United States v. Tucker

17 M.J. 1004, 1984 CMR LEXIS 4660

Opinions

ABERNATHY, Judge:

*

Appellant, contrary to his pleas, was convicted of unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. This Court, on its own motion, ordered written briefs on the following issues:

I. WHETHER THE ENTRY ON PROSECUTION EXHIBIT 2 WHICH ESTABLISHED APPELLANT’S UNAUTHORIZED ABSENCE ALSO BROUGHT THE CASE WITHIN THE AMBIT OF THIS COURT’S DECISION IN UNITED STATES V. RICE, 15 M.J. 605 (N.M.C.M.R.1982)?

II. WHETHER, IF THE FOREGOING QUESTION IS ANSWERED AFFIRMATIVELY, THE RICE HOLDING IS CONTROLLING IN VIEW OF APPELLANT’S FAILURE TO LITIGATE AT TRIAL THE QUESTION OF WHICH COMMAND EXERCISED SUMMARY COURT-MARTIAL JURISDICTION OVER HIM AT THE TIME SWORN CHARGES WERE RECEIVED? SEE UNITED STATES V. LEMARBE, 11 M.J. 864 (N.M.C.M.R. 1981).

In addition, the Court, proceeding en banc, requested oral argument on a third issue:

WHETHER UNITED STATES V. RICE, 15 M.J. 605 (N.M.C.M.R.1982) WAS CORRECTLY DECIDED? SEE UNITED STATES V. CENTENO, 17 M.J. 642 (N.M.C.M.R.1983).

I

Summary of Facts

Appellant absented himself from his unit, Wing Transport Squadron 37, Marine Wing Support Group 37, 3d Marine Aircraft Wing, FMF Pacific, Marine Corps Air Station, El Toro, California (hereinafter, WTS-37) from 31 December 1979 until 21 December 1982. Prosecution Exhibit 2, a copy of a “Page 12” from appellant’s service record book, reflected that appellant was declared a deserter on 30 January 1980 and was dropped from the unit’s rolls on 3 February 1980. The charges upon which appellant was tried were received by the officer exercising immediate summary court-martial jurisdiction over WTS-37, on 30 January 1981. At trial, appellant did not move to dismiss the charges. Before this Court, however, appellant has argued that the receipt of charges was without effect in accordance with the prior decision of a panel of this Court in United States v. Rice, 15 M.J. 605 (N.M.C.M.R.1982).

The government, on the other hand, contends that the Rice case was incorrectly decided and should not control the disposition of this case.

We have considered the briefs and arguments of counsel and have determined that the resolution of these issues requires a reexamination of the major premises underlying the decision in Rice.

II

Summary Of United States v. Rice

In United States v. Rice, supra, as in the case sub judice, the charges were received by an officer exercising summary court-martial jurisdiction over the command from which the accused had absented himself. These charges were received, however, after the accused had been dropped from the unit’s rolls. At trial, Rice moved to dismiss the charges based upon the government’s failure to toll properly the statute of limitations. Rice, in support of his position, relied upon certain provisions of the Marine Corps Individual Records Administration Manual (IRAM) and the Marine Corps Legal Administration Manual (LEGADMINMAN) in arguing that, once he had been dropped from the rolls of his unit, the officer exercising summary court-martial authority over that unit could no longer receive charges against him. In reversing appellant’s conviction, the Court reasoned that Article 43(c), UCMJ, 10 U.S.C. § 843(c), contemplates action by that particular summary court-martial authority under whose command an accused is attached at the time sworn charges are received. Rice, supra at 606. The Court characterized the two Marine Corps administrative directives as protective of an accused’s interests by limiting the government’s ability to prosecute. As such, the Marine Corps was bound to follow these directives. Once Rice had been dropped from the rolls of his unit, Marine Corps regulations precluded that command from tolling the statute of limitations. Rice, supra at 608.

Underlying the Rice decision are two premises. The first is that only one particular summary court-martial authority may receive sworn charges, namely, the summary court-martial authority of the unit to which an accused is attached. The second premise is that the cited IRAM and LEGADMINMAN provisions were specifically promulgated to provide procedural safeguards to an accused. Based upon our examination of the Code, the Manual for Courts-Martial and the Marine Corps manuals, we believe that neither premise is correct.

Ill

Article 43(e), UCMJ, Does Not Contemplate Action By Only One Particular Officer Exercising Summary Court-Martial Authority.

Article 43(c), UCMJ provides that:

Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section 815 of this title (article 15) if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 815 of this title (article 15).

The legislative determination as to the identity of “an officer exercising summary court-martial jurisdiction over the command” has not significantly altered since the Code’s inception. The interpretation placed upon that phrase, as found in Paragraphs 68c and 215, Manual for Courts-Martial, 1969 (Rev.) (MCM, 1969), has likewise remained constant throughout this period.

Paragraph 68c, Manual for Courts-Martial, United States (1951) (MCM, 1951), provided:

The period of limitation begins to run on the date of the commission of the offense. With respect to liability to trial by court-martial, it ends when sworn charges and specifications are received by any officer exercising summary court-martial jurisdiction over the command which includes the accused. • See 33b and Art. 24. [Emphasis added].

Article 24(b), UCMJ, 10 U.S.C. § 824(b) provides

. .. Summary courts-martial may, however, be convened in any case by superior competent authority when considered desirable by him.

By reference to a superior competent authority, as a party capable of convening a summary court-martial, it can also be logically concluded that such an individual also can perform functions antecedent to the act of convening, such as the receipt of sworn charges. The notion that a superior in the chain of command may receive sworn charges is consistent with both Article 43(c), UCMJ, which speaks in terms of “command” rather than “unit” or “organization”, and Paragraph 33i, MCM, 1969, which implies that in some circumstances officers exercising summary court-martial jurisdiction will be able to convene special or general courts-martial. That being the case, it would stand to reason that not only an accused’s immediate commanding officer but his superiors, even the Commandant or his designee, could receive sworn charges. See United States v. Centeno, 17 M.J. 642 (N.M.C.M.R.1983).

Although admittedly broad in its scope, Paragraph 68c, MCM, 1951, did provide some limitations upon the exercise of the authority to receive charges: the command must include the accused. We interpret the concept of inclusion to mean that there must be a substantial identifiable nexus, either operational or administrative, between the officer receiving the charges and the accused. In the ordinary case, an accused’s presence within a specific organization is indicative of the nexus between himself and the officer exercising summary court-martial authority over that organization. In the case of unauthorized absentees, the existence of a nexus must be determined from other factors.

IV

Existence Of A Nexus Between An Unauthorized Absentee, And An Officer Exercising Summary Court-Martial Jurisdiction

When the unit from which a deserter absents himself utilizes the “dropped from the rolls” information to record and report to higher headquarters the status of the deserter, the electronic manpower management system can efficiently program a replacement for a marine who is likely to leave the unit understrength for an extended period of time. The system also affords the efficient centralized control in one reporting unit of all Marine Corps deserters and the management of the peculiar problems often created in their return to military control, utilizing electronic means and the existing reporting unit structure of the Marine Corps. Paragraph 4000.3, LEGAD-MINMAN.

In determining the true relationship between the appellant and his unit, it is significant that, as a deserter, he was not processed via “transfer” or “change station” entries and information, as is true of other transferees. Paragraph 4007, LEGADMINMAN; Chapter 5, Marine Corps Order P1080.25, Personnel Reporting Instructions Manual (PRIM). Nor was there a physical movement of the person of the appellant to another command or, upon recovery, from another command, as is the customary meaning of the term “transfer”. J. NOEL & L. BEACH, NAVAL TERMS DICTIONARY (4th ed. 1978). All of the indicia of command responsibility for the appellant, such as custody of service records, pay record, health record, personal effects and re-entry to the rolls of the unit upon return to the unit remained with WTS-37. See, paragraph 4002, LEGAD-MINMAN. WTS-37 and the local command chain were possessed of uniquely accurate personal information regarding the appellant, his offense and the impact of the offense on the unit. When a deserter is recovered, he is returned to the unit from which he absented himself. Paragraph 4007, LEGADMINMAN. When the deserter returns to that unit, no authorization from Headquarters Marine Corps to rejoin the deserter to the rolls of the parent unit is required. Paragraph 4007.6, LEGADMINMAN.

The sole act which appellant contends divested the commanding officer WTS-37 of the power to toll the statute of limitations was the dropping of the appellant’s name from the rolls of the unit on the 31st day of his absence in conformance with deserter record control and accounting procedures. Although “dropping from the rolls” has significant manpower management implications and convenience, such action in the totality of the circumstances is insufficient to break the factual and legal nexus between the appellant and the summary court-martial authority at WTS-37.

V

Paragraph 4001.1 IRAM Was Not Promulgated To Grant A Procedural Right To An Accused

It is well settled that either the President in promulgating the Manual for Courts-Martial or the armed services in adopting regulations can go even further than the Constitution and the Uniform Code in providing safeguards for military personnel. United States v. McGraner, 13 M.J. 408 at 414-415 (C.M.A.1982); United States v. Dunks, 1 M.J. 254 (C.M.A.1976).

Rice, although not affirmatively so stating, apparently adopted the view that the cited paragraph of the IRAM was promulgated to provide important procedural safeguards for an accused. Unlike the author of Rice, we cannot ascribe such status to the provisions of the administrative manuals at issue.

Paragraph 4001.1 as excerpted in Rice is incomplete and misleading. The complete paragraph is as follows:

4001 GENERAL INSTRUCTIONS ON THE CARE AND MAINTENANCE OF THE SERVICE RECORD BOOK

1. Responsibility. Responsibility for care and maintenance, including opening and assembly, custody, timely forwarding, making entries, etc., rests with the commander of the organization to which the Marine has been appropriately joined and is then a member. Although a custodian may be appointed to perform these functions, the commander’s responsibility cannot be delegated. Responsibility for making entries includes entries concerning desertion and unauthorized absence even though such entries reflect events which may have occurred before the Marine was joined by the current organization. (See paragraph 4014 regarding unauthorized absence and desertion entries.) As provided in the Uniform Code of Military Justice, article 43, and MCM 1969 (Rev.), 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 dropping command is no longer empowered to terminate the running of the statute of limitations by the receipt of sworn charges and specifications preferred against the Marine. (See paragraph 4014.2a(3)(b).)

In the context of the entire paragraph, it is obvious that the admonition regarding the effect of dropping a Marine from the rolls was an explanatory part of a purely general instruction regarding responsibility for the care and maintenance of the service record book.

It is also significant that the admonition is not repeated in paragraph 4014(2)(a)(3)(b).¹ The guidelines of that paragraph stating what should be done if the drafting of charges is considered appropriate hardly comport with the strict regulatory interpretation placed upon paragraph 4001.1 in the Rice decision.

Further evidence of the limited administrative purpose of paragraph 4001.1, and the directive as a whole, can be found throughout the IRAM.

The promulgation order, for example, specifically provides:

3. Promulgation. The revised Individual Records Administration Manual is issued for the guidance and compliance of all individuals concerned in Marine Corps records administration. Instructions contained herein in no way amend any provisions of reference (a) through (d) or Navy Department general orders.²

Likewise, the introductory paragraph of MCO P1070.12c dtd 8 Jul 1975 identifies the purpose of the IRAM as “the promulgation of policies, procedures, and technical instructions for the administration of personal records.” Para 0001.1 IRAM. Based upon these observations, we find the Rice case and the case at bar readily distinguishable from United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) and its progeny.³ Unlike those cases, there is neither language which expressly creates procedural rights in an accused nor language from which such a right may be directly inferred. Rather, the precatory language in paragraph 4001.1 when read in its proper context is indicative of a mere advisory statement. The guidelines set forth in paragraph 4014 2(a)(3)(b) constitute internal rules which were promulgated for the government’s convenience in order to establish a uniform procedure for making service record entries. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. McGraner, supra.

YI

Conclusion

Notwithstanding the opinion in Rice, we refuse to take the quantum leap required to find an intent within these regulations to benefit an accused. We specifically refuse to do so when such action would require us to engraft amendments onto the Uniform Code of Military Justice and the Manual for Courts-Martial, based upon gratuitous opinions as to the requirements of military law, especially when such opinions are beyond the scope of the manual’s stated purpose.

As regards the provisions of the LEGAD-MINMAN, cited in Rice, we reach the same conclusion. When the specific provisions are analyzed in their total context it is clear that these instructions are purely internal administrative guidelines. No legal opinions are expressed as regards the dropping of a Marine from his unit’s rolls, other than by reference to the IRAM.

That being the case, the appropriate point of reference in determining whether the statute of limitations has been properly tolled is Article 43(c), UCMJ, not the IRAM.

As there has been compliance with Article 43(c) in the case sub judice, the conviction of the appellant may stand, notwithstanding the Rice decision, which we overrule. The findings and sentence as approved on review below are affirmed.

Chief Judge EOFF and Judges SANDERS, KERCHEVAL, GORMLEY, GLADIS, MITCHELL, BYRNE, LECORNU, GARVIN, AND BARR concur. Judges RAPP and MIELCZARSKI concur in the result.

Captain Kenneth L. ABERNATHY took final action on this case prior to his detachment on 29 February 1984.

1

. 2a(3)(b) Statute of Limitations. In the case of a Marine who has been administratively declared an unauthorized absentee or deserter, the drafting and preferral of charges, under the Uniform Code of Military Justice is essentially governed by the provisions of MCM, 1969 (Rev.), chapter VII, and the exercise of discretion by each Marine who performs any function connected therewith must remain completely unfettered. Accordingly, should disciplinary action for desertion or unauthorized absence be contemplated by the command, it is necessary that the running of the statute of limitations be tolled by the drafting and preferring of appropriate charges and the subsequent delivery to and receipt of sworn charges by the officer exercising summary court-martial jurisdiction over the Marine’s command. If such action is considered appropriate, the subject Marine should be first declared a deserter, then sworn charges receipted for by the officer exercising summary court-martial jurisdiction over the Marine command and then dropped from the rolls in that order.

2

. Ref:

(a) Navy Reg (NOTAL)

(b) MCM 1969 (Revised Edition) (NOTAL)

(c) JAG Manual (NOTAL)

(d) MARCORMAN (NOTAL)

3

. See, e.g., Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963).