NEW, Michael G.

SPC, USA, 450-73-3242

Headquarters and Headquarters Company,

1st Brigade, 3d Infantry Division

APO Army Europe 09226

Preliminary Memorandum of Authorities in Support of

Motion to Dismiss:

Unauthorized Alteration in Uniform


Specialist Michael New has been charged with failure to obey a lawful order, to wit: failure to wear the prescribed United Nations uniform for deployment on 10 October 1995. The "U.N. Uniform" consists of the United Nations blue cap or beret (both bearing the symbol of the United Nations insignia), and a shoulder sleeve insignia (SSI bearing the symbol of the United Nations insignia). This motion to dismiss challenges the lawfulness of the order to wear any relevant form of United Nations insignia on a United States Army Battle Dress Uniform (BDU).

This order violates: (a) Article I, Section 9 of the United States Constitution; (b) 5 U.S.C. Sec. 7342; (c) 32 C.F.R. Sec. 578.19; and (d) Army Regulation 670-1, Wear and Appearance of Army Uniforms and Insignia, (henceforth AR 670-1). Moreover, Michael New would violate existing civil and criminal codes if he wore the required United Nations insignia.


Accepting or wearing U.N. insignia violates the Constitution

Article I, Section 9 of the United States Constitution provides, in pertinent part:
No Title of Nobility shall be granted by the United States; and no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The Department of the Army and the Department of Defense have recognized that this constitutional provision prohibits U.S. Army personnel from wearing "decorations, medals, ribbons, and similar devices" from any foreign government. 32 C.F.R. Sec. 578.19(a), provides as follows:
Constitutional restriction. No person holding any office of profit or trust under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. This includes decorations, awards, and gifts tendered by any official of a foreign government.


Accepting or wearing the U.N. insignia violates the U.S. Code

There can be no question that U.S. Army personnel are bound by the provisions of Article I, Section 9. If the plain language of the Constitution were not enough all doubts evaporate upon examination of 5 U.S.C. Sec. 7342 which prohibits all federal employees from accepting any gift from any foreign government. 5 U.S.C. Sec. 7342(a)(1)(D) makes it clear that military personnel are subject to this ban, "For the purposes of this section 'employee' means--a member of a uniformed service."

It is also beyond question that the United Nations is a "foreign government or state" within the meaning of the Constitution and laws of the United States. Specifically, 5 U.S.C. Sec. 7342(a)(2) provides:

For the purpose of this section "foreign government" means--
(A) any unit of foreign governmental authority, including any foreign national, State, local, or municipal government;
(B) any international or multinational organization whose membership is composed of any unit of foreign government described in subparagraph (A).
Nor can there be any issue raised as to whether an insignia on a patch, cap, beret, or the like is a prohibited article under the Constitution and laws. Again 5 U.S.C. Sec. 7342(a)(4) stipulates:
For the purpose of this section "decoration" means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from a foreign government.
The Army's response to discovery (17 November 1995) contains a document entitled "Troop Contributing Nations Aide Memoire" which makes it clear that it is the United Nations which is giving the contested items of dress to U.S. soldiers. (2) See, p. 6-8 which specifies: "The UN will take responsibility for providing the following items of clothing [berets, caps, badges, shoulder patches, armlet, and scarves] to all ranks. ..." (3)

Congress has repeated the constitutional prohibition on receiving items from foreign governments in statutory form in 5 U.S.C. Sec. 7342(b):

An employee may not--
(1) request or otherwise encourage the tender of a gift or decoration; or
(2) accept a gift or decoration, other than in accordance with the provisions of subsections (c) and (d).
Neither of the above-referenced subsections (Sec. 7342(c) or (d)) provide a justification for the acceptance of a United Nations insignia under the circumstances of this case. Subsection (d) is the one which is relevant to the military. However, this subsection, in relevant part, gives the consent of Congress for individuals to accept, retain, and wear "a decoration tendered in recognition of active field service in time of combat operations." (4) The United States Army steadfastly insists that this is a peace operation under Chapter VI of the United Nations Charter. See, Information Briefing of CPT Mike Klein (5) (second item in Discovery Response of 17 November 1995). (6) See also, "Information Paper" dated 5 October 1995, re: "Authority to Deploy a U.S. Army Unit to the Former Yugoslav Republic of Macedonia" by the Office of the Office of the Chief of Legislative Liaison, Department of the Army. (7) However, the United Nations Participation Act, 22 U.S.C. Sec. 287d-1 specifically denominates and authorizes the use of military personnel under Chapter VI only as "observers, guards, or in any noncombatant capacity." (Emphasis supplied.) Thus, the congressional authorization for wearing foreign decorations awarded for "combat operations" contained in 5 U.S.C. Sec. 7342(d) by definition cannot be construed to apply to this "peace" operation.


Accepting or wearing the U.N. insignia violates federal regulations

The Department of Defense and the Department of the Army have followed the requirements of the United States Constitution and the U.S. Code and have adopted regulations to implement the ban on the acceptance of foreign insignia. The general provision is contained in 32 C.F.R. Sec. 578.19. This regulation appears to be in specific reply to the directive given in 5 U.S.C. Sec. 7342(g) for each agency which employs federal workers to adopt regulations to ensure that its employees do not violate the Constitution or law with respect to the acceptance of foreign government items. 32 C.F.R. Sec. 578.19(g) specifically bans the acceptance of foreign service medals unless "specifically authorized." The specific authorization must come from Congress according to the Constitution itself, 5 U.S.C. Sec. 7342 and 32 C.F.R. Sec. 579.19(e).


Wearing the U.N. insignia violates Army uniform regulations

We have already seen that the Constitution, the United States Code, and the Department of Defense Regulations clearly prohibit the use of the United Nations insignia in manner required in this case. Express approval of the Congress of the United States is required to wear any insignia of a foreign government. The United Nations is defined by law as a foreign government within the meaning of this rule. Therefore, any Army regulation to the contrary cannot stand under this superior law.

However, Army regulations themselves clearly prohibit the use of the U.N. insignia in this case. AR 670-1 Para. 1-4 provides:

Only uniforms, accessories, and insignia prescribed in this regulation or in the Common Tables of Allowance (CTA) (8), or as approved by Headquarters, Department of the Army (HQDA), will be worn by personnel in the U.S. Army.
AR 670-1 Para. 3-4 governs insignia to be worn on the Battle Dress Uniform (BDU). Para. 3-4(k) contains the following express prohibition: "Foreign badges, distinctive units insignia, and regiment distinctive insignia will not be worn on these uniforms." (Emphasis supplied.)

AR 670-1 Para. 26-3 specifies the types of berets which are authorized for wear by U.S. Army personnel. These are: the black beret (Ranger units), the green beret (Special Forces), and the maroon beret (airborne units). The United Nations blue beret is not listed in this chapter, nor anywhere else in AR 670-1, and is not authorized for wear.

U.N. blue baseball caps are not to be found anywhere in AR 670-1. The BDU has specified caps which are authorized. (Para. 3-2(b)(1)). Optional headgear are limited to authorized berets and Drill Sergeant hats. (Para. 3-2 (c)(7)).

Para. 27-16 of AR 670-1 covers SSI. Para. 27-16a specifically lists echelons (e.g., divisions, regiments, brigades, etc.) authorized to wear SSI. The unit to which SPC New was assigned is now part of United Nations Protection Forces (UNPROFOR). UNPROFOR are not listed in this section and their SSI is therefore unauthorized.

AR 670-1 Chapter 28 governs the wearing of decorations, service medals, badges, unit awards, and appurtenances. This chapter expressly governs the wearing of "foreign military decorations" (Para. 28-6(h)), "foreign unit awards" (Para. 28-6(i)); and "non-U.S. service medals and ribbons" (Para. 28-6(j)). None of these subsections even arguably authorizes the wearing of the U.N. insignia relevant to this case. Moreover, Para. 28-3 makes it clear that commanders may require subordinates to wear authorized awards in parades, reviews, inspections, funerals, ceremonial, and social occasions. On all other occasions "awards may be worn by all soldiers on the class B uniform at the wearer's option during duty hours and when off duty." Para. 28-3(c). Obviously, the class B uniform is not the BDU. No authorization exists to compel a soldier to wear foreign decorations on the BDU under any circumstances.


SPC New would violate federal criminal and civil law by accepting or wearing the U.N. insignia

If Special Michael New were to obey the order of his commanders to acceptance the SSI, cap, or beret given by the United Nations he would become subject to a civil action which could be filed by the Attorney General under 5 U.S.C. Sec. 7342(h). In addition to the fair market value of these items, New could be subject to a $5,000 civil fine for accepting these items from an entity that federal law defines as a foreign government.

Moreover, New could also be criminally charged under Article 134 of the Uniform Code of Military Justice for "Wearing unauthorized insignia, decoration, badge, ribbon, device, or label button." See Par. 113 of Manual for Courts-Martial.

Therefore, New would have in fact been placed in potential legal jeopardy had he in fact obeyed the order to accept an item from a foreign government and wear the same.


SPC New had no duty to obey this unlawful order

The long-standing rule of law recognized by the United States Court of Military Appeals is that orders that violate superior law need not be obeyed. In United States v. Nation, 26 C.M.R. 504, 506 9 USCMA 724, 726 (1958), the court said:
General regulations which do not offend against the Constitution, an act of Congress, or the lawful order of a superior are lawful, if "reasonably necessary to safeguard and protect the morale, discipline and usefulness of the members of a command and ... directly connected with the maintenance of good order in the services." United States v Martin, 1 USCMA 674, 5 CMR 102; paragraph 171, Manual for Courts-Martial, United States, 1951; United States v Milldebrandt, 8 USCMA 635, 25 CMR 139.
New's actions cannot be criminalized under the law. (9) His actions were directly in line with four superior orders: the Constitution, the United States Code, the Code of Federal Regulations, and Army Regulations. He was well within his rights and the law when he stood in formation in the official and lawfully authorized uniform of a United States soldier.


The purpose of the provision in Article I, Section 9 was to ensure that United States personnel always maintain an undivided and exclusive loyalty to the United States of America. An elaborate statutory and regulatory scheme has been put in place to ensure that U.S. military personnel are not tempted or coerced to violate this principle of undivided loyalty.

Michael New has clear regulatory, statutory, and constitutional grounds for his contention that the order to require him to take to alter his U.S. uniform to demonstrate allegiance to a foreign power was unlawful. He stands firmly within the intent of the Founding Fathers.

No other conclusion is legally possible. The order to wear the U.N. uniform was illegal per se. The charge must be dismissed.

Dated: December 6, 1995


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{1} This memorandum is preliminary in nature. Completion of discovery is necessary to be fully equipped to argue the Motion to Dismiss.

{2} A copy is attached for the convenience of the Court.

{3} These items are not issued by the Army, nor are they available for sale under the auspices of the CTA. Accordingly, it is clear that the U.N. "Memoire" correctly states that these items are "given" by the United Nations to the military personnel.

{4} The tenor of this provision is much more in line with a medal awarded after service has been rended than a shoulder patch, cap, and beret issued for identification in advance of deployment. It is highly doubtful that this subsection can be legitimately stretched to include the U.N. paraphernalia at issue here even if the other hurdles concerning the use of this provision are somehow overcome.

{5} A copy of the cover sheet and the relevant page are attached for the convenience of the Court.

{6} The Army may attempt to claim that this action is authorized under Chapter VII of the U.N. Charter despite the briefing presented to SPC New which claimed Chapter VI authority. A separate motion to dismiss challenges the legality of the order to deploy no matter which Chapter of the U.N. Charter is the claimed basis. For the purposes of this present motion, it is sufficient to note two things:

First, the testimony of Conrad K. Harper, Legal Advisor, Department of State, "On Legal Authority for UN Peace Operations" submitted to the House Government Operations Committee on March 3, 1994, makes it clear that the necessary "arrangements" contemplated in Chapter VII of the U.N. Charter (Section 43) have never been concluded. (A copy of this document is attached for the convenience of the court). Therefore, it is impossible for the U.S. Army to claim Chapter VII authority. (This document was supplied by the prosecution in their initial response to our discovery request). Harper stated (p. 3):

With respect to U.S. law, the President has both statutory and constitutional authority to enable the United States to participate in and support UN peace operations. In particular under Section 6 of the United Nations Participation Act [22 U.S.C. Sec. 287d], the President is authorized to negotiate special agreements with the UN Security Council, thereby making units of the U.S. Armed Forces available to the Council on its call pursuant to Article 43 [Chapter VII] of the UN Charter. Such agreements are subject to the approval of Congress, but further Congressional authorization would not be required for the President to make forces available pursuant to such an agreement in a particular case. In practice, of course, no action had ever been taken under Section 6 of the Act because no agreements have ever been concluded under Article 43.
Second, no Army regulation has been properly promulgated which justifies any distinction between Chapter VI and Chapter VII actions with regard to the use of foreign insignia. See, e.g., infra, the discussion concerning AR 670-1 Para. 3-4(k) which specifies that on the BDU "[f]oreign badges ... will not be worn on these uniforms."

{7} Copy attached for the convenience of the court.

{8} The CTA contains none of the relevant items.

{9} The integrity of the military uniform is such a high national concern that Congress has made it a crime to wear the uniform or any distinctive part thereof in an unauthorized manner. 18 U.S.C. Sec. 702.