United States v. Green
2003 CCA LEXIS 137, 58 M.J. 855, 2003 WL 21350094 (2003)
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Rule of Law:
A military directive that provides general policy guidance and requires further implementation by subordinate commanders is not a punitive general order enforceable under Article 92(1), UCMJ. However, a violation of such a non-punitive regulation can establish a standard of conduct to support a conviction for the lesser, closely-related offense of dereliction of duty under Article 92(3), UCMJ.
Facts:
- At the time of the offenses, Appellant was a third-year cadet at the United States Military Academy, ranked first in his class, and serving as a cadet company first sergeant.
- As a cadet leader, Appellant was responsible for enforcing discipline, accountability, and acting as a role model.
- Appellant purchased ketamine in a New York City dance club and gamma butyrolactone (GBL) using the Internet.
- On one occasion, Appellant inhaled ketamine twice in the same day while driving to and from a tanning salon.
- On that same day, Appellant's roommate found a 'bullet'—a device for snorting drugs—on his own bed and gave it to his chain of command.
- A subsequent search of Appellant's room revealed liquid ketamine, two bottles of GBL, and one gram of cocaine in his wall locker.
- While his room was being searched, Appellant telephoned another cadet and warned him to 'dump your stuff' because 'I’m busted.'
Procedural Posture:
- Appellant was charged with multiple offenses, including failure to obey a lawful general order, in violation of Articles 92 and 112a, UCMJ.
- Appellant pleaded guilty to all charges before a military judge sitting as a general court-martial (the trial court).
- The military judge accepted the guilty pleas and convicted Appellant.
- The convening authority (a high-level commander) approved the adjudged sentence of a dismissal from service.
- The case was then automatically forwarded to the U.S. Army Court of Criminal Appeals (an intermediate appellate court) for mandatory review.
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Issue:
Is Department of Defense Directive 1010.4 a punitive general order, the violation of which can be criminally prosecuted as a failure to obey a lawful general order under Article 92(1) of the Uniform Code of Military Justice?
Opinions:
Majority - Schenck, Judge
No. Department of Defense Directive 1010.4 is a non-punitive general policy directive, not a punitive general order that can be criminally enforced under Article 92(1), UCMJ. The court applied a two-part test to determine if a regulation is punitive. First, the court examined the directive as a whole and found its stated purpose is to update DoD 'policies' and provide general guidance, not to directly regulate the conduct of individual servicemembers. Second, the court determined that the direct application of sanctions is not self-evident; in fact, the directive explicitly states it is 'not intended to modify or otherwise affect' criminal responsibilities and expressly delegates implementation to subordinate commanders. Because the directive is not punitive, Appellant's guilty plea to violating it under Article 92(1) was improvident. However, the court found that Appellant's admissions during his plea inquiry established all the elements of the closely-related, lesser offense of dereliction of duty under Article 92(3). He knew of his duty to refrain from possessing drug paraphernalia (a standard set by the non-punitive directive), and he willfully failed in that duty.
Analysis:
This decision reinforces the critical distinction between punitive orders and non-punitive policy guidance in military law. It clarifies for military prosecutors that a charge for violating a general order under Article 92(1) requires that the order itself be intended as a direct, individually-applicable criminal proscription, rather than a broad policy statement. The case also demonstrates the appellate court's authority to salvage an improvident guilty plea by affirming a conviction for a closely-related, lesser offense if the defendant's own admissions on the record are sufficient to establish guilt for that offense. This prevents a defendant from escaping all criminal liability due to a prosecutor's legally flawed charging decision while still protecting the defendant from being convicted of a crime that does not legally exist.
