United States v. White

19 M.J. 652
CourtU S Coast Guard Court of Military Review
DecidedOctober 29, 1984
DocketCGCMS 23720; Docket No. 858
StatusPublished

This text of 19 M.J. 652 (United States v. White) is published on Counsel Stack Legal Research, covering U S Coast Guard Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. White, 19 M.J. 652 (cgcomilrev 1984).

Opinion

DECISION

CEDARBURG, Chief Judge.

Appellant was tried by special court-martial, military judge alone, on 21-23 July 1982. Contrary to his pleas, he was found guilty of absence without leave from 23 February 1982 to 12 March 1982, larceny of currency, property of the United States, of a value of more than $100, disrespect in language to a Chief Petty Officer and failure to obey the order of a Chief Petty Officer in violation of Articles 86,121, 91 & 92, UCMJ, 10 U.S.C. §§ 886, 921, 891, 892. He was sentenced to a bad conduct discharge, confinement at hard labor for 3 months, forfeiture of $300 pay per month for 3 months and reduction to pay grade E-l. The sentence was approved without change by the convening and supervisory authorities. Upon completion of confinement on 7 October 1982, appellant was placed on required appellate leave provided [518]*518for by Article 76a, UCMJ, 10 U.S.C. § 876a and remains in that status. Appellant was erroneously placed on required appellate leave at the time of the completion of his confinement but before the action of the officer exercising general court-martial authority approved the sentence on 14 February 1983. Appellant was subsequently authorized and paid back pay and allowances from 7 October 1982 to 14 February 1983 as a result of an Article 138, UCMJ, 10 U.S.C. § 938 complaint. Appellant has alleged the following errors:

I
THE MILITARY JUDGE ERRED TO THE MATERIAL PREJUDICE OF APPELLANT IN DENYING THE DEFENSE MOTION TO DISMISS CHARGES III and IV.
II
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A FINDING OF GUILTY AS TO CHARGE II.
III
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A FINDING OF GUILTY AS TO CHARGE IV.
IV
THE MILITARY JUDGE ERRED TO THE MATERIAL PREJUDICE OF APPELLANT IN ADMITTING PROSECUTION EXHIBITS 24, 27, 28, 32 and 33.
V
APPELLANT HAS BEEN PREJUDICED BY THE INORDINATE DELAY EXPERIENCED IN THE POST-TRIAL REVIEW OF THIS CASE.
VI
THE RECORD OF TRIAL IS INCOMPLETE AND MUST BE RETURNED TO THE CHIEF COUNSEL BEFORE IT CAN BE CONSIDERED BY THIS COURT.
VII
THE INVOLUNTARY APPELLATE LEAVE SYSTEM ITSELF, AND AS APPLIED IN THIS CASE, DENIED APPELLANT DUE PROCESS AND EQUAL PROTECTION OF LAW, AND IS SUBJECTING APPELLANT TO ADDITIONAL AND UNUSUAL PUNISHMENT.

We choose to exercise our statutory fact-finding authority in this case. In the exercise of that function we find the following pertinent, operative facts. Appellant, a member of the U.S. Coast Guard, was attached to the U.S. Coast Guard Support Center, Governors Island, New York, during February 1982. His duties at that time were as an assistant to the petty officer in charge of the Clothing Locker. One of his duties was to act as cashier at the Clothing Locker, operating the cash register and maintaining control and custody of the cash register receipts. On 20 February 1982, appellant was the sole cashier at the Clothing Locker from the time it opened at 0900 until it closed at 1500. The Clothing Locker was closed from closing time, 20 February 1982 until opening time 23 February 1982. The petty officer in charge discovered a shortage of U.S. currency, determined by audit to be $903.10, which was the property of the United States, when he opened the Clothing Locker on 23 February. The U.S. currency determined to be missing was stolen by the appellant on 20 February 1982. Appellant then departed Governors Island and checked into a motel in Atlantic City, New Jersey later that evening. He checked out the following day, 21 February 1982 and returned to U.S. Coast Guard Support Center, Governors Island. Appellant absented himself, without authority, such absence commencing 23 February 1982 and he remained an unauthorized absentee until 12 March 1982. We further find that appellant received and had knowledge of an order from a Chief Petty Officer [519]*519to remove a “walkman radio” while in uniform and failed to obey the order on 2 July 1982. During the incident involving the disobeyed order, he was patently disrespectful in language to the Chief Petty Officer. Appellant first advised his defense counsel in early May 1982 that he had been robbed of the Clothing Locker receipts by two assailants who also threatened to “dispose” of him if he reported the robbery. Coast Guard Intelligence was notified of appellant’s report by his defense counsel in early May 1982. In view of the circumstantial evidence of guilt and appellant’s poor reputation for truth and veracity, we specifically find that appellant’s testimony regarding the robbery and threat was contrived and not credible.

We now consider in turn each of appellant’s assignments of error.

I

Appellant asserts, citing paragraphs 26c and 1286, MCM 1969 (Rev.), that the military judge erred when he denied the defense motion to dismiss Charges III & IV as a joinder of major and minor offenses. We reject his contention. Charge III alleged that appellant was disrespectful in language to a Chief Petty Officer. The maximum punishment authorized for disrespect to a petty officer is confinement at hard labor and forfeiture of two-thirds pay per month, each for a period of 6 months. Charge IV alleged that appellant failed to obey an order of a Chief Petty Officer. The maximum punishment for that offense is a bad conduct discharge, and confinement and forfeiture of two-thirds pay per month each for a period of 6 months. Reduction to the lowest enlisted pay grade would also be authorized. Paragraph 26c, supra is discretionary, not mandatory. Paragraph 1286, supra does not define, as contended by appellant, minor offenses as “misconduct of a kind which, if tried by general court-martial, could be punished by dishonorable discharge or confinement for more than one year.” The quotation is incomplete. The complete sentence conveys a different meaning thus: “[t]his term [minor] ordinarily does not include misconduct of a kind which, if tried by general court-martial, could be punished by dishonorable discharge or confinement for more than one year.” The specific provision of the Manual cited does not define; it is rather a sentence of exclusion, not inclusion. In context, the whole of paragraph 1286 discloses more generalized criteria for determining whether an offense is minor. Pertinent to such determination is the instruction that, “[generally, the term ‘minor’ includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial.” Id.

This Court has recently observed, in holding that the convening authority did not abuse his discretion by a joinder of charges, that paragraphs 26c, 30# and 336 MCM 1969 (Rev.) must be read together and considered under the circumstances in determining whether there has been an abuse of discretion requiring dismissal of joined charges. United States v. Ward, C.G.C.M.S. 23727 (C.G.C.M.R. 14 May 1984).

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Bluebook (online)
19 M.J. 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-white-cgcomilrev-1984.