United States v. Smith

25 M.J. 545, 1987 CMR LEXIS 607
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedSeptember 2, 1987
DocketNMCM 85 4235
StatusPublished
Cited by1 cases

This text of 25 M.J. 545 (United States v. Smith) 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. Smith, 25 M.J. 545, 1987 CMR LEXIS 607 (usnmcmilrev 1987).

Opinion

MIELCZARSKI, Judge:

This case has been referred to this Court by the Judge Advocate General of the Navy pursuant to Article 69, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 869, for our review under Article 66, UCMJ, 10 U.S.C. § 866. Appellant was convicted of numerous bad check offenses, dishonorable failure to satisfy an obligation, dishonorable failure to pay a debt, and willfully disobeying a lawful order, in violation of Articles 123a, 134, and 90, respectively, of the UCMJ, 10 U.S.C. §§ 923a, 934 and 890.

In late August 1984, appellant, a Gunnery Sergeant and the Command Sergeant Major at the Communication-Electronics School, Twentynine Palms, California, agreed to sell her 1976 Cadillac to Lance Corporal (LCPL) Lowe, then a student at the school. Lowe obtained financing for the purchase from the Navy Federal Credit Union (NFCU) which sent the loan check to him via Captain Dalton, the Officer-in-Charge of Special Services at the command. The credit union requested Captain Dalton to act as an escrow agent and to release the check only upon receipt of proper title, registration, and inspection documents from the appellant. Appellant, however, persuaded Captain Dalton to release the loan check to her without delivery of the vehicle title document. She assured Captain Dalton that the title would be forthcoming immediately. In the following months, appellant failed to deliver the title document to either Dalton or Lowe; consequently, the NFCU “froze” LCPL Lowe’s funds and severe financial difficulty ensued.

Appellant’s commanding officer, Chief Warrant Officer 4 (CW04) McGwinn, after receiving numerous complaints about the situation from LCPL Lowe’s new command, spoke with the appellant about the matter. Appellant acknowledged that she did sell the car to LCPL Lowe and that she had not delivered the title. McGwinn advised her that LCPL Lowe’s funds had been frozen by the NFCU as a result of her failure to deliver the title and that she [547]*547could rectify the situation simply by applying for a duplicate title with the Department of Motor Vehicles. She refused to do so without any explanation. CW04 McGwinn then ordered appellant to produce either the original title or the money paid for the car by LCPL Lowe, or to apply for a duplicate title. Appellant did not comply with that order. These acts formed the basis of appellant’s convictions of dishonorably failing to satisfy an obligation and disobeying a lawful order from a superior officer.

The Judge Advocate General has requested that the following issues be resolved:

A. WHETHER ADDITIONAL CHARGE III, SPECIFICATION 1, WHICH ALLEGES THAT THE ACCUSED DISHONORABLY FAILED TO SATISFY AN OBLIGATION TO TURN OVER TITLE TO A VEHICLE STATES AN OFFENSE COGNIZABLE UNDER ARTICLE 134, UCMJ. CF. UNITED STATES V. BRAND, 10 U.S.C.M.A. 437, 23 C.M.R. 3 (1959); UNITED STATES V. KIRKSEY, 6 U.S.C.M.A. 556, 20 C.M.R. 272 (1955); MCM, 1984, PT. IV, PAR. 71.
B. WHETHER, UNDER THE CIRCUMSTANCES OF THIS CASE, THE ORDER ALLEGED TO HAVE BEEN VIOLATED IN ADDITIONAL CHARGE I AND ITS SPECIFICATION CONSTITUTES A LAWFUL ORDER. SEE UNITED STATES V. ROBINSON, 6 U.S.C.M.A. 347, 20 C.M.R. 63 (1955); UNITED STATES V. ENGLAND, 30 C.M.R. 733 (C.G.B.R.1960); MCM, 1984, PT. IV, PAR. 14c(2)(a)(iii).
C. WHETHER CORRECTIVE ACTION IS REQUIRED TO REMEDY THE APPARENT VARIANCE BETWEEN THE FINDINGS OF GUILTY TO ADDITIONAL CHARGE III, SPECIFICATION 2, AS CHARGED, AND THE UN-REBUTTED EVIDENCE AT TRIAL TO THE EFFECT THAT, IN AUGUST, 1984, THE ACCUSED PAID $600.00 OF THE $1,000.00 ALLEGED TO HAVE BEEN OWED. CF. UNITED STATES V. LEE, 1 M.J. 15 (C.M.A.1975).

The first issue concerns whether Specification 1 of Additional Charge III states an offense under Article 134, UCMJ. That Article proscribes, inter alia, all disorders and neglects to the prejudice of good order and discipline in the armed forces. Manual for Courts-Martial, United States, 1984 (MCM), Part IV, 11 60c(3). The Article contemplates only the punishment of that type of misconduct which is directly and palpably — as distinguished from indirectly and remotely — prejudicial to good order and discipline. MCM, 1984, Part IV, If 60c(2)(a). See also United States v. Snyder, 1 U.S.C.M.A. 423, 4 C.M.R. 15 (1952); United States v. Herndon, 1 U.S.C.M.A. 461, 4 C.M.R. 53 (1952); United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R. 37 (1953).

The specific misconduct alleged here is that appellant dishonorably failed to satisfy an obligation. While the mere failure to discharge one’s obligations, without more, does not constitute an offense under Article 134, United States v. Brand, 10 U.S.C.M.A. 437, 28 C.M.R. 3 (1959), United States v. Kirksey, 6 U.S.C.M.A. 556, 20 C.M.R. 272 (1955)1, appellant’s actions in this case fall within the purview of the statute in that they were directly and palpably prejudicial to the good order and discipline in the armed forces. The obligation that formed the basis for the charge and specification in question was to deliver the title to her car to LCPL Lowe upon sale. The'sale of the car, to outward appearances a purely private transaction, was a matter of military concern given both the status of the parties to the sale and the involvement of the appellant’s command (as escrow agent) therein. We are so convinced because of a number of considerations. First, the entire transaction took place within a military context — the transaction involving the sale of an automobile by a senior staff member of a training command to a junior enlisted student at that training command. Second, both the [548]*548appellant and LCPL Lowe agreed to have the command’s Special Services Officer, Captain Dalton, act as an escrow agent for the NFCU in the transfer. Third, appellant induced Captain Dalton to violate the terms of that escrow agreement when she, apparently relying both on the respect of her rank and her position at the school command, wheedled and cozened him into releasing the check to her without delivering the title document. Fourth, her failure to deliver the title amounted to an act of fraud or trickery upon LCPL Lowe, and resulted in the freezing of Lowe’s funds by the NFCU, thus adversely affecting his morale and performance. In addition, it entangled two commands in numerous administrative efforts to rectify the situation. Furthermore, testimony elicited at trial revealed that appellant’s failure to deliver the title constituted a violation of a California motor vehicle law requiring that title documents be transferred upon the sale of an automobile.2 The fact of this violation alone may be sufficient basis for a viable charge under Article 134 in that paragraph 60c(2)(a) of the M.C.M. specifically provides that “[a]n act in violation of a local civil law ... may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces.”

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25 M.J. 545, 1987 CMR LEXIS 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-usnmcmilrev-1987.