

   
   
   
   U.S. v. McDaniels



IN THE CASE OF
UNITED STATES, Appellee
v.
Shanard R. McDANIELS, Private First Class
U. S. Marine Corps, Appellant
 
No. 98-0825
Crim. App. No. 97-0570
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued March 4, 1999
Decided June 9, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ. joined.

Counsel
For Appellant: Lieutenant John D. Holden,
JAGC, USNR (argued); Lieutenant Robert M. Attanasio, JAGC, USNR.
For Appellee: Lieutenant James E. Grimes,
JAGC, USNR (argued); Commander Eugene E. Irvin, JAGC, USN, and Colonel
Kevin M. Sandkuhler, USMC (on brief).
Military Judge: R. E. Nunley
 


THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge CRAWFORD delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
by military judge alone at a special court-martial of failure to repair,
willfully disobeying the lawful order of a superior commissioned officer,
assault consummated by a battery on a noncommissioned officer, and assault
with a dangerous weapon on a noncommissioned officer, in violation of Articles
86, 90, and 128, Uniform Code of Military Justice, 10 USC §§
886, 890, and 928, respectively. The convening authority approved the sentence
of a bad-conduct discharge, 150 days confinement, partial forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion on April 24,
1998. We granted review of the following issue:

WHETHER SPECIFICATION 1 OF CHARGE II, WILLFUL
DISOBEDIENCE OF A LAWFUL ORDER, FAILS TO STATE AN OFFENSE BECAUSE THE ORDER
WAS AN ILLEGAL ONE.

We hold that Major Learn gave a lawful order.

FACTS
In September 1995, appellant was diagnosed
with narcolepsy; that is, he was prone to "sleep attacks, excessive sleepiness
and spells of sleep paralysis." Thus, he was instructed by a neurologist
not to handle weapons or explosives, participate in range detail or field
duty, operate a government vehicle, or stand watch.
When Major Learn, appellants commander, was
apprised of the diagnosis and prescribed limitations on appellants activities,
he further ordered appellant not to drive his personal vehicle. Major Learn
testified that he issued this order to "protect [appellant] as well as
the Marines and the civilian populus here around Jacksonville, North Carolina,
in the event he did fall asleep behind the wheel." However, after receiving
Major Learns order, appellant was seen driving his private vehicle on
base.
Appellant contends that

Major Learn did not limit his order in time
or place. In fact, the Major testified that his order included not only
Appellants POV but any POV. (R. at 26.)
Major Learns order was illegal because it
forbade Appellant from driving, without a sufficient connection to a valid
military purpose. Major Learns order was limitless in place and duration.
It effectively forbade Appellant from driving any POV anywhere, any time
for any reason.

Final Brief at 6. Furthermore, appellant complains
that since the medical board did not restrict his use of any POV, "[t]he
obvious conclusion is that [his] physician did not believe it was necessary
to restrict [his] access to a POV." In addition, appellant asserts, "there
is no evidence in the record that [his] driving license had been revoked
by the issuing state or any other competent authority."
Congress, based on its authority in Article
I, section 8, clause 14, has provided that disobedience of orders is a
punishable offense. See Arts. 90, 91, and 92, UCMJ, 10 USC §§
890, 891, and 892, respectively. As the Supreme Court has stated: "[T]o
accomplish its mission the military must foster instinctive obedience,
unity, commitment, and esprit de corps." Goldman v. Weinberger,
475 U.S. 503, 507 (1986). There must be a first instinct to obey orders
if the military is to function since its "primary business" is "to fight
or be ready to fight wars should the occasion arise." Parker v. Levy,
417 U.S. 733, 743 (1974), quoting United States ex rel. Toth v. Quarles,
350 U.S. 11, 17 (1955).
Orders requiring performance of military duties
are presumed to be lawful when issued by superiors. Para. 14c(2)(a)(i),
Part IV, Manual for Courts-Martial, United States (1995 ed.). However,
"[t]he order must relate to [a] military duty, which 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."
Para. 14c(2)(a)(iii). Major Learn's order to appellant clearly interfered
with appellant's private rights, but it was permissible in view of its
valid military purpose. Additionally, the order was properly transmitted
and heard. It is unnecessary to determine whether the outer limits of the
order are overly broad, because driving on base was a matter well within
the scope of military authority, which includes protecting civilians from
injury at the hands of military personnel. This is not analogous to an
order not to drink liquor or not to speak to members of his command. Cf.
United
States v. Wilson, 12 USCMA 165, 166-67, 30 CMR 165, 166-67 (1961);
United States v. Wysong, 9 USCMA 249, 26 CMR 29 (1958). Thus, we
agree with these observations of the Court of Criminal Appeals:

We can imagine few situations more likely
to result in fatal or serious injury, to both the driver and anyone who
happens to be in the path of his automobile, than a driver who is subject
to falling asleep at any moment. Just as our superior court upheld the
"safe sex" orders issued in the case of an HIV-positive servicemember in
[United States v.] Womack [, 29 MJ 88 (CMA 1989)], we have no difficulty
finding that, under the circumstances of this case, the order not to drive
a POV had a valid military purpose and was neither overly broad nor did
it impose an impermissible burden on his personal rights. Womack,
29 M.J. at 90-91. The appellant asked the military judge at trial, and
this court on appeal, that we speculate that the real reason his commanding
officer issued this order was to hassle or punish him. However, the officers
testimony at trial, supported by the documentary evidence, indicated that
the reason was to preserve unit readiness and the life and safety of the
appellant and others. Record at 25.

Unpub. op. at 3.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
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