The Overseas Commander's Power to Regllate the Private Life

• Author: By M&jm Wayne E. Alley
• Pages: 02

This article contains an analysis of the ettent to which an overseas commander may lawfully regulate the personal, off-duty activities of service nzembers, civilian employees, and dependents in his oammand. The author dieusses the necessary relationship between lawful reo-ulations and military interests, with emphasis upon padieular military interests which may justifv .regula-tions, and dewlops legal guidelines to assist overseas commanders in the issuance of regulations of thisnature.

I. INTRODUCTION A. NATURE OF THE MILITARY COMMUNITY OVERSEAS

United States military communities overseas are easier to d e scribe by composition than by relationship with surrounding locsl communities. Except in a few places, a United States post or base will he peopled with servicemen, civilian employees of the service, and dependents of both of these. On the fringe of the military community, but more a part of it than of the local population, are workers whose emploment is not with the miii-taly but exclusively for it. Examples are Red Cross staffs, technical representatives of businesses whose products are in the military inventory, and performers of United States contracts

This article will not be concerned with Alaska or Hawaii, but Only with posts and units in foreign countries. The significant

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differences in the latter 0verw.s military communities derive from the varying circumstances under which they are present. These circumstances are legal, which reiate to the agreement under which American forces entered and remain in the host nation; economic, which relate to the health of the local economy and American endeavors to assist it bath through agencies and through individual servicemen or accompanying civilians: social, which relate to lccai customs and attitudes, particularly as they compare to ours; and merely coincidental, which reiate to such matters as how many people live off post and hon many are married to local residents.

As it is quite evident that a commander's power to regulate the affairs of his military community is dependent, if not upon an absolute necessity to regulate, at least upon a nexus betmen the subject of regulation and some military interest, the precise limits of the power will differ from place to place. The local circumstances will ta some degree define the military interest in personal conduct. Because of this, the general canclusions and remarks which fallow, insofar as they treat of specific exercises of command power, may not universally be apposite in every command. But they will be apposite uniess the local circumstances within a command are unusual.

2. COMMAND REGULATZOXS AS LEGZSLATI0.V Throughout this article, the phrases "private life" or "personal activities" or "personal affairs" refer to activities which are not In furtherance of actual military employments such as training, combat, or maintenance of facilities and equipment. "Command regulation" means a dirwtive from a commander to military members under his command, to civilians working for arganizatians under his command or military mpem,isory control, to accompanying dependents, or to any of these.

   Command regulations possess all the incidents af statotory legislation except that of promulgation by a legislative act. The regulatory provisions are directed to the members of the command generally or to those in an affected class. Some a~ prohibitory, some direetory, and m e merely dwlaratory of CUBtom and policies that obtain in the military. The nature of command regulations as enfomeable rules of daily life laid down in so many words (but subject to construction) is shared with statutes. This is not to say that the mode af promulgation does

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   not work important differences in the provisions themselves. Legislative enactment and command promulgation are not merely two different ways of getting the binding words of the rules down an paper and distributed; the modes of promulgation affect the rules themselves. Enactment is a political process, SO its product often is a compromise and well within the ultimate limits of possible govemental control of conduct. It is also often PI'€-ceded by the political prxesses of eliciting information and molding opinion toward widespread acceptance of the act as a desirable pieee of legislation, The legislators do not want to imperil themselves politically before a substantial portion of the ekC-torate.

   In contrast, military command regulations may be arbitrarily promulgated. This observation is not intended to be pejorative but simply descriptive of command power, which is without politieal circumscriptions (in the sense of political processes. asopposed to political considerations). The regulations certainly need not necessarily reflect the desires or attitudes of those wha are expwted to conform.

   Thim is the background-the mode of promulgation as it tends to affect the content of the promulgated rules. The foreground of our interest is the rules themselves and whatever similarities of treatment may be perceived between statutes and regulations.

   Command regulations in the nature of penal statutes ought to be strictly construed.' Perhaps they should be even more strictly construed against the government in criminal prosecutions than statutes would be, because a single person-the commandwhas the absolute pawer to make the rules as stringent as he

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   accused." Applying these standart

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   unilaterally wishes them to be, within the limits of legality discussed belaw. And because of this power, there should be no objection to measuring the regulations against the same standards of comprehensibility and definiteness as would be essential to a statute's validity. If B regulation would fail as a basis for criminal prosecution if it were a statute, it should fail as a regulation for the Same reason.'

   The consequences of criminal conviction may be so severe that our military system of criminal law does not normally punish conduct unaccompanied by Some sort of criminal intent.' A regu-lation which, if violated, would result in punishment for a mere mcurrence 7%-ithout regard to an accompanying intent at least to bring it about, or to some degree of negligence in failing to preclude it, or to some other subjective culpability, is hardly an instrument of justice.' But, as may statute, a regulation may quite properly proscribe an intentional but essentially harmless and morally innocent act or transaction falling within the purview of regulatory poaer,' for the purposes of the regulation may be achieved only through strict compliance. A number of morally innocent transactions may cumulatively snovball into the very evil sought to be avoided by the commander. The most temperate and mature of noncommissioned officers may be precluded from having a single bourbon highball in his barracks, even though his commander would freely concede the harmlessness of such conduct by him alone.

   A fundamental similarity between statutes and regulations is illustrated in United States v. Sendoval,' where the accused

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   sought an instruction on the defense of accident in a prosecution for article 118[3),' murder, Judge Latimer was of the opinion that, not only was no issue of accident raised [a conclusion in which the other two judges of the United States Court of Military Appeals concurred), but the defense vas barred because the accused pleaded guilty to violating regulations by carrying the weapon he used in the slaying. He thereby conceded that he was not engaged in a lawful act, and the defense of accident could not apply. Assuming a regulation is lawful would it not always follow that a violation is not only punishable under military law but is unlawful conduct no matter what the purpose of scrutiny?

   Just as a statute may be held to b? invalid because in conflict with the fundamental law, an order or regulation may be invalid because of conflict with an overriding rule such as a statue' or regulation issued at a higher military level.' In a newspaper story, "E6 Car Rule is Strictly Illegal,"" the latter sort of cunmct is rather sensationally reported. An "Army lawyer" spokesman for Headquarten, United States Army Europe, is described as having condemned subordinate commands for issuing blanket prohibitions against lawer ranking enlisted men's having and operating their own automobiles, because the theater-wide regulations on the same subject were permissive and contemplated individual evaluations of requests. Such stories, whether or not entirely accurate, are reminders that every commander is in turn commanded.

   Except for such commonplace proscriptions as "No alcoholic beverages are permitted in barracks," few regulstions can bedrafted with decalogue-like simplicity. The Same plaguing problems of definitions, limits of application, and exceptions are met by legislators and commanders alike. Whenever a statute or regulation contains exceptions to prohibitions, the prosecution faces problems of mnstruction, of burden of going forward with the evidence, and of burden of persuasion. At the outset of any such case, the question arises whether the statute or regulation is permissive with prohibited exceptions, or prohibitive with permitted exceptions. The reasonable rule to be auulied in the former in-

   stance, particularly when the edict describes the circumstances under which a transaction may be done and by mere implication prohibits other means," is that the government must persuade the fact-finders beyond a reasonable doubt that the accused's conduct is not within the specific authorization."

   The second type of case can be more complicated" and filled with pitfalls. Shortly after the Uniform Code was enacted, an Army board of review, considering a conviction under a Far East Command regulation which prohibited possession of instruments far administering narcotics...