UNITED STATES, Appellee
Andre T. HARGROVE, Specialist
U. S. Army, Appellant
Crim. App. No. 9601783
THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Submitted May 19, 1999
Decided September 3, 1999
For Appellant: Colonel John T Phelps II, Lieutenant Colonel Adele H. Odegard, Major Leslie A. Nepper, and Captain Paul J. Perrone, Jr. (on brief).
For Appellee: Colonel Joseph E. Ross, Lieutenant Colonel Frederic L. Borch, III, Major Lyle D. Jentzer, and Captain Troy A. Smith (on brief).
Military Judge: Robert F. Holland
THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
On mixed pleas, appellant was convicted by a general court-martial of multiple offenses, including conspiracy to commit larceny, larceny of military property, wrongful disposition of military property, housebreaking, making a false official statement, offering a bribe, willfully disobeying the command of a commissioned officer, and failing to obey other lawful orders, in violation of Articles 81, 121, 108, 130, 107, 134, 90, and 92 of the Uniform Code of Military Justice, 10 USC §§ 881, 921, 908, 930, 907, 934, 890, and 892, respectively. The court-martial sentenced appellant to be confined for 2 years, to forfeit all pay and allowances, to be reduced to the lowest enlisted pay grade, and to be discharged from the Army with a bad-conduct discharge. The convening authority approved the sentence.
The Court of Criminal Appeals affirmed (1) only so much of the findings of guilty of willfully disobeying the command of a commissioned officer as found that "appellant did on 22, 23, and 25 June 1996, respectively, fail to obey an order in violation of Article 92, UCMJ," and (2) the "remaining findings of guilty." On reassessment of the sentence in light of this action, the court affirmed the sentence.
We granted appellant’s petition to consider whether he was properly convicted of failing to obey a lawful order.1/ Having evaluated the evidence adduced at trial, we agree with appellant that, as to the contested specifications, he may have been guilty of no offense greater than failure to go to his appointed place of duty.
The specifications appellant challenges alleged that appellant,
Military law has long held that minor offenses may not be escalated in severity by charging them as violations of orders or the willful disobedience of superiors. See United States v. Loos, 4 USCMA 478, 16 CMR 52 (1954).2/ The President has continued this principle in the present Manual for Courts-Martial, United States (1998 ed.). See para. 16e(2)(Note), Part IV. Among such offenses is the failure to report at a specified time and place. See United States v. Peaches, 25 MJ 364, 366 (CMA 1987).
It appears that after informing appellant he was being restricted, Captain D.G. did not set forth the details of the restriction, but left them to his subordinates. This, by itself, raises the question of whether Captain D.G. placed the full weight of his office behind the requirement to sign in periodically. Compare United States v. Pettersen, 17 MJ 69 (CMA 1983), with United States v. Loos, supra. Moreover, when testifying about appellant’s failure to comply with the "order," the acting first sergeant, Sergeant First Class R.M., and the battalion commander, Lieutenant Colonel M.V., both referred to appellant’s misconduct as "breaking restriction." While their characterization of the offense is not dispositive of this issue, it does demonstrate the command’s perception of appellant’s actions.
On this record, with respect to the challenged specifications, we conclude that appellant may have been guilty only of failing to go to his appointed place of duty. Thus, the military judge should have provided instructions on this lesser-included offense during findings. However, in view of the remaining, more serious, offenses of which appellant was convicted, we are "highly confident" that this error "played no appreciable role in the adjudication of [appellant’s] punishment." See United States v. Fox, 10 MJ 176, 177 (CMA 1981), quoting United States v. Thompson, 22 USCMA 88, 91, 46 CMR 88, 91 (1972).
The decision of the United States Army Court of Criminal Appeals is reversed as to the findings of guilty to specifications 4 through 8 of Additional Charge I. Findings of guilty are affirmed with respect to the lesser-included offense of failing to go to appellant’s appointed place of duty in violation of Article 86(1), UCMJ, 10 USC § 886(1). In all other respects, the decision of the United States Army Court of Criminal Appeals is affirmed.
1/ The granted issue asks:
2/ Practitioners of military justice colloquially referred to such charges as "footnote 5" offenses, from the footnote to the Table of Maximum Punishments in the 1951 and 1969 Manuals for Courts-Martial, United States, that limited the punishment to actual offenses committed by the accused, not the greater punishment prescribed for the more serious offenses against authority set forth in Articles 90, 91, and 92, Uniform Code of Military Justice, 10 USC §§ 890, 891, and 892, respectively. This was also known as the "ultimate offense" test.
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