

   
   
   
   U.S. v. Hargrove



In the case of
UNITED STATES, Appellee
v.
Andre T. HARGROVE, Specialist
U. S. Army, Appellant
 
No. 99-0346
Crim. App. No. 9601783
 
THE UNITED STATES COURT OF APPEALS FOR THE
ARMED FORCES
Submitted May 19, 1999
Decided September 3, 1999
 
Counsel
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.
 
PER CURIAM
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,



having received a lawful command from Captain
[D.G.], his superior commissioned officer, then known to by . . . 
[appel-lant] to be his superior commissioned officer, given through and
by Sergeant First Class [R.M.], to sign in hourly with the Staff Duty NCO
between 1700 and 2200 when not working, or words to that effect, did, at
or near Fort Campbell, Kentucky, . . . willfully disobey the same.



The evidence shows that appellant was a suspect
in the larceny of military property. That offense occurred in late 1995.
However, appellant had no conditions on his liberty until some time in
June 1996. For reasons not totally clear from the record, appellants commander,
Captain D.G., decided to restrict him to limits at that time. Among the
terms of the restriction order was a requirement that appellant sign in
with the Staff Duty NCO (noncommissioned officer) at specified times. Appellants
failure to appear at the scheduled times and sign in constituted the gravamen
of the offenses at issue.
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.
FOOTNOTES:
1/ The granted issue asks:


WHETHER THE MILITARY JUDGE
ERRED BY NOT INSTRUCTING THE COURT-MARTIAL PANEL REGARDING FAILURE TO REPORT
(ARTICLE 86(1)) AS A LESSER-INCLUDED OFFENSE OF SPECFICATIONS 4 AND 8 OF
ADDITIONAL CHARGE I, ALLEGING VIOLATIONS OF ARTICLE 90, WHERE THE ISSUED
ORDER MERELY APPOINTED A TIME AND PLACE TO REPORT, AND APPELLANTS FAILURE
TO FOLLOW THAT ORDER AMOUNTED TO NOTHING MORE THAN A FAILURE TO REPORT.


While this issue was submitted to
us and granted as drafted above, inexplicably, specifications 5-7 were
omitted from this issue. The offenses that were alleged in specifications
4 and 8 are identical to those in specifications 5-7. All were alleged
originally as Article 90 violations and were reduced by the court-martial
or the Court of Criminal Appeals to Article 92 violations. Therefore, we
will treat this issue as if it was granted to address specifications 4-8,
in the interests of justice and judicial economy. We see no difference
between all of these specifications.
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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