United States v. Ekenstam

Opinion of the Court ROBERT E. Quinn, Chief Judge: Each accused was separately tried and convicted for violations of Article 134, Uniform Code of Military Justice, [170] 50 USC § 728. Except for the difference in time and place, all the specifications are the same. Representative is the following specification taken from the Ekenstam case: “Specification 1: In that Thomas W. Ekenstam, commissaryman third class, U. S. Navy, U. S. Naval Communication Facility, Yokosuka, Japan, then seaman, did, on or about 10 February 1954, at or near Camp Zama, Japan, violate Article XV of the Administrative Agreement between the United States of America and Japan dated 28 February 1952, by purchasing golf clubs and golf equipment of a value of about $104.00 from the Camp Zama Golf Course, Camp Zama, Japan, a non-appropriated fund organization, authorized and regulated by the U. S. military authorities, and disposing of same in Japan, to Yasuo Kasatani, alias Tommy, a person not authorized to purchase from the said Camp Zama Golf Course.” In each case, the accused entered a plea of guilty and the court-martial imposed a sentence which included a bad-conduct discharge. A board of review set aside the findings of guilty and dismissed the charges on the ground that the specifications failed to allege an offense. A majority of the board of review construed the provisions of the Administrative Agreement set out in the specification as binding only upon the Governments of the United States and Japan and as without penal force in regard to individuals subject to their authority. The Judge Advocate General of the Navy forwarded the cases to this Court. He requested that we determine whether each of the specifications alleges an offense under the Uniform Code of Military Justice. Since the question in each case is the same, the Government moved for an order consolidating the cases for the purposes of the appeal. We granted the motion. Simultaneously with the Treaty of Peace, the United States and Japan entered into a Security Treaty. 3 US Treaties 3329, et seq. Under the terms of the latter, Japan granted and the United States accepted the right to dispose certain of its armed forces in and about Japan for the security of Japan and the maintenance of international peace in the Far East. Article III of the Treaty reads as follows: “The conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments.” ; On February 28, 1952, an Administrative Agreement implementing the Article was signed in Toyko by the representatives of the two Governments. Article XV of the Administrative Agreement reads as follows: “1. (a) Navy exchanges, post exchanges, messes, social clubs, theaters, newspapers and other non-appropriated fund organizations authorized and regulated by the United States military authorities may be established in the facilities and areas in use by the United States armed forces for the use of members of such forces, the civilian component, and their dependents. Except as otherwise provided in this Agreement, such organizations shall not be subject to Japanese regulations, license, fees, taxes or similar controls. “2. No Japanese tax shall be imposed on sales of merchandise and services by such organizations, except as provided in paragraph 1(b), but purchases within Japan of merchandise and supplies by such organizations shall be subject to Japanese taxes. “3. Except as such disposal may be authorized by the United States and Japanese authorities in accordance with mutually agreed conditions, goods which are sold by such organizations shall not be disposed of in Japan to persons not authorized to make purchases from such organizations. ! “4. The obligations for the withholding and payment of income tax and of social security contributions, and, except as may otherwise be [171] mutually agreed, the conditions of employment and work, such as those relating to wages and supplementary payments, the conditions for the protection of workers, and the rights of workers concerning labor relations shall be those laid down by the legislation of Japan. “5. The organizations referred to in this Article shall provide such information to the Japanese authorities as is required by Japanese tax legislation.” In our opinion, the Administrative Agreement is intended to define the rights and obligations of the signatory Governments, not to prescribe the conduct of individuals or organizations subject to their authority. See The Over The Top, 5 F2d 838, 845 (D Conn) (1925); Oppenheim’s International Law, Lauter-pacht’s 8th ed, § 520, page 924. However, even if the Administrative Agreement were to be so construed, Article XV applies to organizations, not to persons ; consequently, that article does not prohibit the conduct alleged in the specifications. It is well settled that an incorrect designation of a statute or regulation violated by the accused does not invalidate the specification of a charge. If the conduct is proscribed by another regulation and no “additional or different principle of law is required to support the conviction; and the accused has no burden of defense which he did not have at the trial,” he is not harmed by the incorrect designation. United States v Blevens, 5 USCMA 480, 485, 18 CMR 104. Several other regulations have been referred to as bearing on the subject matter. Additionally, Government appellate counsel argue that Navy custom prohibits the acts set out in the specifications. Only two of the regulations have direct pertinency; one is a local order by the commanding officer of the accused’s organization and' the other is a Far East Command general order. Both of these, however, permit defenses which would not have been available to the accused under the Administrative Agreement. As for the custom relied upon by Government counsel, it is obvious that there is also a material difference between preparing a defense against an alleged custom and a defense against a statute. Accordingly, it would deprive the accused of a substantial right if the specifications were sustained upon the basis of a different regulation or custom. The certified question is answered in the negative. The decision of the board of review is affirmed.