Nearly eight years ago, in United States v. Hayes, 71 M.J. 112 (C.A.A.F. May 1, 2012) (CAAFlog case page), a unanimous CAAF reversed an Airman’s conviction for dereliction of duty in violation of Article 92 because the Airman:


71 M.J. at 113. The alleged source of that duty? “The Nevada state law concerning consumption of alcohol by persons under the age of twenty-one.” Id. CAAF reversed the conviction because – while the prosecution argued to the military judge that obeying state laws was a custom of the service – no evidence was presented to the members during trial to show that Hayes “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.” 71 M.J. at 114.

The prosecution in Hayes employed a dereliction theory because (it seemed) the Air Force didn’t have a general order prohibiting the underage consumption of alcohol. The Army, however, does have such an order: Army Regulation 600-85, paragraph 3-2c. That order states:

Underage drinking is prohibited. Army policy governing the minimum age for dispensing, purchasing consuming,and possessing alcoholic beverages is found in AR 215–1, chapter 10. Any underage Soldier using alcoholic beverageswill be referred to the ASAP for screening within 5 working days except when permitted by AR 215–1, paragraph10–1f.

But with a recent opinion in United States v. Helton, No. 20190094 (A. Ct. Crim. App. Dec. 18, 2019) (link to slip op.), a three-judge panel of the Army CCA holds that the order is not punitive.

Judge Rodriguez writes:

“[I]f a regulation does not contain language establishing that it is a punitive regulation, a violation of the regulation is not a criminal offense under Article 92(1) [UCMJ].” United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F. 1998). Paragraph 3-2c of AR 600-85 does not contain language stating it is punitive. Accordingly, appellant pleaded guilty to a charge “[i]nvolving a legal standard that does not constitute an offense under Article 92, UCMJ, undermining appellant’s conviction ‘as a matter of law.”‘ Id. at 339 (quoting United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996)) (citing Prater, 32 M.J. at 436).

Slip op. at 3 (modification in original). A footnote adds:

Other provisions in AR 600-85 specifically state that violations of that provision are punishable under the UCMJ. See, e.g., paras. 4-2q, 4-1 lh, 10-2a, and 10-4a.

Slip op. at 3 n.2.

12 Responses to “The Army CCA finds that an Army regulation prohibiting underage drinking isn’t punitive”

  1. stewie says:

    Assuming it didn’t take place on a Fed only jurisdiction base, why aren’t they charging this (ignoring the why are they charging this at all question for the moment) as a 134?
    As to why are they charging it at all…well, why are they charging this at all? They have the drugs and whatnot, what extra punishment do they think they are getting for underage drinking? An hour?

  2. Sea says:

    Seems like you could merely turn down an Article 15 alleging underage drinking from now on and get off scot free. Seems like this handicaps the Commander to only giving an LOR for this offense as long as there isn’t another charge.

  3. Vulture says:

    Like I said, the military has an alcohol problem, not a sexual assualt problem.

  4. Nathan Freeburg says:

    Vulture is right of course.  But you put military installations in the middle of nowhere (for a variety of reasons…mostly necessity), and they have nothing to do…it used to be that you could rely on junior enlisted to get hitched and produce a bunch of offspring (creating its own problems)…but society has moved away from that.  And then you tell Congress you will have zero tolerance and reduce the allegation rate to zero.  Again, what is E-4 Snuffy going to do with his or her free time?  (Hint: BOSS or whatever you call it now ain’t run by people hip and young enough to fix it.)

  5. Cloudesley Shovell says:

    I’ll keep asking this question:  Why oh why do SJAs and JAGs continue to clutter up cases with silly charges that, standing alone, would barely merit more than a talking to by a senior NCO, let alone Article 15? 
    This was a use and distribution of drugs case.  Yet it gets all tangled up in appellate review over the silly drinking underage stuff.  Good grief.
    Kind regards,

  6. Zachary D Spilman says:

    Good grief.

    Particularly considering that the appellant in Helton pleaded guilty to violating the order prohibiting underage drinking.

  7. K fischer says:

    Back when I was at Benning, I’d plead my client guilty to the Kennedy assassination for a 4 month deal on a 55 meth pill distribution charge.  But that was between 2002 and 2007 when that kind of misconduct would get you at least a GCM with a 18 month limitation.  Seems like drug distribution ain’t that big a deal with all these rapists running around nowadays.

  8. K fischer says:

    And, sometimes you sign a deal when the Government gets stuck on stupid by insisting insists that your client pleads guilty to the charge in order to get the deal and hope the MJ tells them they need to dismiss the charge.

  9. Cloudesley Shovell says:

    My comment was directed entirely at those learned counsel on the government side of things.  The ones with all the power to clean up the case before it gets sent off for appellate review.  I agree with your points K fischer.
    Kind regards,

  10. K fischer says:

    Sir Cloudesly,
    Oh, I recognized and agreed with your, as usual, brilliant point.  My comment was in response to Zack who appeared to infer some sort of blame should also be placed on the Accused for pleading guilty to an offense to which he should not have pleaded guilty.  My point would have been better made had the MJ sentenced Helton to 18 months instead of the 5 months that she did, which resulted in his deal only shaving off one month of his sentence.
    Holy smokes!!!!  This was referred as a Special!!  This would have been a GCM back in the day.  This guy was snorting coke and dealing meth marketed as ecstasy, which happens to be a problem in Columbus from what I hear.  I guess the resources expended to keep drug dealers out of the Army is taking a backseat to using said resources to prosecute and convict guys like Whisenhunt and Gilpin.

  11. Zachary D Spilman says:


    Not what I meant to imply.

    I just imagined that some inquiry into the punitive nature of the order would have been part of the plea inquiry. Crazy, I know…

  12. k fischer says:

    I’m glad we got that……straight.

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