Jonathan L. SHAVRNOCH, Airman
U.S. Air Force, Appellant
Crim. App. No. 31564
United States Court of Appeals for the Armed Forces
Argued June 3, 1998
Decided September 30, 1998
For Appellant: Major Kevin P. Koehler (argued); Colonel Douglas H. Kohrt (on brief).
For Appellee: Major Eric D. Placke, USAFR (argued); Colonel Brenda J. Hollis and Lieutenant Colonel Michael J. Breslin (on brief).
Military Judge: James J. Blommers
This Opinion is subject to editorial correction before final publication.
Opinion as amended March 8, 1999
Opinion of the Court
Following mixed pleas, a general court-martial composed of officer members convicted appellant of a variety of offenses, only one of which is at issue in this appeal: violation of a lawful general regulation –- Air Force Regulation (AFR) 215-7 -- by consuming alcohol while under the legal age for doing so, in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892.1 He was sentenced to a bad-conduct discharge, confinement for 2 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results. Both on its initial review and on subsequent remand from this Court, the Court of Criminal Appeals affirmed the trial results. See 47 MJ 564 (1997).
We granted appellant’s most recent petition for review on the following issues:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT APPELLANT'S PLEAS OF GUILTY TO A VIOLATION OF AFR 215-7 CONSTITUTED WAIVER.
WHETHER APPELLANT'S PLEAS OF GUILTY TO ADDITIONAL CHARGE I AND ITS SPECIFICATION ARE IMPROVIDENT SINCE AIR FORCE INSTRUCTION 34-119 (THE SUCCESSOR TO AFR 215-7) HAS BEEN FOUND TO BE NON-PUNITIVE.
I. NATURE OF THE OFFENSE UNDER ARTICLE 92(1)
The statute proscribing violation of a lawful general regulation, Article 92(1), provides:
(1) violates or fails to obey any lawful general
order or regulation;
. . .
shall be punished as a court-martial may direct.
Under the Manual and our decisions, if a regulation does not contain language establishing that it is a punitive regulation, a violation of the regulation is not a criminal offense under Article 92(1). A non-punitive regulation, however, may be considered in the context of establishing a standard of military conduct with respect to the less serious offense of dereliction of duty. Bivins, supra at (12).
II. THE LAW IN THE AIR FORCE AS TO THE PUNITIVE NATURE OF RELEVANT REGULATIONS
A. Air Force Instruction 34-119
In United States v. Hode, 44 MJ 816 (A.F.Ct.Crim.App. 1996), pet. denied, 46 MJ 113 (1996), the accused was convicted of violating the regulation governing underage drinking, paragraph 1.1.2 of Air Force Instruction (AFI) 34-119 (25 July 1994), which provided:
The Government could have appealed this decision to our Court through a certification by the Judge Advocate General under Article 67(a)(2), UCMJ, 10 USC § 867(a)(2). It did not do so.
Six months later, an entirely different panel of the Court of Criminal Appeals, citing Hode, set aside a conviction under Article 92(1) for violating a general regulation in a guilty plea case involving an underage drinking offense under the same regulation. United States v. Bivins, 45 MJ 501 (A.F.Ct.Crim.App. 1996), aff'd, MJ (1998). After disapproving the general regulation offense, the court approved a finding of guilty to the lesser offense of dereliction of duty.
In Bivins, Chief Judge Dixon dissented from the court's opinion with respect to Article 92(1), contending that Hode should be overruled on the ground that the instruction should be viewed as a punitive regulation, violations of which were punishable under Article 92(1). Despite that dissent and our Court's grant of review of Bivins's contention that the dereliction finding should not be approved, the Government once again did not certify the issue of whether the instruction constituted a punitive regulation.
As a result of Hode and Bivins, the state of the law in the Air Force is clear: "AFI 34-119 is not enforceable as a lawful general regulation under Article 92(1), UCMJ." Hode, 44 MJ at 818. Under these circumstances, actions inconsistent with the Air Force Instruction governing underage drinking may be addressed under Article 92 only through proof of a dereliction offense under Article 92(3).
This is not a mere technical distinction. There are substantial differences between the offense of violating a general regulation under Article 92(1) and the offense of dereliction of duty under Article 92(3). The prohibitions in a general regulation, for example, are treated in the same manner as statutory prohibitions, and there is no requirement to allege or prove knowledge of the existence of the regulation by the accused. Para. 16c(1)(d), Part IV, Manual, supra. In a dereliction case, the Government must prove that the accused knew or reasonably should have known of the applicable duty and that actions inconsistent with the duty were either willful, the result of neglect, or the product of culpable inefficiency. Para. 16c(3), Part IV.
Of particular significance are the differences in the consequences. Punishment for violation of a general regulation under Article 92(1) may include a dishonorable discharge and 2 years' confinement. The punishment for a dereliction offense under Article 92(3) is limited to a bad-conduct discharge and 6 months' confinement –- assuming that a willful violation can be proved; if the offense involves neglect or culpable inefficiency, confinement is limited to 3 months, and no punitive discharge is authorized. Para. 16e, Part IV.
B. Air Force Regulation 215-7
Appellant was convicted of violating a general regulation, paragraph 1-4.a of AFR 215-7 (27 September 1991), which was the predecessor of AFI 34-119. The language of AFR 215-7, in all significant respects, tracks the language of its successor, AFI 34-119. The provision which appellant was convicted of violating, paragraph 1-4.a, provided:
Virtually all other relevant provisions of AFR 215-7 are substantially similar to those provisions of the successor regulation, AFI 34-119, which the Court of Criminal Appeals cited as the basis for concluding that the instruction generally provided guidance to commanders rather than a code of conduct for individual servicemembers.
III. THE PROCEEDINGS IN THIS CASE
With respect to the underage drinking charge, appellant pleaded guilty to violating Article 92(1) by disobeying paragraph 1-4.a of AFR 215-7, and the Court of Criminal Appeals affirmed appellant’s conviction. See Art. 66(c), UCMJ, 10 USC § 866(c). In the period of time between the decision below and appellant's petition for review to our Court, the lower court issued its opinion in Hode, holding that the Air Force regulation governing underage drinking was not a punitive general regulation for purposes of Article 92(1).
Appellant, in his subsequent petition to our Court, challenged the providence of his guilty pleas based upon the intervening decision of the lower court in Hode. We remanded the case to the Court of Criminal Appeals to give that court the opportunity to consider appellant's issue. This provided the court below with the option of reconsidering its interpretation of the regulatory language in Hode or determining whether there was a significant difference between the regulation at issue in Hode and the regulation at issue in appellant's case.
On remand, the court below declined to reconsider its analysis of the regulatory language or otherwise distinguish the language in AFI 34-119 from its predecessor.2 The court nonetheless affirmed the trial results on the ground that appellant's guilty plea waived his appellate claim. Citing our decision in United States v. Faircloth, 45 MJ 172 (1996), the court below concluded that our Court had "clearly signaled [our] reluctance to overturn an otherwise provident plea of guilty even where there are arguable legal defenses to the charge," suggesting that the issue in the case involved an evidentiary issue. 47 MJ at 570 (footnote omitted). The court below also sought to avoid application of Hode on the ground that, unlike appellant, Hode had pleaded not guilty and had "disputed the punitive nature of [the regulation] from the outset, at trial, and before us." Confronted with the fact that the court had applied Hode in Bivins -– even though Bivins, like appellant, had pleaded guilty –- the court distinguished Bivins on the grounds that the Government had "conceded error in Bivins, failing to argue the guilty plea distinction." Id. As a result, the court never reached the question of Hode's applicability to appellant's case.3 Id. at 570-71.
As noted in Part II, supra, the state of the law in the Air Force is that the regulatory language governing underage drinking does not establish an offense that is punishable under Article 92(1).
We reject the suggestion by the court below that appellant's plea of guilty waived any objection to the conviction as a result of our decision in Faircloth. In that case, we held that we would not "overturn a military judge's acceptance of a guilty plea based on a 'mere possibility' of a defense." 45 MJ at 174. The present case, however, does not involve an evidentiary issue raising a "mere possibility of a defense." It involves a conviction under a legal standard which, under the state of the law in the Air Force, cannot be used as the basis for a conviction for violation of Article 92(1). The record before us clearly demonstrations that there is a substantial basis in law for determining that appellant pleaded guilty to a charge involving a legal standard that does not constitute an offense under Article 92(1), thereby undermining his conviction "[a]s a matter of law." Faircloth at 174; see United States v. Prater, 32 MJ 433, 436 (CMA 1991).
V. EFFECT ON FINDINGS AND SENTENCE
In Bivins, the court below concluded that the accused’s pleas and providence inquiry, while legally flawed as a violation of Article 92(1), permitted finding the accused guilty of dereliction of duty under Article 92(3) by willfully failing to refrain from drinking alcoholic beverages while under the state’s legal age for doing so. This Court recently affirmed that holding. ___ MJ ___ (1998). The circumstances of appellant's case call for a similar result. As in Bivins, the providence inquiry reflects appellant's full awareness of the elements of dereliction of duty by under-age drinking, his admission that he engaged in such drinking, his knowledge that he was below the legal age for doing so, and his concession that it was his duty not to do so. See Bivins, 45 MJ at 502.
We conclude, however, that appellant suffered no prejudice in his sentence from being convicted of the greater offense under Article 92(1), rather than the closely related offense under Article 92(3). As recited earlier, he was convicted of a rather lengthy list of offenses, some quite serious. In this light, and in view as well of the comparatively lenient sentence adjudged for his misconduct, we are confident that the sentencing authority would have adjudged the same sentence in any event. See United States v. Sales, 22 MJ 305 (CMA 1986); United States v. Suzuki, 20 MJ 248 (CMA 1985).
The decision of the United States Air Force Court of Criminal Appeals as to the finding of guilty to Additional Charge I and its specification is set aside. A finding of guilty is affirmed with respect to the lesser-included offense of willful dereliction of duty by drinking alcoholic beverages while below the minimum age, in violation of Article 92(3).4 The remaining findings of guilty and the sentence are affirmed.
Chief Judge COX and Judges SULLIVAN, CRAWFORD, and GIERKE concur.
1 The other offenses of which appellant was convicted include conspiracy to commit wrongful appropriation, violation of a lawful general regulation by having an under-aged guest in his dormitory, willfully damaging military property, drunk driving, wrongful appropriation, assault with a dangerous weapon, indecent acts with a minor, and larceny of mail matter, in violation of Articles 81, 92, 108, 111, 121, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 892, 908, 911, 921, 928, and 934, respectively.
2 Although we have serious reservations about the court's Article 92(1) analysis of the pertinent paragraph of the regulation in Hode and Bivins, we do not find the court's discussion of the regulation so lacking in merit that we should depart from our traditional approach of giving significant deference to the Courts of Criminal Appeals in the interpretation of the regulations issued by their own departments. United States v. Manuel, 43 MJ 282, 287 (1995); United States v. Moultak, 24 MJ 316, 318 (CMA 1987).
3 As is implied in the first granted issue, the Court of Criminal Appeals suggested that, absent good cause shown or unless a manifest injustice would be threatened, an appellant's failure to raise an issue before that court on initial review would waive consideration of the issue during any further consideration of the case before that court. However, an order from this Court that remands a case for consideration by the lower court is not permissive. Accordingly, whatever validity, if any, the lower court's approach to appellate waiver might have in other contexts, it cannot apply to a remand order from this Court, just as we cannot disregard a remand order from the Supreme Court. See generally United States v. Hall, 45 MJ 255, 257 (1996); United States v. Johnson, 42 MJ 443 (1995).
4 The specification of Additional Charge I is amended to read as follows: In that [appellant], who knew of his duties at Robbins Air Force Base, Georgia, on or about 6 October 1994, was derelict in the performance of those duties in that he willfully consumed alcoholic beverages while below the minimum age.