United States v. Briscoe

Opinion of the Court Quinn, Chief Judge: Charged with larceny; the commission of an indecent, lewd, and lascivious act; and failure to obey a lawful order, in violation of Articles 121, 134, and 92 of the Uniform Code of Military Justice, 10 USC §§ 921, 934, and 892, respectively, the accused was found guilty, and sentenced to dishonorable discharge. Intermediate appellate authorities affirmed the conviction. We granted the accused’s petition for review to consider whether the law officer erred in instructing that any discharge in the case of a warrant officer “must be a dishonorable discharge.” Among other matters, the law officer instructed the court-martial that a “discharge in the case of a warrant officer as adjudged by a general court-martial, must be a dishonorable discharge.” Apparently, the instruction was based upon the following passage in paragraph 126d of the Manual for Courts-Martial, United States, 1951: “. . . In general, any limitation as to the punishment that may be imposed on an officer (see Art. 1(5)) by a court-martial is applicable in the ' case of a warrant officer. Except as noted hereafter, an officer cannot, by sentence of a court-martial, be . . . sentenced to bad conduct discharge. . . . The separation from the service of a warrant officer by sentence of court-martial is effected by dishonorable discharge.” The Uniform Code does not prescribe the form of punitive separation that may be imposed by a court-martial upon a particular accused. However, a number of provisions clearly recognize the existence of three different types of separation by court-martial, dismissal, dishonorable discharge, and bad-conduct discharge. See Articles 4,19, 20, 50, 58, 65, 66, 71-75 of the Uniform Code, 10 USC §§ 804, 819, 820, 850, 858, 865, 866, 871-875, respectively. With a few exceptions not applicable here, the Uniform Code leaves the determination of the sentence to the discretion of the court-martial, subject, however, to the maximum limits prescribed by the President. Article 56, Uniform Code of Military Justice, 10 USC § 856. The. question then is whether in providing for separation of a warrant officer by a dishonorable discharge, the President merely prescribed a permissible form of separation or established a compulsory minimum sentence in violation of his authority under the Uniform Code. See United States v Varnadore, 9 USCMA 471, 26 CMR 251; United States v Holt, 9 USCMA 476, 26 CMR 256; United States v Jobe, 10 USCMA 276, 27 CMR 350. United States Code provisions dealing with the organization of the Armed Forces, expressly recognize that the warrant officer group has two separate divisions. There are commissioned warrant officers and those who are not. 10 USC §§ 101 (16), 555. The former are regarded, and treated, as commissioned officers. See 10 USC § 101 (15); United States v Hutchison, 1 USCMA 291, 3 CMR 25. The punitive separation of such persons from the service is by way of dismissal. See Article 71 (b) of the Uniform Code, 10 USC § 871; United States v Bell, 8 USCMA 193, 24 CMR 3. We may, therefore, put this group aside and turn directly to the warrant officer who obtains his rank by warrant of the Secretary of his service rather than by commission of the President. See 10 USC §§ 555, 557, 597. In United States v Ellman, 9 USCMA 549, 26 CMR 329, we referred with approval to the President’s direction that the form of ' punitive discharge which can be imposed by a court-martial upon a warrant officer is the [512] dishonorable discharge. Although not spelled out, the Manual provision is necessarily limited to the warrant officer who is not commissioned. Is this separate classification for punishment purposes valid under the Uniform Code? In other words, can the President properly provide that the only form of punitive separation for a warrant officer not having a commission is a dishonorable discharge, or must he treat such an officer as an enlisted person who, under the Uniform Code, can be separated with a dishonorable discharge or a bad-conduct discharge? In the Bell case, supra, we upheld dismissal as the single form of separation for a commissioned officer; and in Ell-man, supra, we approved the same form of punitive separation for cadets. In our opinion, the separate and specially-recognized status of the warrant officer empowers the President to prescribe a single form for his separation from the service by sentence of a court-martial. Recently, Congress substantially enlarged the Article 15 punishment powers of a commanding officer over personnel in his command. It expressly included among those authorized to impose such punishments, “warrant officers exercising command.” Warrant officers are, in certain situations, authorized to exercise command. See United States v Clements, 1 USCMA 39, 1 CMR 39. As originally enacted, the Uniform Code also demonstrates Congressional understanding that the status of the warrant officer is separate and apart from that of enlisted persons. For example, under Article 9 (c) of the Uniform Code, 10 USC § 809, enlisted persons, whether or not noncommis-sioned, may be ordered into arrest or confinement by any officer, but a warrant officer can be so restrained “only by a commanding officer to whose authority he is subject”; and under Article 20 of the Uniform Code, 10 USC § 820, all enlisted persons are subject to trial by summary court-martial, but a warrant officer is not. In short, the warrant officer has standing and status in the military which is separate from that of commissioned persons and different from that of enlisted personnel. This separateness justifies the President, in carrying out his power to provide the limits of punishment, to treat the warrant officer differently from the other groups as to the form of his punitive separation from the service. Such classification does not constitute the prescription of a minimum sentence for any given offense. United States v Bell, supra. Just as the commissioned officer can only be separated by dismissal, the warrant officer’s form of punitive separation may be limited to a dishonorable discharge.1 Practically, there is no real difference between calling a sentence providing for separation under conditions of dishonor a dismissal, or describing it as a dishonorable discharge. United States v Bell, supra. Accordingly, the law officer’s instruction was correct, and we affirm the decision of the board of review. Cf. United States v Morlan, 24 CMR 390. Judge Kilday concurs. Footnotes [1] We note that earlier Army Manuals provided for dismissal for all warrant officers, commissioned or not. See Manual for Courts-Martial, U. S. Army, 1921, paragraph 310a; Manual for Courts-Martial, U. S. Army, 1928, paragraph 103c. The practice was apparently changed in 1943. United States v LaLone, 28 BR 165, 167.