CAAF’s unanimous opinion in United States v. Hayes, No. 12-0090/AF, 71 M.J. 112 (C.A.A.F. May 1, 2012) (CAAFlog case page) (link to slip op.), setting-aside the contested specification but otherwise affirming the findings and sentence, was predicted in my recap of the oral argument. However, the things unsaid in the Chief Judge’s opinion speak louder than the things said.

Hayes is an opinion about the sufficiency of proof, but the case is really about the limits – if there are to be any limits – of the reach of the UCMJ. Airman First Class Hayes was convicted, by officer members, of (among other things) dereliction of duty, “in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.” The purported source of this duty was a Nevada statute, and the custom of the Air Force to obey state law (there was no applicable Air Force regulation).

During the oral argument in this case the government’s counsel took the position that it is a custom of the service to obey all state laws, answering “yes” to Senior Judge Effron’s question, “That every service member has the duty to obey – a military duty to obey –  every state law, in every state that they happen to be in, no matter how brief the period in time?” (see a transcript of this exchange here). The court’s hostility to this position is evident in the argument audio, however it didn’t survive to the opinion. Instead, the court finds that:

There is no evidence in the record, and the Government points to none on appeal, to support the proposition that Appellant was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law, or in the alternative, all state laws in Nevada — an obligation imposed on all citizens within the state.” Slip op. at 7.

A footnote alludes to the absurdity of the government’s position, but the court merely finds that the government didn’t prove its case, rather than finding that the government couldn’t prove its case because it was predicated on an absurd reading of the Code. The government’s position presumes that Congress intended dereliction of duty to encompass any violation of legal, regulatory, or administrative rules established by a separate sovereign. It’s a nonsensical and historically ignorant legal theory; like calling daydreaming an unauthorized absence. But CAAF’s treatment of the issue is more moderate, and leaves open the possibility of a successful dereliction prosecution using the government’s theory.

Assume, for example, that the appellant’s commander testified that he expected and instructed his personnel to obey all state laws. Would this specification then succeed? Say it were conceded that servicemembers do generally follow foreign (i.e., non-federal) rules, as a service-customary courtesy towards our hosts and out of good manners. Is then the failure to do so a dereliction? The opinion leaves these questions unanswered.

There are other disappointing aspects of this case, such as why the government even bothered to include this novel dereliction charge (the appellant was also convicted of one specification of wrongful use of marijuana, and six specifications of wrongfully distributing marijuana and cocaine), and why officer members – presumably college educated and capable of critical thought – accepted the government’s legal theory. But the court missed a golden opportunity to set a rational, reasonable outer limit to the reach of the UCMJ by rejecting the government’s legal theory and finding that this specification doesn’t state an offense. Hopefully the government will not see this as a license to give the court more such opportunities.

Case Links:
AFCCA’s opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Oral argument audio
Blog post: Argument recap
CAAF’s opinion
Blog post: Opinion analysis

10 Responses to “Opinion Analysis: United States v. Hayes, No. 12-0090/AF”

  1. Christopher Mathews says:

    …why the government even bothered to include this novel dereliction charge …

    Speaking only from my own experience, there’s nothing particularly “novel” about that charge — the Air Force has used it, or some variant thereof, for at least fifteen years when alleging underage drinking offenses in NJP proceedings.  Ordinarily, you wouldn’t expect to see it on a charge sheet, unless the accused turned down NJP or the government took a “kitchen sink” approach to charging — which sometimes happens.

    At some installations, there’s a local reg that prohibits violating the drinking age restrictions of the jurisdiction in which the base is situated.  I predict that those bases that don’t have such regs will have them very, very soon.

  2. RY says:

    I suspect CAAF didn’t set an outer limit because they didn’t need to in this case and maybe had reservations about a blanket answer.  You allude to a good example – foreign jurisdiction.  If the SOFA requires compliance with foreign laws, for example, drinking restrictions, then there is conceivably a military duty.

  3. Cap'n Crunch says:

    To follow up on Judge Matthews comment: I would think, if there is an order and/or regulation to obey a particular state statute on drinking, then you are not looking at a deriliction charge.  I would instead think you’d be looking at a failure to obey an order charge, yes?

  4. Zachary Spilman says:

    I’ll admit to a certain degree of making the perfect the enemy of the good, but there’s a big difference between issuing an order that imposes a duty, and not issuing an order then imposing the duty vicariously.

  5. Cloudesley Shovell says:

    If convening authorities continue this trend of transforming alleged violations of state statute into orders violations, especially if they do so with blanket general orders, I think the next battleground will be whether such an order is a lawful order.  I doubt courts will permit convening authorities to transform minor misdemeanors under state law into felonies under military law absent some clear military purpose or connection to good order and discipline.

  6. Christopher Mathews says:

    @ Cap’n C: dereliction actually can include a failure to follow a regulation, standard operating procedure, or custom of the service.

    If the base drinking-age rule is contained in a general reg, I’d expect the government to write up underage drinking as a failure to obey a lawful general regulation.  That carries a higher maximum punishment than dereliction … which probably wasn’t what CAAF intended, but such is life.

  7. andrewdb says:

    Weren’t there reports awhile back that at least some Marine commands were allowing all Marines to drink at the Marine Birthday Celebration, regardless of their age – the logic being if they were old enough to be Marines they were old enough to drink an alcoholic toast to its birthday (without regard to any state law age requirements)?

  8. NW says:

    @RY.  Completely agree – no need to set an outer limit.  The case is simple – prove up the duty.  I recall being an OIC of Justice at my first assignment and questiioning why the USAF charges underage drinking as a 92 offense when it seems that Article 134 clause 3 (in most cases) is the more appropriate charge.  Because these charges were usually not C-M worthy, judicial review of this flawed practice is long overdue.  It’s good to see CAAF taking phrases like “dereliction of duty” and “good order and discipline” and treating them as what they are – elements of offenses.  They’re not punchlines to be used by lawyers at cocktail parties, if I may very loosely paraphrase Col Nathan R. Jessup.

  9. Christopher Mathews says:

    @ NW — You and your buddy Nate need to go to better cocktail parties.

    Given the fairly simple process for issuing a base reg, I’m somewhat surprised it hasn’t been done Air Force-wide.  If I recall correctly, the Air Force has also dealt with failure to maintain auto insurance in accordance with local law as a dereliction of duty.  That will have to change as well.

  10. Zachary Spilman says:

    Weren’t there reports awhile back that at least some Marine commands were allowing all Marines to drink at the Marine Birthday Celebration, regardless of their age

    That sounds almost… reasonable.

    the logic being

    Now we know it’s not true.