MISCELLANEOUS MATTERS: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

2015 (September Term)

United States v. Sterling, 75 M.J. 407 (at least two general orders prescribe the manner in which religious accommodations to rules of general applicability of the Religious Freedom Restoration Act (RFRA), 42 USC 2000bb-1 (2012) (as amended), should be processed and facilitated in the military: Dep’t of Defense Instr. 1300.17, Accommodation of Religious Practices Within the Military Services (Feb. 10, 2009, Incorporating Change 1, Jan. 22, 2014), and Dep’t of the Navy, Secretary of the Navy Instr. 1730.8B CH-1, Accommodation of Religious Practices (Mar. 28, 2012)). 

2014 (September Term)

United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid). 

(a naval instruction that requires self-reporting of arrests by civilian authorities, and prohibits commanders from taking disciplinary action regarding the underlying offense for which the servicemember was arrested, unless that disciplinary action is based on independent evidence, does not conflict with superior regulatory authority and appellant in this case has failed to show that it facially compels self-incrimination in violation of the Fifth Amendment to the Constitution; the factual report of an arrest, accompanied by the safeguards against further questioning or prosecution contained in the service instruction, does not present a real and appreciable hazard of self-incrimination; the mere fact of an arrest is a matter of public record and the reporting requirement prohibits commanders from imposing disciplinary action on the basis of the underlying arrested offense, unless such disciplinary action is based solely on evidence derived independently of the self-report; furthermore, the instruction serves a regulatory or administrative purpose where disclosure is required to monitor and maintain the personnel readiness, welfare, safety, and deployability of the force, and it does not target any highly selective group inherently suspect of criminal activities, but rather applies to all members of the Navy). 

(in determining whether the intent in the drafting a regulation was essentially regulatory or punitive, seven factors are instructive:  (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it operates only upon a finding of scienter; (4) whether it will serve the traditional aims of punishment, i.e., retribution and deterrence; (5) whether it applies to behavior that is already a crime; (6) whether it serves an alternative (i.e., noncriminal) purpose; and (7) whether it is excessive in relation to that purpose; the core inquiry is not a formulaic application of multifactor tests, but rather consideration of whether the challenged provision is grounded in a valid regulatory, as opposed to punitive, governmental purpose). 

2011 (September Term)

United States v. Kreutzer, 70 M.J. 444 (regulations cannot change the statute). 

2010 (Setember Term)

United States v. Watson, 69 M.J. 415 (a discharge regulation should not be infused with a degree of clarity that was not available to the commander exercising discharge authority at the time of appellant’s discharge). 


(in the present case, where appellant received notice of an administrative discharge prior to the execution of her adjudged dismissal and no fraud was involved in its issuance, by regulation, appellant’s discharge could only be revoked if it was not published by a headquarters authorized to approve the discharge and to issue a discharge certificate; because appellant’s commander was provided the express authority by regulation to serve as a discharge authority in the case of individuals subject to adjudged dismissals, appellant’s discharge was in fact published by a headquarters authorized to issue it, and it could not be revoked merely on the basis of a claimed deficiency in the commander’s exercise of her discretion; as such, appellant’s post-trial administrative discharge remitted the unexecuted dismissal; although the discharge regulation provided guidance as to how the discharge authority should exercise discretion in issuing a discharge certificate, the manner in which the discharge authority exercised this discretion did not remove that person from occupying the status of a discharge authority; accordingly, any mistake in the exercise of discretion by a discharge authority did not fall within circumstances under which revocation was authorized by regulation). 


(military departments have ample authority to designate by regulation who may or may not exercise discharge authority; likewise, military departments have the authority to issue regulations that have the effect of precluding an administrative discharge from taking effect; the decision as to whether an administrative discharge regulation should include a provision that both grants and withholds the power of a particular discharge authority over a specified class of cases rests with the military departments). 

2009 (September Term)

United States v. Estrada, 69 M.J. 45 (an Army regulation stating that after the preferral of a charge, an administrative discharge certificate was “void until” the charge was dismissed or the convening authority took initial action on the case did not mean that an administrative discharge promulgated after sentencing automatically remitted a convening authority’s subsequent approval of a punitive discharge; instead, the convening authority’s subsequent approval of a punitive discharge superseded the previous, erroneously issued, administrative discharge). 

United States v. Serianne, 69 M.J. 8 (the self-reporting requirement imposed on sailors by a Chief of Naval Operations instruction to notify their commanding officer of an arrest by civil authorities for an alcohol-related offense did not provide those sailors with the rights afforded by a superior competent authority in a self-reporting exclusion in Article 1137 of the US Navy Regulations, an exclusion that eliminates the reporting requirement in instances where a person is already criminally involved in offenses he would otherwise be required to report; as such, the instruction did not provide a legal basis for finding the accused derelict in the performance of a required duty when he failed to report an arrest for driving under the influence of alcohol, and the military judge did not err in dismissing the charge). 

United States v. Williams, 68 M.J. 252 (it is well-settled that a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests). 



United States v. Lundy, 60 MJ 52  (the parties to the pretrial agreement, counsel at trial, and the military judge all appear to have overlooked the Army regulation (AR 600-8-19) that precludes a convening authority from suspending a mandatory reduction in pay grade unless the convening authority also suspends any related confinement or punitive discharge; because this regulatory impediment resulted from a departmental action rather than a statutory mandate, the Army was free to modify the regulation, create an exception, or grant a waiver; had the parties taken the impediment into account during negotiation of the pretrial agreement, the convening authority could have sought a waiver or exception at the departmental level or an alternative agreement could have been proposed). 



United States v. Yarbrough, 55 MJ 353 (where appellant’s challenge called for a legal construction of an Air Force Instruction, Court of Appeals for the Armed Forces adopted the Court of Criminal Appeals’ "reasonable" construction of the instruction, citing to cases indicating that the Court of Appeals for the Armed Forces will defer to a service court’s construction of its own regulations).

(it is generally understood that the more specific provisions of a regulation prevail over the more general).

(where Air Force Court of Criminal Appeals determined that Air Force Instruction did not prohibit use of appellant’s substance abuse information where appellant did not "self-identify", Court of Appeals for the Armed Forces adopted this determination as reasonable and held that appellant failed to sustain his burden of showing error so as to justify application of plain error doctrine).


United States v. Allen, 53 MJ 402 (28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants do not confer a protection upon the individual accused which is enforceable by virtue of the exclusionary rule; nor is the failure to coordinate with the United States Attorney unreasonable conduct by law enforcement which would serve to violate any of the accused’s Fourth Amendment protections).

(where the findings of the military judge showed that OSI officers did not seek the search warrant in issue, 28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants did not apply - a civilian law enforcement officer sought the warrant from a civilian judge).

United States v. Ayers, 54 MJ 85 (a general court-martial convening authority is authorized to publish general orders and regulations; it is not necessary for the commander issuing the general regulation to sign it personally; so long as the decisional authority, which is discretionary in nature, remains with the commander, the signature authority, which is delegated, is wholly ministerial in nature).

(a general regulation is a proper subject of judicial notice).

(a general regulation is entitled to a presumption of regularity if it appears regular on its face).

(claim that a general regulation is not authentic or is not what it purports to be, is an evidentiary objection, based on lack of proper authentication, and is waived if not timely made).

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