                        UNITED STATES, Appellee

                                    v.

                  Jesse I. RANNEY, Technical Sergeant
                       U.S. Air Force, Appellant

                              No. 08-0596
                         Crim. App. No. S31046

       United States Court of Appeals for the Armed Forces

                       Argued February 10, 2009

                        Decided April 14, 2009

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. STUCKY, J. filed a separate
opinion, dissenting in part, in which BAKER, J., joined.


                                 Counsel


For Appellant: Captain Tiffany M. Wagner (argued); Major
Shannon A. Bennett (on brief).


For Appellee: Captain Naomi N. Porterfield (argued); Colonel
Gerald R. Bruce and Major Jeremy S. Weber (on brief); Major
Matthew S. Ward.


Military Judge:    Steven A. Hatfield



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ranney, No. 08-0596/AF


     Judge RYAN delivered the opinion of the Court.

     On the morning of April 22, 2005, Appellant was involved in

a car accident while driving U.S. Marine Corps (Marine Corps)

Lance Corporal (LCpl) M from his off-base home to Kadena Air

Base on Okinawa Island, Japan.   The accident was especially

unfortunate for Appellant because it brought to light the fact

that he was simultaneously disobeying two orders:   (1) an order

under the signature of Lieutenant Colonel (Lt. Col.) D, the Base

Traffic Review Officer, revoking Appellant’s driving privileges;

and (2) an order from Marine Corps Gunnery Sergeant (GySgt) F,

Detachment Chief at Armed Forces Network (AFN) Okinawa,

requiring Appellant to cease his “unprofessional relationship”

with LCpl M.

     Contrary to Appellant’s pleas, members sitting as a special

court-martial found Appellant guilty of willfully disobeying a

lawful order of a superior commissioned officer and of willfully

disobeying the lawful order of a noncommissioned officer, in

violation of Articles 90 and 91, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 890, 891 (2000).   The panel

sentenced Appellant to reduction to the enlisted grade of E-3,

forfeiture of $400 per month for three months, confinement for

ninety days, a bad-conduct discharge, and a reprimand.    The

convening authority approved the sentence as adjudged and the

United States Air Force Court of Criminal Appeals (CCA) affirmed


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United States v. Ranney, No. 08-0596/AF


the findings and sentence.       United States v. Ranney, No. ACM

S31046, 2008 CCA LEXIS 138, at *14-*15, 2008 WL 901504, at *5

(A.F. Ct. Crim. App. Mar. 31, 2008).

       We granted Appellant’s petition to determine whether the

evidence was legally sufficient to support the finding of guilt

for violating Article 90, UCMJ, and whether GySgt F’s order was

a lawful order as required by Article 91, UCMJ.1       For the reasons

given below, we affirm the decision of the CCA, except with

respect to the finding of guilty to Charge I, willfully

disobeying a superior commissioned officer.      As to that offense,

we affirm a finding of guilt to the lesser included offense of

failure to obey an order, in violation of Article 92, UCMJ, 10

U.S.C. § 892 (2000).

                  I.   Violation of Article 90, UCMJ

                            A.    Background

       In September 2004, the Okinawa Security Forces issued

Appellant an order revoking his driving privileges after


1
    The Court granted review of the following two issues:

       I. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO
       SUPPORT THE FINDING OF GUILTY FOR DISOBEYING A LAWFUL
       COMMAND WHERE THERE WAS NO EVIDENCE THAT THE COMMAND
       WAS DIRECTED PERSONALLY TO APPELLANT OR THAT APPELLANT
       KNEW IT WAS FROM A SUPERIOR COMMISSIONED OFFICER.

       II. WHETHER THE ORDER IN THE SPECIFICATION OF CHARGE
       II WAS A LAWFUL ORDER WHEN THE EVIDENCE INDICATED THE
       ORDER’S PURPOSE WAS TO ACCOMPLISH SOME PRIVATE END.


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United States v. Ranney, No. 08-0596/AF


Appellant was detained for drunk-driving.      The order was a form

letter under the signature of Lt. Col. D, who testified at trial

that the Security Forces issued such orders automatically

without his personal involvement.      Lt. Col. D reviewed orders

revoking driving privileges only if they were appealed by the

military member receiving the order.

     Appellant later submitted such an appeal in the form of a

request seeking reinstatement of limited driving privileges.

After reviewing the original drunk-driving offense and receiving

recommendations from the Security Forces and the base judge

advocate, Lt. Col. D personally issued a memorandum denying

Appellant’s request.   Although Appellant signed the memorandum

acknowledging that his driving privileges remained revoked, he

chose to operate a vehicle and was subsequently involved in car

accident.   For driving a vehicle after having his driving

privileges revoked, a special court-martial convicted Appellant

of one specification of willfully disobeying a superior

commissioned officer in violation of Article 90, UCMJ.

                          B.   Discussion

     “The test for legal sufficiency requires appellate courts

to review the evidence in the light most favorable to the

Government.   If any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt, the

evidence is legally sufficient.”       United States v. Brooks, 60


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United States v. Ranney, No. 08-0596/AF


M.J. 495, 497 (C.A.A.F. 2005) (citing United States v. Byers, 40

M.J. 321, 323 (C.M.A. 1994); United States v. Turner, 25 M.J.

324, 324 (C.M.A. 1987)).

     The elements of the offense of willfully disobeying a

superior commissioned officer are:

     (a) That the accused received a lawful command from a
     certain commissioned officer;
     (b) That this officer was the superior commissioned
     officer of the accused;
     (c) That the accused then knew that this officer was
     the accused’s superior commissioned officer; and
     (d) That the accused willfully disobeyed the lawful
     command.

Manual for Courts-Martial, United States pt. IV, para. 14.b(2)

(2005 ed.) (MCM).   The MCM further explains that “[t]he order

must be directed specifically to the subordinate.   Violations of

regulations, standing orders or directives, or failure to

perform previously established duties are not punishable under

this article, but may violate Article 92.”2   MCM pt. IV, para.

14.c(2)(b).

     In Byers, this Court considered a similar case in which the

appellant received an order in the form of a routine

administrative sanction for a traffic offense.   40 M.J. at 323.

That order was issued by a staff officer in the name of a

lieutenant general, but no evidence established that the

2
  “Although MCM explanations of offenses are not binding on this
Court, they are generally treated as persuasive authority, to be
evaluated in light of this Court’s precedent.” United States v.
Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (citations omitted).

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United States v. Ranney, No. 08-0596/AF


lieutenant general “did anything to lift his routine order

‘above the common ruck,’” or that he personally issued the

order.   Id. (quoting United States v. Loos, 4 C.M.A. 478, 480,

16 C.M.R. 52, 54 (1954)).   The Byers Court ruled that the

evidence, “even when viewed in the light most favorable to the

prosecution, fails to establish a direct and personal order from

[the lieutenant general] which, when disobeyed, was a ‘personal

affront to his dignity.’”   Id. at 323-24 (quoting United States

v. Keith, 3 C.M.A. 579, 583, 13 C.M.R. 135, 139 (1953)).

     In this case the Government charged Appellant with

willfully disobeying “a lawful command from [Lt. Col. D], . . .

to not drive for one year, or words to that effect.”   Charge

Sheet, United States v. Ranney, No. 08-0596 (Aug. 31, 2005)

[hereinafter Charge Sheet].   Two letters were issued to

Appellant under Lt. Col. D’s signature regarding Appellant’s

driving privileges:   the original September 2004 order revoking

privileges for one year and the April 13, 2005, memorandum

responding to Appellant’s written request for limited driving

privileges.   That memorandum states:   “On 4 September 2004, you

were found to be operating a motor vehicle while under the

influence of alcohol.   In accordance with 18 WGI 31-204, para

2.10, Motor Vehicle Traffic Supervision, and supplements

thereto, your driving privileges on Okinawa and all Air Force

related properties are hereby limited.”   Memorandum from Lt.


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United States v. Ranney, No. 08-0596/AF


Col. D, Deputy Commander, 18th Mission Support Group, to TSgt

Ranney at 1 (Apr. 13, 2005).   The memorandum clarified that

there were no exceptions to the limitation and that no driving

privileges were being reinstated.     Id.

     Under Byers, Appellant’s failure to obey the original

September 2004 order does not qualify as a violation of Article

90, UCMJ.    The Security Forces issued the order under the

signature, and with the authority, of Lt. Col. D, but without

his personal involvement or knowledge.      It was not a direct and

personal order, and nothing lifted the routine action –- the

result of an administrative process automatically triggered by

Appellant’s drunk-driving conviction, and executed by form

letter -- “above the common ruck.”    Appellant’s disobedience of

that order was thus legally insufficient to sustain a conviction

under Article 90, UCMJ.   Byers, 40 M.J. at 323-24.

     Nor does the April 13, 2005, memorandum change the legal

landscape.   While that memorandum has none of the Byers problems

that afflict the September 2004 order -- Lt. Col. D personally

reviewed Appellant’s case and issued the memorandum specifically

to Appellant -- it does not contain the lawful command Appellant

was charged with willfully disobeying.      See Charge Sheet

(charging Appellant with disobeying an order “to not drive for

one year, or words to that effect”).    The April 2005 memo, even

when viewed in the light most favorable to the Government as an


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United States v. Ranney, No. 08-0596/AF


order not to drive,3 restricted Appellant’s privileges only from

April 13 until September 4 -- a period of less than five months.

It was neither an order “to not drive for one year,” nor “words

to that effect.”

     Finally, we reject the dissent’s suggestion that Lt. Col.

D’s April 13, 2005, memorandum “ratified” the original September

2004 order and thereby transformed it into the lawful command of

a superior officer for the purposes of Article 90, UCMJ.    United

States v. Ranney, __ M.J. __ (2-3) (C.A.A.F. 2009) (Stucky, J.,

dissenting in part).   Although Lt. Col. D personally reviewed

Appellant’s case and issued a memorandum continuing the

suspension of Appellant’s driving privileges, that action

neither cured the lack of personal involvement afflicting the

September 2004 order nor overcame the limitations this Court set

forth in Byers.    Lt. Col. D’s actions seven months after the

September 2004 order cannot be retroactively bootstrapped to

elevate what was otherwise a routine administrative sanction

“above the common ruck.”   We disagree that the contract

principle of ratification can be used to transform an automatic

and routine driving restriction into the lawful command of a

superior commissioned officer, after the fact, in order to

create additional criminal liability.

3
  And it can just as easily be construed as nothing more than a
memorandum reflecting a decision not to rescind the order not to
drive.

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United States v. Ranney, No. 08-0596/AF


                           C.   Conclusion

     We hold that the evidence was legally insufficient to

support a finding of guilty of willfully disobeying a superior

commissioned officer and set aside the finding of guilt to

Charge I.   The evidence does, however, support all of the

elements of the lesser included offense of failure to obey a

lawful order.   See MCM pt. IV, para. 14.d(3)(a) (listing Article

92, UCMJ, as a lesser included offense); Article 92, UCMJ (“Any

person subject to this chapter who . . . having knowledge of any

other lawful order issued by a member of the armed forces, which

it is his duty to obey, fails to obey the order . . . shall be

punished as a court-martial may direct.”); Byers, 40 M.J. at 324

(affirming the lesser included offense of failure to obey a

lawful order where the evidence was legally insufficient to

support a violation of Article 90, UCMJ).

                II.   Violation of Article 91, UCMJ

                           A.   Background

     At the time of the conduct underlying Charge II, Appellant

was an Air Force Technical Sergeant (E-6) assigned to AFN

Okinawa, an office manned by members of both the Marine Corps

and the Air Force.    Appellant was supervised by the Detachment

Chief, Marine Corps GySgt F (E-7).    GySgt F testified that

Appellant was maintaining an “unprofessional relationship” with

LCpl M (E-3), a female Marine who worked in a different section


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United States v. Ranney, No. 08-0596/AF

of AFN from Appellant and who was neither supervised by nor

within the chain of command of Appellant.

     After learning of the relationship between Appellant and

LCpl M, GySgt F issued a written order to Appellant.   The order

stated:

     Since you are a Technical Sergeant, and a leading NCO
     in the detachment, in accordance with AFI 36-2909, I
     consider this an unprofessional relationship. To
     ensure the good order and discipline of this unit, you
     are herby ordered:

     Cease the offensive portion of the relationship with
     [LCpl M]. “Offensive,” as outlined in AFI 36-2909,
     includes shared living accommodations, vacations,
     transportation, or off-duty interests on a frequent or
     recurring basis in the absence of any purpose or
     organizational benefit. Your relationship with LCpl
     [M] will be on a strictly profesional [sic] level.

Memorandum from GySgt F, Detachment Chief, to TSgt Ranney at 1

(Mar. 9, 2005) [hereinafter March 9 Order].   GySgt F gave the

written order directly to Appellant, who signed the memorandum,

indicating his receipt and understanding of the order and the

procedures for appealing it.

     Despite the order, Appellant continued his relationship

with LCpl M.   LCpl M testified that on the evening of April 21,

2005, she met Appellant at the enlisted club.   They danced,

played pool, and hung out together until shortly before

midnight, at which time they left the club and retired to

Appellant’s off-base housing.   The next morning, while driving

LCpl M back to Kadena Air Base for physical training, Appellant


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United States v. Ranney, No. 08-0596/AF

was involved in a car accident.

     For willfully disobeying GySgt F’s order, a special court-

martial convicted Appellant of one specification of willfully

disobeying a superior noncommissioned officer in violation of

Article 91, UCMJ.

                          B.   Discussion

     Article 91, UCMJ, like Article 90, UCMJ, makes punishable

disobedience only of lawful commands.    Article 91, UCMJ (“Any

. . . enlisted member who . . . willfully disobeys the lawful

order of a warrant officer, noncommissioned officer, or petty

officer . . . shall be punished as a court-martial may

direct.”); see MCM pt. IV., para. 15.c(4) (incorporating the

lawfulness requirement from Article 90, UCMJ, to Article 91,

UCMJ).   This Court considers the legality of an order de novo.

United States v. Mack, 65 M.J. 108, 112 (C.A.A.F. 2007); United

States v. Deisher, 61 M.J. 313, 317 (C.A.A.F. 2005).      “An order

is presumed to be lawful, and the accused bears the burden of

rebutting the presumption.”    Deisher, 61 M.J. at 317.

Nevertheless, an order purporting to regulate personal affairs

is not lawful unless it has a military purpose.     United States

v. Padgett, 48 M.J. 273, 276 (C.A.A.F. 1998); see Deisher, 61

M.J. at 317 (“The essential attributes of a lawful order include

. . . [the] relationship of the mandate to a military duty.”)

(citing MCM pt. IV, para. 14.c(2)(a)).      In this case, Appellant


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United States v. Ranney, No. 08-0596/AF

challenges whether GySgt F’s order had any relationship to

military duty.

      Appellant asserts that GySgt F issued the order to

accomplish some private end and that the order had “nothing to

do with a military duty.”   Brief in Support of Petition Granted

at 11-13, United States v. Ranney, No. 08-0596 (C.A.A.F. Dec. 8,

2008) [hereinafter Brief in Support of Petition Granted].    If

true, this would rebut the presumption that the order was

lawful.   See Padgett, 48 M.J. at 276-77 (holding that an order

regulating personal affairs must have a military purpose to be

lawful); MCM pt. IV, para. 14.c(2)(a)(iii) (stating that the

requirement of a relationship to military duty precludes

punishment for “[d]isobedience of an order which has for its

sole object the attainment of some private end”).    Appellant

does not, however, indicate what private end GySgt F sought to

accomplish by issuing the order.     Moreover, Appellant admits

both that GySgt F “wanted to ensure that the NCO’s enforced the

regulations on younger marines who were faced with more

restrictions,” and that GySgt F’s “concerns about good order and

discipline within the enlisted force are certainly appropriate

in the abstract.”   Brief in Support of Petition Granted at 12,

14.   Appellant argues that the lack of specific evidence in the

record of trial demonstrating that Appellant’s relationship with

LCpl M had a negative impact on the good order and discipline of


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United States v. Ranney, No. 08-0596/AF

the AFN detachment rebuts the presumption that GySgt F’s order

was legal.    Id. at 14.   We disagree.

      GySgt F’s order to Appellant explicitly stated that it was

issued “[t]o ensure the good order and discipline” of the AFN

detachment.   March 9 Order.   In the context of a multi-service

unit, GySgt F considered the personal relationship between

Appellant and LCpl M to be an “unprofessional relationship.”

Id.   GySgt F testified that he believed that Appellant’s (a

noncommissioned officer) and LCpl M’s relationship would

compromise the detachment’s noncommissioned officers’ ability to

enforce the various restrictions placed on junior Marine

enlisted members.   GySgt F also testified that although the

relationship had not yet caused any specific problems within the

unit, he believed that it had the potential to become a problem

over time.

      We agree with the Court of Criminal Appeals that there was

a legally sufficient nexus between GySgt F’s order and a

military duty, namely maintaining the discipline and morale of

the AFN detachment.   See United States v. Moore, 58 M.J. 466,

468 (C.A.A.F. 2003) (stating that military duty includes “‘all

activities reasonably necessary to accomplish a military

mission, or safeguard or promote the morale, discipline, and

usefulness of members of a command and directly connected with

the maintenance of good order in the service’”) (quoting MCM pt.


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United States v. Ranney, No. 08-0596/AF

IV, para. 14.c.(2)(a)(iii)).     GySgt F’s order explicitly

referenced AFI 36-2909, an instruction addressing the impact of

personal relationships as “matters of official concern,” and

specifically stated that the purpose of the order was “[t]o

ensure the good order and discipline of this unit.”     In the

absence of any evidence that the order was in fact issued for a

private end, and with a sufficient nexus between the mandate and

a stated military duty –- good order and discipline -- extant in

the record, the presumption that the order was lawful remains

intact.

                          C.   Conclusion

     We conclude that Court of Criminal Appeals correctly upheld

Appellant’s conviction for a violation of Article 91, UCMJ.

                          III.    Decision

     The decision of the United States Air Force Court of

Criminal Appeals is reversed with respect to Charge I (willfully

disobeying a superior commissioned officer) and with respect to

the sentence.   The finding of guilty to that offense is set

aside and that allegation is dismissed.      We affirm a finding of

guilty to the lesser included offense of failure to obey an

order, in violation of Article 92, UCMJ, 10 U.S.C. § 892 (2000).

The portion of the lower court’s decision affirming a conviction

for violation of Article 91, UCMJ, 10 U.S.C. § 891 (2000), is

affirmed.   The record is returned to the Judge Advocate General


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United States v. Ranney, No. 08-0596/AF

of the Air Force for remand to the Court of Criminal Appeals for

reassessment of the sentence based on Appellant’s convictions

for violations of Articles 91 and 92, UCMJ, or to order a

rehearing on sentence.




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United States v. Ranney, No. 08-0596/AF


     STUCKY, Judge, with whom BAKER, Judge, joins (dissenting

in part):

     I respectfully dissent from that part of the majority’s

decision that holds the evidence was not legally sufficient to

affirm Appellant’s conviction for disobeying the lawful command

of his superior commissioned officer.   Article 90, UCMJ, 10

U.S.C. § 890 (2000).

     In September 2004, after Appellant was detained for driving

while under the influence of alcohol, and, following a base

instruction, Security Forces issued him an order restricting his

driving privileges.    As noted by the majority, the order was a

form letter with the preprinted signature of Lieutenant Colonel

(Lt Col) Dennis P. Delaney, the base traffic reviewing officer

(BTRO), issued to Appellant without the direct knowledge or

specific approval of Lt Col Delaney.    The majority correctly

holds that, as the officer did not personally direct the order

to Appellant, the September 2004 order standing alone cannot be

the basis of a conviction for disobeying a superior commissioned

officer.    United States v. Byers, 40 M.J. 321, 323 (C.M.A.

1994).

     But the majority goes further and holds that the April 13,

2005, memorandum, in which Lt Col Delaney personally denied

reinstatement of Appellant’s driving privileges, does not

“change the legal landscape.”   I disagree.   In the April 13,
United States v. Ranney, No. 08-0596/AF


2005, memorandum, which was in response to Appellant’s request

for reinstatement of limited driving privileges, Lt Col Delaney

specifically referenced the September 4, 2004, incident of

driving under the influence of alcohol and personally refused to

reinstate those driving privileges.    By doing so, he ratified

the original September 2004 order restricting Appellant’s

driving privileges for one year.

     Ratification is the “[c]onfirmation and acceptance of a

previous act, thereby making the act valid from the moment it

was done.”   Black’s Law Dictionary 1289 (8th ed. 2004).

Ratification is a concept that is not foreign to military law or

to this Court.   See, e.g., United States v. Thompson, 46 M.J.

472, 475 (C.A.A.F. 1997) (concluding that “the convening

authority’s determination that the two periods of delay were

excludable from the Government’s accountability for speedy-trial

purposes amounted to a ratification of the investigating

officer’s grant of the defense-delay requests, rather than an

after-the-fact rationalization”); United States v. Brown, 39

M.J. 114, 118 (C.M.A. 1994) (accepting “that any error in the

referral of appellant’s case to court-martial by Captain Holly

was cured by the actual commander’s ratification” of the

referral by approving the sentence); United States v. Scott, 11

C.M.A. 655, 657, 29 C.M.R. 471, 473 (1960) (noting that parents




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United States v. Ranney, No. 08-0596/AF


who took no action to notify Army officials that their son had

enlisted as a minor without their permission ratified his

enlistment).

     By endorsing the April 13 memorandum, Appellant

acknowledged receipt and understanding that Lt Col Delaney had

personally sustained the one-year restriction on Appellant’s

driving privileges.   Yet less than two weeks later, and still

well within the one-year term of the restriction, Appellant

chose to drive a motor vehicle and was involved in an accident.

Lt Col Delaney’s April 13 memorandum lifted the September 4,

2004, order “‘above the common ruck.’”    Byers, 40 M.J. at 323

(quoting United States v. Loos, 4 C.M.A. 478, 480, 16 C.M.R. 52,

54 (1954)).    Therefore, I would affirm Appellant’s conviction

for disobeying the order of a superior commissioned officer

under Article 90, UCMJ.




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