United States v. Watson

35 M.J. 602, 1992 CMR LEXIS 603, 1992 WL 181034

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: June 12, 1992
• Docket: NMCM 90 3661
• Status: Published

Opinions

En banc.

ORB, Senior Judge:

In accordance with his pleas, the appellant 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, of conspiring to commit forgery and larceny, of stealing a wallet valued at $120, and of forging signatures on seven different charge card sales receipts in violation, respectively, of Articles 92, 81, 121, and 123, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 881, 921, 923 (1988). He was sentenced by the military judge sitting alone to confinement for 6 months, reduction to pay grade E-l, forfeiture of all pay and allowances, and a bad-conduct discharge.

Before this Court, the appellant assigns four errors¹ and we specified an additional issue² based on the Secretary of the Navy’s regulations implementing Article 60(c)(1), UCMJ,³ and Rule for Courts-Martial (R.C.M.) 1107(a), Manual for Courts-Martial (MCM), United States, 1984. Because our disposition of the specified issue requires a new convening authority’s action, we need not address the errors assigned by the appellant. We do suggest, however, that in any subsequent action on this case particular consideration be given to that portion of the appellant’s first assignment which concerns his ability to plead guilty providently to the on-base possession of a sword in violation of a rather ambiguous paragraph of a base order that does not mention or otherwise identify swords.

The specified issue concerns the post-trial handling of the appellant’s record of trial. The staff judge advocate (SJA) for the convening authority, Commanding General, 1st Marine Division, prepared his post-trial recommendation on 18 August 1990 and served copies of that recommendation on the trial defense counsel and the appellant on 24 August and 5 September 1990, respectively. Also on 24 August, the convening authority entered into a memorandum of understanding (MOU) with the Commanding General, Marine Corps Base, Camp Pendleton, (CG, MCB Camp Pendleton) for the latter general officer 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 1st Marine Division and its Commanding General deployed as part of Operation Desert Shield.⁴ Sometime thereafter, the record of trial in the appellant’s case was forwarded to the SJA for CG, MCB Camp Pendleton, and that SJA submitted his post-trial recommendation⁵ on 1 November 1990. Pursuant to the MOU, CG, MCB Camp Pendleton, then acted on the case on 2 November 1990.

Our specified issue questions whether the MOU between these two general court-martial authorities could properly transfer the authority to take the post-trial action on this case in light of the Secretary of the Navy’s regulations implementing Article 60(c), UCMJ, and R.C.M. 1107(a). These regulations are promulgated in the Manual of the Judge Advocate General of the Navy (JAGMAN). The version of the JAGMAN applicable to the appellant’s case is reflected in Change 6 of 22 April 1987 to Judge Advocate General (JAG) Instruction 5800.7B of 1 July 1978. Section 0145, entitled “Initial review and action,” is found in Subpart B3, “POST-TRIAL MATTERS,” of Part B, “COURTS-MARTIAL,” of Chapter I, “REGULATIONS IMPLEMENTING AND SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL.” Under the heading, “When impracticable for convening authority to act,” subsection 0145b provides:

(1) For commands in the Navy chain of command, if it is impracticable for the person who normally would take action as convening authority to do so, that person shall cause the record of trial to be forwarded in the absence of specific direction to the contrary by an officer authorized to convene general courts-martial and superior in the chain of command to the convening authority, to the area coordinator or a subordinate commander authorized to convene general courts-martial and designated by the area coordinator for this purpose. For mobile units, the area coordinator or designated subordinate commander is the area coordinator or designated subordinate commander most convenient at the time of forwarding of the record. The letter or message which causes the record to be so forwarded shall contain a statement of the reasons why the normal convening authority could not act on the record, and any other matters deemed appropriate by the forwarding officer.

(2) For commands in the chain of command of the Commandant of the Marine Corps, if it is impracticable for the person who normally would take action as convening authority to do so, that person shall cause the record of trial to be forwarded to an officer exercising general court-martial jurisdiction over the command. The letter or message which causes the record to be so forwarded shall contain a statement of the reasons why the normal convening authority could not act on the record, and any other matters deemed appropriate by the forwarding officer.

(Emphasis added.) The identical provision now appears in Section 0151b of the current JAGMAN, JAG Instruction 5800.7C of 3 October 1990. The “letter or message” in this case is the 24 August 1990 memorandum of understanding and its 29 August 1990 supplement, which were enclosures to the SJA’s 1 November 1990 recommendation to CG, MCB Camp Pendleton.

Although the regulation applicable to the Marine Corps does not expressly require the officer exercising general court-martial jurisdiction over the command to take the action, we find no reasonable basis to conclude otherwise. There would be no purpose in having one regulation for the Navy, which expressly permits an officer exercising general court-martial jurisdiction over the command convening the court-martial to direct where the record of trial may be sent for the post-trial action, and a separate regulation for the Marine Corps, which contains no such permission, if the authority to send the record elsewhere for the post-trial action could be read into the latter provision by implication.

Our position is also supported by the historical development of the language in the regulation applicable to the Marine Corps. When JAG Instruction 5800.7B was initially promulgated in 1978, a special court-martial that resulted in an approved bad-conduct discharge but which was convened by an officer who was not an officer exercising general court-martial jurisdiction had to be forwarded for review to an officer exercising general court-martial jurisdiction. if 94a(3), MCM, 1969 (Rev.).⁶

(a) For activities in a Navy chain of command____

(b) For activities in the chain of command of the Commandant of the Marine Corps, review will be accomplished by the officer ordinarily exercising general court-martial jurisdiction over the command.

In the event review by any of the foregoing is impracticable ... any other officer authorized to convene general courts-martial may be requested to accept records of trial for review.

Section 0125b(2), JAG Instruction 5800.7B of 1 July 1978 (emphasis added). This provision remained intact until the promulgation of the Interim Change of 17 July 1984 to JAG Instruction 5800.7B following the substantial revision of post-trial review procedures in the 1983 modification of the UCMJ, Military Justice Act of 1983, Pub.L. No. 98-209, 97 Stat. 1393, and the promulgation of the 1984 MCM. This Interim Change first used the language we have already quoted from Change 6 to the 1978 JAGMAN and deleted both the word “ordinarily” and the entire provision concerning what was to occur if it was “impracticable” for the review to be conducted by the officer exercising general courts-martial authority over the command. We have no basis to assume such deletions were inadvertent or unintentional.

From information submitted to us in response to other orders we have issued in this case, we find that the 1st Marine Division was and is a command in the chain of command of the Commandant of the Marine Corps for the purposes of JAGMAN Section 0145b, as was 1st Marine Division (Rear), and that neither the 1st Marine Division nor the 1st Marine Division (Rear) was in a chain of command that included CG, MCB Camp Pendleton, at any time relevant to the post-trial processing of the appellant’s case.⁷ Consequently, the MOU attempted to transfer responsibility for taking post-trial actions on courts-martial contrary to the Secretary of the Navy’s implementing regulation. The issue then arises as to the legal significance of the purported action by CG, MCB Camp Pendleton. To put the issue another way: Does this Court have a valid convening authority’s action approving the findings and sentence on which the Court may properly base its review of the appellant’s case under Article 66(c), UCMJ, 10 U.S.C. § 866(c)? ⁸ We answer the question in the negative.

Article 60(c)(1) of the UCMJ states:

The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. 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.

10 U.S.C. § 860(c)(1) (1988) (emphasis added.) In addition, Article 60(c)(2) also provides:

Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in his sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part.

10 U.S.C. § 860(c)(2) (1988) (emphasis added). These provisions express the Congressional intention to delegate to the Secretary concerned the authority to further modify who “may act under this section in place of the convening authority” within the parameters of the categories expressly delineated by Congress in Article 60(c)(1).

R.C.M. 1107(a) states that the convening authority shall act on the sentence and the findings unless it is impracticable, and “[i]f it is impracticable for the convening authority to act, the convening authority shall, in accordance with such regulations as the Secretary concerned may prescribe, forward the case to an officer exercising general court-martial jurisdiction who may take ,action under this rule.” Although the placement of the reference to the Secretary’s regulations in R.C.M. 1107(a) alone might suggest that the Secretarial authority described in the Rule is limited to prescribing the manner or method of forwarding a case, the statute more clearly indicates otherwise, and the Secretary of the Navy, through the substance of his regulations, obviously agrees.

An administrative regulation issued pursuant to a statutory authorization has the full force and effect of the law. See United States v. St. Bernard Parish, 756 F.2d 1116, 1124-25 (5th Cir.1985), cert. denied, 474 U.S. 1070, 106 S.Ct. 830, 88 L.Ed.2d 801 (1986); United States v. Wheeler, 27 C.M.R. 981, 989 (A.B.R.1959); United States v. Christian, 22 C.M.R. 780, 784 (A.B.R.1956). “It is elemental that ‘[i]f the words used in the statute convey a clear and definite meaning a court has no right to look for or to impose a different meaning.’ ” United States v. Graham, 16 MJ. 460, 462 (C.M.A.1983) (quoting United States v. Dickenson, 6 C.M.A. 438, 449, 20 C.M.R. 154, 165 (1955)). This “elemental” rule applies equally to the application of an administrative regulation issued pursuant to a statutory authorization. So also does the rule that “[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous____” 2A Norman J. Singer, Sutherland’s Statutory Construction § 46.06 (5th ed. 1992). We are not at liberty to ignore part of the Secretary’s implementing regulation simply because we think neither he nor Congress could have intended a particular result that flows from a clear and obvious application of the implementing regulation.⁹

We have found no cases applying or interpreting this aspect of Article 60(c) of the Code. The Government has cited several cases to us, however, that concern other articles of the UCMJ that address the designation of officers authorized to convene courts-martial and the effect of administrative regulations in the application of those articles. In United States v. Jette, 25 M.J. 16 (C.M.A.1987), the Court of Military Appeals declined to attach jurisdictional significance to U.S. Air Force regulations affecting the authority of the Air Force officer who had convened the court-martial “in the absence of ... [the regulations’] express characterization as ... [jurisdictional] by Congress.” 25 M.J. at 18. In Jette, however, the Court was concerned with Article 23(a)(4), UCMJ, 10 U.S.C. § 823(a)(4) (1988), and service regulations concerning the assumption of command when an officer who had temporarily but properly relieved the commanding officer of a combat support group was himself relieved when the commanding officer returned and purported to amend the special court-martial convening order issued by the officer who had been in temporary command. Since the commanding officer of a group of the Air Force is specifically empowered by Congress in Article 23(a)(4) without qualification to convene special courts-martial, the Court stated that “Article 23(a)(4), unlike Article 23(a)(7) [which authorizes the convening of special courts-martial by commanding officers of other, unspecified commands when empowered by the Secretary concerned], reflects Congress’ concern for the realities of command, not the intricate dictates of service regulations.” 25 M.J. at 19. In reaching that conclusion, the Court of Military Appeals overturned the Air Force Court of Military Review’s decision that the commanding officer had not re-assumed command in accordance with those service regulations and was, therefore, not empowered to act as a convening authority. Id.

The Court of Military Appeals in Jette simply determined as a practical matter whether the commanding officer had in fact re-assumed command and was not deterred by the technical requirements of the service regulations in question. The Court employed the same approach 2 years later in United States v. Yates, 28 M.J. 60 (C.M.A.1989), where the deputy post commander at Fort Sheridan issued an amended convening order during the temporary absence of the commander even though the deputy was not the most senior officer present for duty at the fort when the order was issued. In construing Article 22(a)(8), UCMJ, 10 U.S.C. § 822(a)(8) (1988), which authorizes the convening of general courts-martial by “any other commanding officer designated by the Secretary concerned”, the Court found that the Secretary of the Army had designated “the commanding officer of Fort Sheridan” pursuant to Congress’ delegation but concluded that “[t]he realities of command, not unexecuted technical possibilities, best satisfy the purpose of these statutes.” 28 M.J. at 63 (citation omitted). Consequently, the Court applied the presumption of regularity and found no illegality in the fact that the deputy was 29 days junior to another officer present for duty at the command.

The secretarial regulations the Court of Military Appeals declined to apply in Jette and Yates were not regulations Congress contemplated when Articles 22(a) and 23(a) were enacted. This is readily apparent in Jette where the subdivision of Article 23(a) on which the authority to convene the court-martial in that case was based did not include any reference to the exercise of secretarial discretion. Although the authority to convene the court in Yates did rely upon a specific delegation of authority to the secretary concerned, the Court of Military Appeals declined to look behind the ostensible exercise of that authority to determine whether technical requirements for ascending to command, which were entirely separate and apart from the Secretary of the Army’s designation of the commanding officer of Fort Sheridan as an officer authorized to convene general courts-martial pursuant to the Congressional delegation, had been satisfied.

Unlike Jette and Yates, we are not faced with some technical irregularity concerning a particular individual who may or may not have been “in command” or “in the chain of command” but with Congress’ express proviso contemplating the issuance of Secretarial regulations further implementing the Congressional delineation of who may act in the place of the convening authority when post-trial action is to be taken on a particular case¹⁰ and an implementing action by the Secretary pursuant to that delegation. Consequently, we are not at liberty to ignore as “non-jurisdictional” the Secretary of the Navy’s restriction that for such actions, for commands in the chain of command of the Commandant of the Marine Corps, records of trial shall be “forwarded to an officer exercising general court-martial jurisdiction over the command” vice the broader category of “any person exercising general court-martial jurisdiction” as used by Congress in Article 60(c)(1).¹¹

Accordingly, the action of Commanding General, Marine Corps Base, Camp Pendleton, dated 2 November 1990, is set aside. The record of trial will be returned to the Judge Advocate General for a new action by Commanding General, 1st Marine Division, or a different convening authority in accordance with Article 60(c)-(e), UCMJ.

Chief Judge WILLEVER, and Judges REED, MOLLISON and LAWRENCE concur.

1 . I. THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO VIOLATING A LAWFUL GENERAL ORDER WHICH PROHIBITED THE ON-BASE TRANSPORT OF A KNIFE WITH A BLADE IN EXCESS OF TWO AND ONE-HALF INCHES WHERE APPELLANTS STATEMENTS DURING THE PROVIDENCE INQUIRY INDICATED THAT HE TRANSPORTED, ON BASE, A SOUVENIR SWORD PURSUANT TO AN ORDER FROM HIS PLATOON SERGEANT TO REMOVE THE SWORD FROM THE BARRACKS.

II. THE CONVENING AUTHORITY ERRED IN TAKING ACTION BEFORE ALLOWING APPELLANT TEN DAYS FROM THE DATE OF THE ADDENDUM STAFF JUDGE ADVOCATE’S RECOMMENDATION TO SUBMIT MATTERS IN RESPONSE THERETO.

III. THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANTS PLEA OF GUILTY TO VIOLATING A LAWFUL GENERAL ORDER WHERE THE ORDER WAS, IN FACT, SIGNED BY THE CHIEF OF STAFF. [Citation omitted.]

IV. THE CONVENING AUTHORITY ERRED BY TAKING ACTION WHERE THE TWO STAFF JUDGE ADVOCATE RECOMMENDATIONS REPRESENTED TO THE CONVENING AUTHORITY THAT APPELLANT HAD NOT SUBMITTED ANY MATTERS FOR HIS CONSIDERATION WHEN, IN FACT, APPELLANT HAD SUBMITTED TO THE NAVAL CLEMENCY AND PAROLE BOARD A CLEMENCY REQUEST WHICH, PRIOR TO THE RECOMMENDATIONS, HAD BEEN ATTACHED TO AND MADE PART OF THE RECORD OF TRIAL FOR THE CONSIDERATION OF THE CONVENING AUTHORITY.

2 . WAS THE CONVENING AUTHORITY’S MEMORANDUM DESIGNATING THE COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON, AS THE GENERAL COURT-MARTIAL AUTHORITY FOR SERVICEMEMBERS ASSIGNED TO 1ST MARINE DIVISION (REAR) AUTHORIZED BY JAGMAN 0145b(2) (SUBPARAGRAPH 0145b(2) OF JAG INSTRUCTION 5800.7B OF 1 JULY 1978)?

A. WAS THE COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON, AN OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION OVER THE COMMAND OF THE COMMANDING GENERAL, 1ST MARINE DIVISION, IN AUGUST 1990?

B. WAS THE COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON, AN OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION OVER THE 1ST MARINE DIVISION (REAR) IN AUGUST 1990 AND, IF SO, BY WHAT AUTHORIZATION?

C. IF THE PERSON WHO NORMALLY WOULD TAKE ACTION ON A RECORD OF TRIAL AS THE CONVENING AUTHORITY IS HIMSELF AN OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION, DID JAGMAN 0145b(2) AUTHORIZE THAT OFFICER TO DIRECT AN ELEMENT OF HIS COMMAND TO FORWARD RECORDS OF TRIAL FOR CONVENING AUTHORITY ACTIONS TO AN OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION WHO IS NOT OTHERWISE “OVER THE COMMAND”?

3 . 10 U.S.C. § 860(c)(1) (1988).

4 . The 24 August MOU was clarified by a 29 August 1990 supplement that extends the application of the initial MOU to post-trial actions.

5 . The SJA for the substitute convening authority merely adopted the earlier 18 August 1990 recommendation as his own.

6 . “The Secretary concerned may, however, provide by regulation for forwarding of the record in appropriate cases to any officer exercising general court-martial jurisdiction, who shall be considered ‘the officer exercising general court-martial jurisdiction over the command’ within the meaning of Article 65(b) [of the 1951 UCMJ as amended in 1968]." ¶ 94a(3), MCM, 1969 (Rev.). The post-trial review of general courts-martial prior to 1984 fell under the general language of Article 60 of the 1951 UCMJ, as amended, which stated: “After a trial by court-martial the record shall be forwarded to the convening authority, and action thereon may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command, or any officer exercising general court-martial jurisdiction." 10 U.S.C. § 860 (1976).

7 . Prior to our order requesting additional information concerning the various chains of command that might apply in this case, the Government argued that R.C.M. 601 and the discussion thereunder would permit any U.S. Marine Corps officer exercising general court-martial jurisdiction to take action on this case as the convening authority. While such a broad interpretation may apply to the convening of a court-martial in the first instance, we do not think R.C.M. 601 and the discussion of that Rule were intended either to obviate the more restrictive language of Article 60(c), UCMJ, and R.C.M. 1107(a) or to permit the indiscriminate substitution of officers exercising general court-martial jurisdiction following the conclusion of the trial. See United States v. Delp, 31 M.J. 645 (A.F.C.M.R. 1990); cf. United States v. Gates, 21 M.J. 722 (A.C.M.R.1985). Likewise, we find no merit in the Government’s alternative contention that CG, MCB Camp Pendleton, was empowered to act in this case by virtue of his coordinating responsibilities as "Senior Marine Officer Present” in the Camp Pendleton area. Such an argument would render meaningless, as we have already noted, the obvious distinction intended by the Secretary in promulgating a separate implementing regulation for commands in the Navy chain of command, vice commands in the chain of command of the Commandant of the Marine Corps, which expressly authorizes forwarding records of trial to an area coordinator authorized to convene general courts-martial for post-trial reviews. The implementing language applicable to the Navy differs significantly on this point and would permit the substitution that occurred in this case even without an MOU.

8 . Article 66(c), UCMJ, 10 U.S.C. § 866(c), provides, in part: "In a case referred to it, the Court of Military Review may act only with respect to the findings and sentence as approved by the convening authority____”

9 . Our brothers who dissent from our opinion would give little or no meaning to the Secretary’s use of the phrase "over the command" because, in their view, the phrase does not implement what they perceive, without any legislative history to guide them, to be the purpose of Congress in amending Article 60 in 1983. Our function as a court of law is to interpret and apply the law as it has been enacted or promulgated consistent with applicable precedent. We are not at liberty to re-craft the Code or the Secretary's implementing regulation to make either of them more flexible in time of war or any other time. "As a court ... we are not involved in the merits of ... policy." United States v. Henderson, 34 M.J. 174, 178 (C.M.A.1992).

10 . This Congressional delegation in Article 60, UCMJ, was added to the UCMJ in the substantial revision of post-trial procedures for trials by courts-martial that occurred in 1983. Military Justice Act of 1983, Pub.L. No. 98-209, § 5(a)(1), 97 Stat. 1393, 1396. The Court of Military Appeals’ decision in Jette may have been determinative of our specified issue under the previous version of Article 60, which contained no delegation of authority to service Secretaries. 10 U.S.C. § 860 (1982).

11 . We are aware of the environment in which this MOU was concluded and that the officers superior to the convening authority in this case were, at that time, involved in the primary function of the armed forces to mobilize for and engage in armed conflict. We appreciate the Government’s desire for flexibility in such circumstances, but we can only assume that the Secretary had other good reasons for imposing the limitation he expressed in Section 0145b(2) of the JAGMAN and not imposing it in Section 0145b(l). We are also aware that the Secretary continued the same limitation in his 1990 implementation of Article 60(c), which was ultimately promulgated several months after Operation Desert Shield began. If the Government now questions the wisdom of the existing implementation, the issue may be raised to the Secretary anew, just as it could have been on or about 24 August 1990 in lieu of proceeding by an MOU.