UNITED STATES, Appellee v. JUDSON C. CROSS, Airman Third Class, U. S. Air Force, Appellant, 14 C.M.A. 660

Opinion of the Court Quinn, Chief Judge: A special court-martial at Goose Air Base, Labrador, convicted the accused of disrespect toward a superior officer, failure to obey an order, and wilful damage to a picture window in a non-commissioned officers’ open mess, in violation of Articles 89, 92, and 108, respectively, Uniform Code of Military Justice, 10 USC §§ 889, 892, and 908. It sentenced him to a bad-conduct discharge, reduction in grade, confinement at hard labor for four months, and partial forfeiture of pay for the same period. Intermediate appellate authorities affirmed.

We granted review to consider the accused’s contention that a pretrial statement by him was improperly admitted into evidence. At trial, no objection was made to the admission of the accused’s statement. The failure to object often results in an incomplete picture of the essential facts. For example, evidence to overcome the basis for a particular objection is not presented; or steps that could be taken to guard against the court-martial’s consideration of inadmissible evidence are not initiated. See United States v Diterlizzi, 8 USCMA 334, 24 CMR 144; United States v Dupree, 1 USCMA 665, 5 CMR 93.

Consequently, unless the record of trial indicates a manifest injustice would result from the failure to review the issue, this Court, with other Federal appellate courts, has not been willing to overturn an otherwise proper conviction, on the ground that evidence admitted without objection by the accused should not have been used against him. United States v Dial, 9 USCMA 700, 26 CMR 480; United States v Fisher, 4 USCMA 152, 15 CMR 152. True, because of the limitations of defense counsel in a special court-martial, we have sometimes relaxed the rule. Here, defense counsel was qualified within the meaning of

Article 27 (

b) of the Uniform Code, 10 USC § 827; and the record of trial contains testimony by an eyewitness to the offense to which the pretrial statement in issue relates. In this case, therefore, no reason appears to disregard the general rule of waiver. United States v Dial, supra, at pages 704, 705. It is, however, argued that the evidence of record shows a flagrant violation of

Article 31, Uniform Code of Military Justice, 10 USC § 831, and requires reversal of the conviction, in the interest of justice, without regard to the absence of objection or the other evidence of guilt. See United States v Webb, 10 USCMA 422, 27 CMR 496. We disagree with the construction of the evidence upon which the argument is based. Since elaboration of our disagreement necessitates the same kind of review as consideration of the accused’s assignment of error, we think it appropriate to deal with the merits.

Airmen of less than noncommissioned rank were ordinarily not permitted to use the facilities of the American Non-commissioned Officers’ Mess at Cartwright Air Station, Labrador.-, However, on “certain nights” they were permitted entry. July 4th was such a night. Airman First Class Hugh W. Parsons was seated with the accused and Airman Havis at a table in the Mess. They were drinking beer. “ [S] uddenly,” the accused picked up a bottle and threw it at a thermopane picture window about ten feet away. He “mumbled something” about wanting u “to_ break the window.” Master Sergeant Gene B.

Derrickson, the Mess Secretary-Custodian, heard the crash. The bartender told him that “somebody from this table had thrown a bottle against the window.” He approached the group at the accused’s table “to investigate.” His testimony continues as follows: “Q. Did you make an inquiry of any .individual seated at the table with Airman Cross ? “A. Yes, sir, I asked Airman Havis if he had thrown the bottle against the window and he said no. Then I went to Airman Parsons and asked him and he said Airman Cross had thrown the bottle, then I asked Airman Cross and he said yes. “Q. What did you do then? “A.

I asked Airman Cross to leave the Club at that time. “Q. Did he? “A. No, sir. “Q. What did you do next? “A. I repeated it again, to leave the Club and he said no and so then I called the OD. “Q. Did the OD come to the Club? “A. Yes, sir. “Q. Did Airman Cross depart from the Club? “A. Yes, sir.” Captain James W. Dove of the accused’s squadron was the Officer of the Day. On receiving Sergeant Derrick-son’s telephone call, he went to the Mess. He proceeded directly to the accused’s table and “asked [him] to leave the NCO Club.” The accused did.

In the hall outside the Club rooms, Captain Dove told the accused to go to his quarters. The accused walked away in the opposite direction. Thereupon, Captain Dove ordered him “to go to his room and remain there for the remainder of the evening.” The accused went toward his room. But, about an hour later, he was seen in- the Airmen’s Club. He was called out by Captain Dove. In the conversation that followed, he uttered the obscene words which led to the charge -of disrespect toward a superior officer.

At trial, the accused testified, in substance, that to celebrate the July 4th holiday he imbibed “a case or more’” of free beer at the Airmen’s Club. He remembered practically nothing of his activities after he left that Club. He “believe [d]” he later sat at the table in the Noncommissioned Officers’ Mess with Airman Havis, but he could not remember if Parsons was present. He could not recall “throwing the bottle’” at the window, although it was “possible” he had done so.

He also maintained he had no recollection of any conversations with Captain Dove, except for a “brief idea” that he talked, to him in the hallway outside the Mess. Appellate defense counsel contend it was error to admit into evidence the accused’s response to Sergeant Derrick-son’s question, because he was not first advised of his rights under

Article 31. The board of review considered the contention. It concluded Derrickson was not engaged in any action connected with law enforcement and was not required to advise the accused preliminarily of his rights under the Article. See United States v Caliendo, 13 USCMA 405, 32 CMR 405; cf. United States v Nowling, 9 USCMA 100, 25 CMR 362. Had the issue been raised at trial by proper objection, and submitted to the court-martial by appropriate instructions, our review would be limited to whether there was evidence to justify submission of the issue to the fact finders.

United States v Acfalle, 12 USCMA 465, 469, 31 CMR 51; United States v Dandaneau, 5, USCMA 462, 18 CMR 86. Whether we should use the same test to review the correctness of the board of review’s determination of an issue raised for the first time before it, need not detain us. We are satisfied that, in the situation presented by the record of trial, Sergeant Derrickson was not required to preface the question he addressed to the accused with preliminary advice as to the provisions of

Article 31. The Secretary-Custodian of a mess is, in effect, its general manager. AFM 176-3, Open Mess Cost Control and Management Manual, February 23, 1962. His responsibilities are defined by regulations. These do not specifically list the duty to maintain order and decorum among the members and guests, but that responsibility is plainly inherent in the office. AFR 176-11, paragraph 14, December 6, 1962. It unmistakably appears from the evidence that, in approaching the accused’s table, Sergeant Derrickson was acting in his capacity as a mess official and for a mess purpose.

In other words, he addressed the accused as Custodian of the Mess, not as a superior noncommissioned officer purporting to exercise disciplinary authority over him. See United States v Grant, 10 USCMA 585, 28 CMR 151; United States v Dodge, 14 USCMA 440, 34 CMR 220. Nor did he act as a law enforcement official engaged in gathering evidence for prosecution of a crime. United States v Souder, 11 USCMA 59, 61, 28 CMR 283; United States v Baker, 11 USCMA 313, 29 CMR 129; see also United States v Malumphy, 13 USCMA 60, 32 CMR 60.

As appellate Government counsel ably argued in their brief, and at the hearing, Der-rickson’s actions in talking to the accused* illumine his status and his purpose with unusual clarity. He did not seek to implicate everyone at the table, but confined himself to ascertaining the person who actually threw the bottle; he did not inquire into the reasons or the circumstances for the act, but merely asked the accused, who had been permitted to enter the Club as a special guest, to leave.

When the accused refused to go, Derrickson did not order him out, as a noncommissioned officer exercising disciplinary authority over him would have done; nor did he call the Air Police for help, as a law enforcement agent seeking assistance would have done. He called the Officer of the Day. And he merely asked him, as Captain Dove testified, “to have Airman Cross leave the NCO Club.” He made no accusation of criminal conduct against the accused; and he placed no such charge against him.

In sum, the evidence demonstrates that Derrickson, acting only as a mess manager engaged in the ordinary discharge of his responsibility, sought to ascertain the identity of a disorderly guest for the sole purpose of requesting him to leave the Club. Under the circumstances, he was not required to refer to the provisions of

Article 31, as a preliminary to his inquü'y. See United States v Malumphy, 12 USCMA 639, 31 CMR 225; United States v Hopkins, 7 USCMA 519, 22 CMR 309; United States v Meyers, 15 CMR 745. The decision of the board of review is affirmed. Judge Kilday concurs. The record of trial suggests that 'if the accused had not later disobeyed Captain Dove’s order, and had not been disrespectful to him, no criminal proceedings would have been had on the bottle throwing incident.