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United States Court of Military Appeals
May 7, 1992, Argued ; September 14, 1992, Decided
NMCM 89 2090
[*150] Opinion of the Court
Before a military judge sitting as a general court-martial, appellant pleaded guilty to two specifications of violating a Navy Regulation (OPNAVINST 5510.1G) by failing to safeguard classified materials in his possession, in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, and violating 18 USC § 793(e) and § 793(f)(1), charged under Clause 31 of Article 134, UCMJ, 10 USC § 934. The military judge sentenced him to a bad-conduct discharge, confinement for 2 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence. The Court of Military Review set aside the conviction of 18 USC § 793(f)(1) because prosecution was barred by the statute of limitations, affirmed the remaining [**2] findings of guilty, and affirmed the sentence. 33 M.J. 781, 783 (1991). We granted review of the following issues:
DOES THE MANUAL FOR COURTS-MARTIAL'S PREEMPTION PROVISION PROHIBIT THE GOVERNMENT FROM TRYING AN ACCUSED FOR THE ARTICLE 134 OFFENSE OF VIOLATING THE FEDERAL ESPIONAGE ACT WHERE THE SAME MISCONDUCT COULD HAVE BEEN CHARGED AS THE ARTICLE 92 OFFENSE OF VIOLATING THE NAVY'S INFORMATION SECURITY REGULATION?
DOES APPLICATION OF 18 USC § 793(e) TO A CASE WHERE A SERVICEMEMBER HAD AN APPROPRIATE SECURITY CLEARANCE AND INITIALLY CAME INTO POSSESSION OF CLASSIFIED DOCUMENTS IN THE PERFORMANCE OF HIS OFFICIAL DUTIES VIOLATE THE FIFTH AMENDMENT NOTICE REQUIREMENT?
MAY A SERVICEMEMBER BE CONVICTED OF AN 18 USC § 793(e) VIOLATION WHERE HE RETAINED CLASSIFIED DOCUMENTS WITH THE INTENT TO USE THEM IN THE PERFORMANCE OF HIS OFFICIAL DUTIES?
[**3] Appellant had been in the Navy for over 18 years and had been an operations specialist for 16 years. He had handled classified materials during his entire career as an operations specialist. One of the violations of Navy regulations and the statutory violation were based on appellant's retention of 311 classified items, acquired during previous assignments, and taking them home where he did not properly safeguard them.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
35 M.J. 149 *; 1992 CMA LEXIS 171 **
UNITED STATES, Appellee, v. James F. McGUINNESS, Operations Specialist Chief, U.S. Navy, Appellant
Prior History: [**1] No. 67,241.
classified, military, Articles, classified material, unauthorized, violations, offenses, notice, doctrine of preemption, safeguard, vagueness, punitive
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