with our holding, would be an empty and unnecessary proceeding, for the board has already determined that accused’s punishment, as remitted, is appropriate. Accordingly, the findings and sentence approved by the board of review are affirmed.
Chief Judge Quinn concurs.