LOSS, DAMAGE, OR WRONGFUL DISPOSITION OF MILITARY PROPERTY The disciplinary action to be taken against naval personnel for damaging military property through neglect in violation of UCMJ, Art 108(2), is primarily and essentially a function of command. Depending upon the circumstances, the commanding officer may in his discretion take one of the following actions: (a) Dismiss the charges because they are trivial or because there are other sound reasons for not punishing the accused with respect to the acts charged or alleged (MCM, 1951, par 32d). (b) If it is determined that the offense, under the circumstances, is minor, impose punishment under UCMJ, Art 15 (MCM, 1951, par 32e). Whether an offense may be considered minor depends upon its nature, the time and place of its commission and the person committing it. Generally speaking the term includes misconduct not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court-martial (MCM, 1951, par 128b). A commanding officer should resort to his power under UCMJ, Art 15, in every case in which punishment is deemed necessary unless it is clear that punishment under Art 15 would not meet the ends of justice and discipline. In this connection, superior commanders should restrain any tendency of subordinates to resort unnecessarily to court-martial jurisdiction for the punishment of offenders (MCM, 1951, par 129). (c) If it is determined that punishment under UCMJ, Art 15, would not meet the ends of justice and discipline, subject to jurisdictional limitations, appropriate charges should be prepared and referred for trial by the lowest court that has power to adjudge an appropriate and adequate punishment (MCM, 1951, par 30f). There is no provision prohibiting naval personnel from voluntarily reimbursing the government for loss or damage of governmentowned property for which they have been held responsible. How ever, reimbursement should not be compelled directly or indirectly as an escapement from proposed disciplinary action nor should disciplinary action be withheld or advocated by considerations of reimbursement (CMO 7, 1948, 228). Op JAGN 1954/201. 2 March 1954. II. NATURE AND ELEMENTS OF OFFENSE § 19.1. Generally. § 19. Included Offenses The destruction of government property through neglect constitutes a lesser included offense of the willful destruction of such property, whenever it is reasonably raised by the evidence without regard to its description in the specification. (Citing U. S. v. Clark (No. 190), 1 USCMA 201, 2 CMR 107; U. S. v. Sheehan (No. 1776) 1 USCMA 532, 4 CMR 124; U. S. v. Stout (No. 497), 1 USCMA 639, 5 CMR 67; U. S. v. Groves (No. 1900), 2 USCMA 541, 10 CMR 39.) United States v. Wright (No. 2653), 3 USCMA 431, 12 CMR 187, reversing CM 360820, Wright, 9 CMR 407. § 25.1. Generally. III. PROSECUTION A. IN GENERAL § 25. Charges and Specifications A specification alleged that the five accused, "acting jointly and in pursuance of a common intent, did at Fort Dix, New Jersey, on or about 18 May 1953, without proper authority, unlawfully damage building P6 West located in the Post Stockade by tearing from the walls of said building," certain specified property. In his instructions the law officer stated: "Now, this specification does not allege either willful or damage by neglect; however, the word unlawfully leaves the court with the discretion to make a finding of the elements of willfulness, as I will read it, or the lesser included offense of negligent loss, as I will read it." After the above statement was made, the law officer proceeded to give correct and complete instructions covering the offenses of willfully damaging military property and of damaging the same through neglect. Held that: -the specification alleges the offense of willfully damaging military property. Analysis of the specification reveals that the words "acting jointly and in pursuance of a common intent" were substituted for the words "willfully" or "through neglect" suggested by the form specification (Appx 6c, form 67, MCM, 1951). The term willful is defined as proceeding from a conscious motion of the will; voluntary; intending the result which actually comes to pass; designed; intentional; not accidental or involuntary (Black's Law Dictionary, 3d ed, p 1848). Intent shows the presence of will in the act which consummates a crime. It is the exercise of intelligent will, the mind being fully aware of the nature and consequences of the act which is about to be done and with such knowledge, and with full liberty of action, willing and electing to do it (Black's Law Dictionary, 3d ed, p 993). From the foregoing definitions it is apparent that the common intent alleged in the specification of the charge alleges a willful affirmative act and not one relying upon negligence or an omission to act. Further, joint negligence by the five accused is difficult if not impossible to assume under the facts alleged in the instant specification. Therefore, the specification necessarily alleges the offense of willfully damaging military property. (Citing UCMJ, Art 108(2); MCM, 1951, par 187b.) - that portion of the law officer's instructions that the specification "does not allege either willful or damage by neglect," leaving the determination to the court, was patently erroneous. As previously noted the specification does state the offense of willfully damaging military property. It should also be noted that although the law officer stated that “this specification does not allege either offense," this remark taken in context clearly means the law officer considered that the specification alleged both offenses and left the court with the discretion of making a finding of either willful or negligent damaging of the property. - the complete instructions subsequently given would have cured the opening error if the law officer had given the court the method by which it could have reported just what degree of the offense it included within its general findings of guilty. As the law officer considered that the specification covered either offense, he apparently felt that the court could find either without making any exceptions or substitutions. If the court could find either offense without making any changes in the wording of the specifica tion, the question presents itself which offense was in fact found by the court and as this cannot be determined the board of review can approve only the lesser offense of damaging by neglect. (Citing U. S. v. Simmons (No. 505), 1 USCMA 691, 697, 5 CMR 119, 125.) CM 365065, Tomasulo, Ellis, Campbell, Yurgan and Catanzaro (1953), 12 CMR 531. § 25.7. Damage or value. The accused were charged with, and convicted of, damaging both military and nonmilitary property. Each specification alleged only the value of the property rather than the amount of damage as specified by the Manual (MCM, 1951, subpars 187b, 188b, pp 342-344). There was however proof of the amount of damage in each instance. The accused were also found guilty of larceny of property of a value of over $50 and attempt to desert. On the basis that the conviction of damaging military property supported a maximum confinement of one year and the conviction of damaging nonmilitary property a confinement of five years, the law officer instructed that the total authorized maximum sentence for all offenses was a dishonorable discharge, total forfeitures and confinement at hard labor for twelve years. Each accused was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for three years. However, the convening authority remitted one year of the confinement imposed on one of the accused and two years of the confinement imposed on the other. Held: The specifications were legally sufficient to state the offenses alleged, even though they averred only the value of the property without any reference to the amount of the damage suffered. The verb "damage” utilized in each of the specifications, means "loss, injury, or deterioration" of or to the property involved (Black's Law Dictionary, 3d ed, pp 498-499; Bouvier's Law Dictionary, 3d rev, p 749; Webster's New International Dictionary, 2d ed, p 664) and therefore connotes some amount of damage. Furthermore, actual damage in a specific amount was established by the evidence adduced. Accordingly, the specifications clearly informed each accused of the precise offenses charged and together with the evidence protected them against a second trial for the same offenses. (Citing United States v. Smith (No. 887), 2 USC MA 197, 7 CMR 73; MCM, 1951, subpar 87a (2); United States v. Simpson (No. 1938), 2 USCMA 493, 9 CMR 123.) Held also: Inasmuch as the sentences are limited by the facts alleged in the specifications (United States v. Grossman (No. 796), 2 USCMA 406, 9 CMR 36) which, as above indicated, will only support findings of some damage in a nonspecified amount, therefore less than $20, the authorized maximum confinement for each of the damage offenses was six months (MCM, 1951, subpar 127c, Section A, pp 222, 223). Taking into consideration the fact that a dishonorable discharge and total forfeitures were authorized upon conviction of the offenses charged, the net result would be to reduce each authorized maximum sentence by five years and under the circumstances the law officer's incorrect instructions constituted prejudicial error notwithstanding the sentences actually adjudged were substantially less than that authorized (United States v. Cooper, et al (No. 708), 2 USCMA 333, 8 CMR 133). However, taking into consideration the remissions by the convening authority, the sentences were appropriate. CM 364212, Meirthew and Davidson (1953) 11 CMR 450. A specification alleged that the accused, did, “at building 225, Webb Air Force Base, on or about 1545 hours 3 June 1953 without proper authority, through neglect damage by burning two (2) sheets, one (1) mattress, and one (1) mattress cover of a value of about eighteen (18) dollars and fifty-one (51) cents, military property of the United States." The law officer instructed the court that the elements of the offense were that at the time and place and in the manner alleged, the accused, without proper authority, damaged the property alleged, that the property was military property of the United States, that the damage was the result of neglect on the part of the accused, and that the property was of the value alleged, or of some lesser value, in which case the finding should be in the lesser amount. Held: The specifications sufficiently alleged an offense, notwithstanding the fact that it alleged only the value of the property without any reference to the amount of the damage suffered. The verb "damage" as used in the specification means "loss, injury or deterioration" of or to the property involved (Black's Law Dictionary, 4th Ed, p. 466. and other authorities), and therefore, connotes some amount of damage. The specification, together with the evidence of record of some amount of damage protects the accused against a second trial for the same offense. (U. S. v. Smith (No. 887), 2 USCMA 197, 7 CMR 73; U. S. v. Hopf (No. 372) 1 USCMA 584, 5 CMR 12; ACM S-3071, Rivers, 6 CMR 517, 521). Held also: Although the instructions were not in the most desirable form to require a finding by the court of "damage" to the property rather than "value," the instructions were adequate and under the circumstances no prejudice resulted to the rights of the accused. ACM S-6631, Burrell (1953) 12 CMR 943. § 31. Instructions to Court § 31.3. Elements of offenses, generally. Necessity of giving instructions as to value as an element of wrongful sale of government property, see ACM 7342, Welch, LARC § 36.9. § 31.5. Willful or neglectful damage, loss or destruction. See CM 365065, Tomasulo et al, supra § 25.1. § 31.11. Value of property. See ACM S-6631, Burrell, supra § 25.7. § 37.1. Generally. § 37. Sentence and Punishment Maximum punishment where amount of damage is not alleged, see CM 364212, Meirthew and Davidson, supra § 25.7. The accused was found guilty of damaging a government vehicle through neglect. The evidence showed that the accused was driving a jeep in the early morning hours. His headlights were on, he was driving on the righthand side of the road, he was operating the vehicle in second gear, and as he attempted to make a turn he failed to make the turn and drove against guardrail opposite the intersection. There was no evidence that the accused was driving at an excessive speed or in any sort of reckless manner or that he was under the influence of alcohol or that at the time of the accident he was engaged in the violation of traffic or other safety regulations of any nature. At the trial, the trial counsel argued that the doctrine of res ipsa loquitur was applicable to this situation. Held: The evidence was wholly insufficient to support findings of guilt. No more was shown than that the accused was driving a government vehicle, and that, while he was operating it, he ran against an |