United States v. Robinson

1 M.J. 914, 1976 CMR LEXIS 888
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMarch 11, 1976
DocketNCM 74 2042
StatusPublished
Cited by2 cases

This text of 1 M.J. 914 (United States v. Robinson) 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. Robinson, 1 M.J. 914, 1976 CMR LEXIS 888 (usnmcmilrev 1976).

Opinion

DECISION

MALLERY, Judge:

Appellant was convicted, contrary to his pleas, by general court-martial military judge sitting alone of a total of six specifications of sale, transfer, and possession of marijuana. He was sentenced to a bad conduct discharge, confinement at hard labor for 20 months, and forfeiture of all pay and allowances. The convening authority approved the findings and sentence but suspended the bad conduct discharge, the confinement in excess of ten months, and the forfeitures in excess of confinement actually served.

Appellant now asks us to set aside the findings and sentence and dismiss the charge and specifications. He bases his request on two assignments of error as follows:

I. The Court-Martial was without jurisdiction over appellant.
II. The government failed to comply with the mandate of United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975).

In support of his first assignment of error, appellant argues that the court-martial was without jurisdiction over him for the following reasons:

A. Appellant’s enlistment is void because he was disqualified under provisions of the Marine Corps’ Military Personnel Procurement Manual, MCO P1100.61c.
B. Appellant’s enlistment was void because it was not voluntary.

Neither of appellant’s assignments of error has merit.

[916]*916The essential facts are uncontroverted. Appellant was convicted of burglary in California in 1969 and was placed on three years probation after serving 90 days in pretrial confinement. In 1970, prior to his enlistment, appellant had repeatedly failed to keep his appointments with his probation officer as he was required to do and had been warned both orally and in writing by that officer. In December 1970, appellant learned, in a conversation with his probation officer, that his probation could be terminated if he were to enlist in the armed forces. Appellant then contacted a Marine Corps recruiter who, in turn, contacted the probation officer. Later, upon the recommendation of the probation officer, appellant’s probation was terminated on 30 December 1970. On 11 January 1971, appellant enlisted in the United States Marine Corps. In his NAYMC 136 form, Examination of Applicant by Recruiting Officer, which had been signed by appellant and by the recruiting officer prior to appellant’s enlistment, appellant fully revealed his entire criminal record, including two other convictions. Further, that form had, prior to appellant’s enlistment, been endorsed by the Director, 12th Marine Corps District, authorizing the enlistment. That authorization did not comply, however, with the provisions of MCO P1110.61c, Marine Corps Military Personnel Procurement Manual. Paragraph 2110.1g of that directive provides, inter alia, as follows:

Applicants who have one or more felony convictions . . . and who have no prior Marine Corps service . . . are not eligible for enlistment without prior approval from the Commandant of the Marine Corps (Code DP) [emphasis added].

Further, paragraph 2111.2d of that directive classifies burglary, the crime involved here, as a felony.

Thus, it is apparent that the Marine Corps failed to comply with its own directive in connection with appellant’s enlistment. However, there is no evidence, whatsoever, of any dishonesty, subterfuge, or misconduct of any kind on the part of any member of the Marine Corps in connection with that enlistment. All of the facts concerning appellant’s criminal background were fully disclosed on the record prior to his enlistment. The only error committed by the Marine Corps was to approve appellant’s enlistment at the wrong level, at Marine Corps District level rather than Headquarters Marine Corps level.

The first question for this Court is whether or not the Marine Corps’ failure to comply strictly with its own regulation rendered appellant’s enlistment void and thus deprived the court-martial of jurisdiction to try him. Appellant insists that United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975), has just that effect. Also see United States v. Barrett, 24 U.S.C.M.A. 474, 50 C.M.R. 493, 1 M.J. 74 (1975); United States v. Muniz, 23 U.S.C.M.A. 530, 50 C.M.R. 669, 1 M.J. 151 (1975); and United States v. Burden, 23 U.S.C.M.A. 510, 50 C.M.R. 649, 1 M.J. 89 (1975). We disagree. In Russo, and each of the other cases cited, the appellant was absolutely disqualified from legally enlisting in the armed forces and was enabled to fraudulently enlist only through misconduct on the part of the recruiter. In the instant case, appellant was not absolutely disqualified from enlisting. He was simply ineligible without prior approval from the Commandant of the Marine Corps. To put the matter another way, he was conditionally eligible to enlist. Further, as indicated above, there was absolutely no evidence of misconduct on the part of the recruiter, and no hint of fraudulent enlistment.

The issue, therefore, becomes whether or not the Marine Corps’ failure to approve appellant’s enlistment at the proper level renders his enlistment void. We think not. Any regulation which prohibits an armed forces recruiter from enlisting a convicted felon without prior approval of some kind from a higher headquarters is clearly for the benefit of the felon as well as the armed force. United States v. Catlow, 23 U.S.C.M.A. 142, 48 C.M.R. 758 (1974); United States v. Russo, supra. However, in this case, that portion of the regulation which [917]*917prescribes which higher headquarters will issue the prior approval is clearly for the benefit of the Marine Corps and not for the benefit of the prospective enlistee. It is impossible to imagine how appellant could have been benefited in any way by having his application for enlistment screened at Headquarters Marine Corps rather than at the 12th Marine Corps District Headquarters.

It was clearly the prerogative of the Commandant of the Marine Corps, in MCO P1110.61c, the Marine Corps Military Personnel Procurement Manual, to require that all approvals of enlistments in the Marine Corps of convicted felons be made by certain designated personnel at Headquarters Marine Corps (In this case, Code DP). There are obviously sound reasons for such a requirement, not the least of which is the desirability of establishing uniform standards for such enlistments throughout the Marine Corps. However, in this case, there is no reason to believe that appellant’s application for enlistment would not have been approved had it been forwarded to Headquarters Marine Corps rather than the 12th Marine Corps District. Hindsight is always 20/20; foresight frequently needs optical assistance. In general, there is no reason to suppose that more (or poorer quality) convicted felons would be enlisted if the decision whether or not to enlist them were always made at Marine Corps District Headquarters rather than at Headquarters Marine Corps. If such decentralization of authority were effectuated, the only probable result would be lack of uniformity between Marine Corps Districts. Some districts would probably exercise stricter standards than Headquarters Marine Corps and some more lenient standards.

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Related

United States v. Taylor
3 M.J. 947 (U.S. Navy-Marine Corps Court of Military Review, 1977)
United States v. Ruggiero
1 M.J. 1089 (U.S. Navy-Marine Corps Court of Military Review, 1977)

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Bluebook (online)
1 M.J. 914, 1976 CMR LEXIS 888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robinson-usnmcmilrev-1976.