United States v. Whitcomb

1 M.J. 230, 1975 CMA LEXIS 589

• Court: United States Court of Military Appeals
• Decided: November 28, 1975
• Docket: No. 30,648
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

At a trial by special court-martial, the accused pleaded guilty to violating a general regulation by possessing certain explosive devices.¹ Although no complaint was made at trial, counsel for the accused now urge that the specification under the charge fails to allege an offense in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892.

Our examination of the described directive² indeed verifies that it expresses only policy, and not proscription, applicable to individuals. The language encompassing the accused’s acts is contained in the section denominated “POLICY” and lists many activities that are sought to be controlled absent authorizing action by competent authority. Furthermore, under the heading “RESPONSIBILITIES” it contemplates “implementing the provisions of the directive” by subordinate commanders of the promulgating authority and provides that the “[implementing instructions . will contain specific prohibitions and action directives affecting individual conduct.”³ Considering the regulation “in its entirety,” we are impelled to the conclusion that it does “not qualify as a general order for the purpose of an Article 92 prosecution.” United States v. Nardell, 21 U.S.C.M.A. 327, 329, 45 C.M.R. 101, 103 (1972).

The decision of the U.S. Army Court of Military Review is reversed and the findings and sentence are set aside. The Charge and its specification are dismissed.

1 . The plea was pursuant to a pretrial agreement containing a provision condemned in United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975).

2 . United Nations Command/United States Forces Korea Policy Directive No. 3-13, paragraph 3g (Aug. 31, 1970).

3 . Id. at paragraph 9a.