United States v. Keeler

Opinion of the Court Homer Ferguson, Judge: By certificate of The Judge Advocate General of the Air Force,1 we are asked to review the correctness of the board of review’s dismissal of the charges against the accused on the ground that the specifications fail to allege an offense in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892. Representative of the specifications in issue is the following: “In that BASIC AIRMAN JACK W. KEELER, United States Air Force, 1503rd Air Base Squadron, did, at Tachikawa City, Japan, on or about 2 May 1958, violate a lawful general regulation, to wit: Paragraph 6a (3), Tachikawa Air Base Regulation 35-3, dated 28 February 1958, by being in Tachikawa City, Japan, without having in his possession a DD Form 345, Standard Pass.” A board of review held that the Tachikawa Air Base was not a major command. Consequently, the board concluded that the regulation promulgated by the command was not a “general order or regulation” within the meaning of Article 92, subsection (1). The board of review noted that the specifications did not allege the accused had knowledge of the regulations. See Manual for Courts-Martial, United States, 1951, Appendix 6c, Form 29, page 476. It held that the omission of such an allegation was a fatal defect and that the specification therefore did not allege an offense under Article 92, subsection (2). It based its determination upon the decision of this Court in United States v Bunch, 3 USCMA 186, 11 CMR 186. In that case we held that a specification which purports to charge a violation of an order emanating from a commander who has no authority to issue a general order is legally insufficient if it fails to allege the accused had knowledge of the order. The Government contends the board of review erred in its conclusions. First, it argues that the command occupies “a substantial position in effectuating the mission of the service” (see United States v Brown, 8 USCMA 516, 25 CMR 20) and, therefore, is a major command with authority to promulgate-general orders within the meaning of Article 92 (1) of the Uniform Code. The record of trial, however, indicates [321] that the command, at least at the time action was taken on this case, did not possess general court-martial jurisdiction. In the hierarchy of command, it is not one but many steps “removed” from Department of the Air Force level. From that standpoint, the command cannot be classed as an area command similar to an overseas theater or overseas or territorial department. United States v Stone, 9 USCMA 191, 25 CMR 453. Moreover, lacking general court-martial authority, the command does not even possess the normal indicia of a major command to which we called attention in the Brown case, supra, page 519. Clearly then, under either the narrow view or the broader approach of Brown, the board of review was correct in holding that the specification did not allege an offense under subsection (1) of Article 92, supra. Relying upon the fact that we returned the Brovm case to the board of review for reconsideration of the sentence, the Government maintains the specification is legally sufficient to state a violation of subsection (2), notwithstanding the absence of an allegation of knowledge on the part of the accused. The issue in the Brown ease was whether the challenged order was a “general order” under subsection (1) or another “lawful order” under subsection (2). The sufficiency of the specification was not raised before us and we did not consider the question. The Brown case, therefore, does not contradict or represent a departure from our holding in the Bunch case. See United States v Posnick, 8 USCMA 201, 24 CMR 11. The board of review was thus correct in following the decision in Bunch. For the reasons stated, the certified question is answered in the affirmative and the decision of the board of review is affirmed. Footnotes [1] Article 67 (b), Uniform Code of Military Justice, 10 USC § 867.