United States v. Rice

15 M.J. 605, 1982 CMR LEXIS 761
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 15, 1982
StatusPublished
Cited by4 cases

This text of 15 M.J. 605 (United States v. Rice) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Rice, 15 M.J. 605, 1982 CMR LEXIS 761 (usnmcmilrev 1982).

Opinion

PER CURIAM:

Tried by special court-martial without members, appellant was found guilty, contrary to his pleas, of two specifications of unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. The military judge sentenced appellant to forfeit $300.00 pay per month for 6 months, to be reduced to the lowest enlisted pay grade, and to be separated from the Marine Corps with a bad-conduct discharge. That sentence was approved by the reviewing authorities below.

During an initial Article 39(a), UCMJ, 10 U.S.C. § 839(a) session, the defense moved to dismiss all charges and specifications as barred by the statute of limitations. Service record entries revealed that appellant had absented himself from his unit, Battery T, 5th Battalion, 10th Marines, 2nd Marine Division, on 18 September 1978, and on 18 October 1978 was declared a deserter and dropped from the rolls of that unit. The sworn charge was signed by the officer [606]*606exercising summary court-martial jurisdiction over 5th Battalion on 2 November 1978. Following appellant’s apprehension and return to 5th Battalion on 8 May 1979, the mark of desertion was administratively removed from appellant’s service record. On that same day, appellant again became an absentee and, again, was dropped from the rolls of 5th Battalion. An additional charge subsequently was endorsed by the officer exercising summary court-martial jurisdiction over 5th Battalion.

Appellant, both at trial and before this Court, submits that by first dropping him from the unit rolls of 5th Battalion, that command’s subsequent attempts to toll the statute of limitations were rendered ineffective. The defense argued that having dropped appellant from the 5th Battalion rolls, that command no longer exercised summary court-martial jurisdiction over appellant; thus, the signature appearing on the third page of the charge sheet was a nullity under Article 43(c), UCMJ, 10 U.S.C. § 843(c). Although appellant raised that as a summary assignment of error, this Court requested supplemental briefs addressing,

WHETHER MARINE CORPS ADMINISTRATIVE REGULATIONS BY WHICH A SERVICE MEMBER IS “DROPPED FROM THE UNIT ROLL” ESTABLISH A LEGALLY BINDING PROCEDURE, CONTRARY TO COMMON PRACTICE IN 2ND MARINE DIVISION, SUCH THAT NONCOMPLIANCE BY DROPPING THE MEMBER FROM THE UNIT ROLL PRIOR TO PREFERRAL OF CHARGES WOULD PRECLUDE A TOLLING OF THE STATUTE OF LIMITATIONS UNDER ARTICLE 43, UNIFORM CODE OF MILITARY JUSTICE.

Article 43(c), UCMJ, provides that the statute of limitations may be tolled through “receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.” Further amplification is found in paragraph 33, Manual for Courts-Martial, 1969 (Rev.) (MCM), which speaks of the “officer exercising summary court-martial jurisdiction over the accused” as a “member of his command.” That language has been construed, sub silentio, as contemplating action by that particular summary court-martial authority under whose command an accused was attached at the time sworn charges were received. See United States v. Johnson, 10 U.S.C.M.A. 630, 28 C.M.R. 196 (1959); United States v. Lemarbe, 11 M.J. 864 (N.M.C.M.R.1981). The procedure envisioned in Article 43(c) is in sharp contrast to the mechanism for tolling the statute of limitations recognized under the former Articles of War. As noted at the time of the Code’s adoption, Article 43(c) was

considered preferable to the more indefinite provision in [Article of War] 39 that the statute is tolled “when by reason of some manifest impediment the accused shall not have been amenable to military justice.”

Senate Comm, on Armed Services, S.Rep. No. 486, 81st Cong., 1st Sess. reprinted in Index and Legislative History, Uniform Code of Military Justice at 19 (1950).

Implementing the mandate expressed in Article 43(c), UCMJ, and paragraph 33, MCM, Marine Corps administrative directives stress the significance attaching to the command relationship between accused and his summary court-martial authority. Thus, the Marine Corps Individual Records Administration Manual, MCO P10070.12 (IRAM), cautions:

As provided in the Uniform Code of Military Justice, article 43, and Manual for Courts-Martial, United States 1969 (Revised Edition), paragraph 68c, the responsibility for receipt of sworn charges and specifications sufficient to terminate the running of the statute of limitations rests with an officer exercising summary court-martial jurisdiction over the command. The latter is significant in connection with action in dropping a Marine from the rolls; once that action is taken, an officer exercising summary court-martial jurisdiction over the Marine’s command is no longer empowered to terminate the running of the statute of limitations by the receipt of sworn charges and [607]*607specifications preferred against the Marine.

IRAM, par. 4001. Further guidance is provided in paragraph 4002(2) of the Marine Corps Legal Administration Manual, MCO P5800.8A (LEGADMINMAN), which directs that sworn charges should be receipted for by the officer exercising summary court-martial jurisdiction before the member is dropped from the unit rolls.1

As noted at trial, an individual removed from a unit’s rolls as a deserter immediately falls within the administrative cognizance of Headquarters, Marine Corps (Code MPH-57). While 2nd Marine Division would retain the member’s service record indefinitely, based upon storage constraints at Headquarters, Marine Corps, the original command has neither operational nor administrative control over the service member. Assuming the member’s physical return to his prior unit, that command would regain administrative responsibility by message notification to Headquarters, Marine Corps. Where the sequence of actions is inverted and the member is dropped from the rolls prior to the receipt of sworn charges, the LEGADMINMAN provides a specific remedial procedure which contemplates preparation of the charge sheet by the Commandant of the Marine Corps, (Code MPH-57).2

All parties acknowledge that the proper procedures, as contemplated by Article 43(c) and implemented by Marine Corps directives, were not employed in the instant case. We are now asked to consider the legal significance, if any, arising from that administrative variance.

It is well-settled that a Government agency will be bound by its own administrative regulations where the underlying purpose of those regulations is the protection of personal rights or interests. United States v. Russo, 1 M.J. 134 (C.M.A.1975), citing American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970) and United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954).

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15 M.J. 605, 1982 CMR LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rice-usnmcmilrev-1982.