United States v. Traxler

39 M.J. 476, 1994 CMA LEXIS 44, 1994 WL 362233
CourtUnited States Court of Military Appeals
DecidedJuly 14, 1994
DocketNo. 93-0622; CMR No. 29311
StatusPublished
Cited by21 cases

This text of 39 M.J. 476 (United States v. Traxler) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Traxler, 39 M.J. 476, 1994 CMA LEXIS 44, 1994 WL 362233 (cma 1994).

Opinion

Opinion of the Court

WISS, Judge:

Despite his not-guilty pleas, a general court-martial with members convicted Technical Sergeant Traxler of missing movement of an aircraft through design and willfully disobeying the command of his superior officer to board that same aircraft, in violation of Articles 87 and 90, Uniform Code of Military Justice, 10 USC §§ 887 and 890, respectively. The members sentenced Traxler to a bad-conduct discharge, confinement for 1 year, reduction to the grade E-5, and a reprimand. The convening authority approved these results, and the Court of Military Review affirmed in an unpublished opinion.

On petition to this Court, we granted review of the first issue raised by appellate defense counsel and specified the second one, stated below as follows:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO GRANT THE DEFENSE MOTION TO DISMISS CHARGE II, DISOBEYING A LAWFUL [477]*477COMMAND TO BOARD AN AIRCRAFT, WHEN THE UNDERLYING OFFENSE OF MISSING MOVEMENT WAS ALSO CHARGED.
WHETHER CHARGE I [missing movement through design] IS MULTIPLI-CIOUS WITH CHARGE II.

We hold that Trader properly was convicted both of missing movement through design and willfully disobeying his superior officer’s order. We hold further that the two offenses are not multiplicious for findings, see United States v. Teters, 37 MJ 370 (CMA 1993), and that no notion of “ultimate offense” limits the maximum punishment just to that which is provided for missing movement.

I

A

Appellant, among others, received orders to board a certain aircraft for deployment to Europe on a Joint Chiefs of Staff exercise relating to Operation Desert Shield/Desert Storm; deployment was scheduled for December 15, 1990. In response, he told his first sergeant that he would not make the flight. He explained that he had a separation date in July 1991 and would go on terminal leave in April 1991. When the first sergeant retorted that his separation could be delayed, appellant offered additional explanations: He was going to start a business upon separation from the Air Force and, for a variety of reasons, that could not be delayed; also, he had a fear of flying that had resulted from an incident on some earlier military flight.

On December 12, appellant spoke with his commander, Captain Collins, and gave similar reasons why he could not deploy. Collins answered that appellant’s duty was to the Air Force and to obeying orders, not to some future civilian business; further, he recommended that appellant see the chief of the mental health clinic for counseling in connection with his fear of flying.

Anticipating that appellant might -still balk at his deployment, Collins sought advice from the legal office and drafted a written direct order to board the aircraft. When, on Deeember 15, Collins was called by the flight-line supervisor and told that appellant refused to board, Collins went to the flightline with the written order in his pocket.

There, Collins spoke with appellant, and the latter said, “I can’t go.” When Collins asked why, appellant just said, “I can’t go.” At this point, Collins took appellant off to the side of the aircraft and told him he was going to read to him a written order and that he wanted appellant to sign its receipt to ensure his understanding of it. The order read: “I hereby give you a direct order to board Aircraft # 63-7790 in conformance with your TDY orders (S.O. TF199 dated 12 Dec 90/31 TAW [Tactical Airlift Wing]).” Appellant signed the receipt.

That done, security policemen escorted appellant away from the aircraft. Collins told appellant “that he had up until the time the actual door on the aircraft closed” to change his mind and board. Appellant did not, and so he missed the aircraft’s movement.

B

At trial, Collins testified that, after he had referred appellant to the mental health clinic, personnel there reported to Collins that appellant did not have a legitimate fear of flying; had he been told otherwise, Collins indicated that he “would not have” given his order. Collins insisted that, while he had sought advice from the legal office to deal with appellant’s refusal, no discussion of punishment of appellant ever arose. Further, he maintained that “punishment was not on [his] mind” when he generated the order. Instead, he testified that the purpose of his order was “to indicate to [appellant] the seriousness of the deployment and that if he actually refused to deploy that he needed to think twice about that thought.” He “put the written order together to emphasize the necessity of him to meet a deployment commitment.” Collins’ “hope was that [appellant] would board the aircraft and depart for Europe.”

After entering findings of fact consistent with the foregoing discussion, the military judge announced the following pertinent conclusions as a predicate for denying a defense [478]*478motion to dismiss the charge of disobeying Captain Collins’ order:

B. The duty imposed by the order was not routine in nature but was a specific mandate to perform a particular act at a definite time and place.
C. The accused’s violation of the order was a flagrant defiance of military authority in the presence of other military personnel and in the midst of a Joint Chiefs of Staff directed military exercise.
D. Though the accused had a preexisting duty to board the deploying aircraft the order was formulated and issued by Capt. Collins with a view to adding the full authority of his position and rank to ensure the accused’s compliance with the directive. It was not formulated for the purpose of enhancing the punitive consequences of a possible violation.
E. Under current applicable decisions by both the Air Force Court of [Military] Review and Court of Military Appeals, the conduct of the accused on or about 15 December 1990 are [sic] properly charged as both violations of Article 87 and Article 90 of the Uniform Code of Military Justice.

After appellant had been convicted of both crimes, counsel and the military judge turned to the question of maximum punishment. Trial counsel indicated that, although the two offenses were separate, the Government would assume the “conservative approach” and “concede multiplicity” for sentencing “since they did in one sense arise out of the same act.” Thus, pointing to the maximum punishment for willful disobedience of a superior officer’s order, the prosecution urged that appellant’s liability extended to a dishonorable discharge, confinement for 5 years, total forfeitures, reduction to E-l, and a fine. See para. 14e(2), Part IV, and RCM 1003(b)(3) and (5), Manual for Courts-Martial, United States, 1984.'

Defense counsel agreed with the rationale that the two offenses arose from the same act and, therefore, were multiplicious for sentence. However, he argued that “the underlying misconduct” was the act of missing movement and, therefore, that the confinement portion of the maximum punishment should be that which is provided for that offense — 2 years. See para, lle(l), Part IV, Manual, supra.

Ultimately, the military judge sided with the prosecution.

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Bluebook (online)
39 M.J. 476, 1994 CMA LEXIS 44, 1994 WL 362233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-traxler-cma-1994.