United States v. Watson

37 M.J. 166, 1993 CMA LEXIS 80, 1993 WL 246180

• Court: United States Court of Military Appeals
• Decided: July 9, 1993
• Docket: No. 68,206; CMR No. 90-3661
• Status: Published

Opinions

Opinion of the Court

CRAWFORD, Judge:

Pursuant to his pleas, the accused was convicted of disobeying a lawful general order by possessing and carrying a sword with a 36-inch blade on Marine Corps Base, Camp Pendleton, California; conspiring to commit forgery and larceny; stealing a wallet; as well as forgery of 7 different charge-card sales receipts, in violation of Articles 92, 81, 121, and 123, Uniform Code of Military Justice, 10 USC §§ 892, 881, 921, and 923, respectively. He was sentenced by the military judge to a bad-conduct discharge, confinement for 6 months, total forfeitures, and reduction to the lowest enlisted pay grade. The Court of Military Review sitting en banc (5-4) ordered a new action. 35 MJ 602, 609 (1992).

The Judge Advocate General of the Navy certified the following issues:

I

WHETHER THE U.C.M.J., ARTICLE 60 ACTION TAKEN ON THE FINDINGS AND SENTENCE BY AN OTHERWISE STATUTORILY QUALIFIED OFFICER WAS RENDERED A LEGAL NULLITY BY FAILURE TO COMPLY WITH THAT PORTION OF JAGMAN 0145(b) [

*] (SUBPARAGRAPH 0145(b)(2) OF JAG INSTRUCTION 5800.7B OF 1 JULY 1978) DELINEATING WHICH OFFICERS EXERCISING GENERAL COURT-MARTIAL JURISDICTION MAY TAKE ACTION ON A CASE WHEN IT IS IMPRACTICABLE FOR THE ORIGINAL CONVENING AUTHORITY TO ACT.

II

WHETHER THE AFORESAID JAG-MAN PROVISION CREATES AN ENFORCEABLE INTEREST IN A SERVICEMEMBER WHOSE SENTENCE IS APPROVED BY AN ARTICLE 60 ACTION TAKEN BY AN OTHERWISE STATUTORILY QUALIFIED SUBSTITUTE GENERAL COURT-MARTIAL AUTHORITY WHOSE DESIGNATION AS SUCH DEVIATES FROM THE PROCEDURES SET FORTH IN THE JAG-MAN PROVISION AT ISSUE BECAUSE HE WAS NOT WITHIN THE DESIGNATED CHAIN OF COMMAND.

FACTS

On August 24 and September 5, 1990, the Staff Judge Advocate for the convening authority, Commanding General, 1st Marine Division, served his post-trial recommendation on trial defense counsel and appellant. On August 24, 1990, the Commanding General, 1st Marine Division, entered into a memorandum of understanding (MOU) with the Commanding General, Marine Corps Base (MCB), Camp Pendleton. Under this agreement the Commanding General, MCB, Camp Pendleton, was to act as the general court-martial convening authority for elements of the 1st Marine Division that remained at Camp Pendleton as 1st Marine Division (Rear) while the rest of the Division deployed to Operation Desert Shield/Storm. On August 29, 1990, the MOU was made applicable to post-trial actions. On November 2, 1990, the Commanding General, MCB, Camp Pendleton, took action on this case. We take judicial notice that Iraq invaded Kuwait on August 1, 1990. This resulted in a massive mobilization of U.S. Forces, Operation Desert Shield/Storm, including the 1st Marine Division, and Allied Forces under the control of the Commander-in-Chief, Central Command.

DISCUSSION

Article 60(c)(1), UCMJ, 10 USC § 860(c)(1) (1983), addresses the convening authority’s post-trial review functions and provides:

Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.

There would have been no question that the Commanding General, MCB, Camp Pendleton, would qualify as “a commissioned officer commanding for the time being” if the Secretary of the Navy had issued regulations so empowering him under circumstances like those presented here.

That does not appear to have been the case, however. In fact, the only relevant regulatory provision that has been drawn to our attention is what is now § 0151(b)(2), Manual of the Judge Advocate General of the Navy (JAGMAN), JAG Instruction 5800.7C (3 Oct.1990), which provides that, when “it is impracticable for” a convening authority of a command “in the chain of command of the Commandant of the Marine Corps” to take post-trial action in a case, “that person shall cause the record of trial to be forwarded to an officer exercising general court-martial jurisdiction over the command.” The officers exercising general court-martial convening authority over the 1st Marine Division were, in ascending order: the Commander of I Marine Expeditionary Force; the Commanding General, Fleet Marine Force Pacific; the Pacific Fleet Commander; and Commander-in-Chief, Central Command. 35 MJ at 611. The Commanding General, MCB, Camp Pendleton, is nowhere in this chain.

Nonetheless, it is not difficult to sympathize with the plight of the Commanding General, 1st Marine Division, who was about to deploy while leaving elements of his command behind. See generally RCM 1107(a), Discussion, Manual for Courts-Martial, United States, 1984 (“It would be impracticable for the convening authority to take initial action when, for example, ... a command has been alerted for immediate overseas movement ... ”). In his absence, someone had to exercise practical as well as legal command over the Division’s Rear elements, yet none of the commands mentioned above were nearby. For instance, the Marine Expeditionary Force, too, was in Southwest Asia, and the Pacific Fleet Commander was thousands of miles away in Hawaii. Under such circumstances, these superior commands do not obviously seem any more available to perform the post-trial functions in cases like this one than was the 1st Marine Division commander himself.

In United States v. Jette, 25 MJ 16, 18 (1987), this Court had occasion to observe:

The power to convene a court-martial, appoint or replace members, and approve findings and sentence is a power that Congress has traditionally reserved for command. Its concern is not technical, but functional, because military justice plays an important role in the readiness of our servicemembers to wage war. In such a context, we are not justified in attaching jurisdictional significance to service regulations [that arguably were violated as to assumption of command] in the absence of their express characterization as such by Congress.

(Citations omitted.) Referring to Jette, this Court expressed similar sentiments in United States v. Yates, 28 MJ 60, 63 (1989):

Again, our primary concern in these cases is to effect the will of Congress in enacting Articles 22, 23, and 24, UCMJ, 10 USC §§ 822, 823, and 824, respectively. The realities of command, not unexecuted technical possibilities, best satisfy the purpose of these statutes.

It is this notion of “[t]he realities of command” that leads us to conclude here that the Commanding General, Camp Pendleton, was acting as the de facto commander for the time being. Naval regulations at the time of this event did not provide for the legal impact of the practicalities of mobilization and rapid deployment. Nonetheless, neither Congress nor the Department of the Navy could possibly have contemplated that, when the 1st Marine Division departed and left some elements at Camp Pendleton while the bulk of the division — including its commander— went half-way around the world, the rear elements would be left without a commander.

The rationale of Jette and Yates indicates that Commanding General, Camp Pendleton, as the de facto commander for the time being of the Division’s Rear elements, could lawfully exercise the general court-martial convening authority of that element of the command. On this basis, we answer the first certified question in the negative. This disposition makes it unnecessary to answer the second certified question.

The decision of the United States Navy-Marine Corps Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further review under Article 66, UCMJ, 10 USC § 866.

Chief Judge SULLIVAN and Judges COX and WISS concur.

See infra, 37 MJ at 167.