UNITED STATES, Appellee 

v. 

Joseph A. HAYES, Airman First Class 

U.S. Air Force, Appellant 

No. 12-0090 

Crim. App. No. 37588 

United States Court of Appeals for the Armed Forces 

Argued February 13, 2012 

Decided May 1, 2012 

BAKER, C.J., delivered the opinion of the Court, in which ERDMANN, 

STUCKY, and RYAN, JJ., and EFFRON, S.J., joined. 

Counsel 

For Appellant: Captain Shane A. McCammon (argued). 

 

For Appellee: Major Jason M. Kellhofer (argued); Colonel Don M. 

Christensen and Gerald R. Bruce, Esq. (on brief). 

Military Judge: William M. Burd 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Hayes, No. 12-0090/AF 

2

Chief Judge BAKER delivered the opinion of the Court. 

Appellant brings this appeal from a United States Air Force 

Court of Criminal Appeals (CCA) decision affirming his 

conviction for, among other things, violation of Article 92(3), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 892(3) 

(2006), dereliction of duty in that he willfully failed to 

refrain from consuming alcohol while under the age of twenty-one 

in violation of Nevada state law. Appellant petitioned this 

Court for review, and we granted review on the following issue: 

WHETHER THE MILITARY JUDGE ERRED IN DENYING 

APPELLANT’S MOTION TO DISMISS FOR FAILURE TO STATE AN 

OFFENSE, WHERE THE SPECIFICATION OMITTED REFERENCE TO 

A REQUIRED ELEMENT UNDER STATE LAW FOR A FINDING OF 

GUILTY FOR CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21. 

 For the reasons set out below, we hold that the conviction 

for a violation of Article 92(3), UCMJ, dereliction of duty, is 

legally insufficient. The Government failed to establish 

through competent evidence that there was a specific military 

duty, under Article 92(3), UCMJ, to either obey state laws in 

general, or, more specifically, the Nevada state law concerning 

consumption of alcohol by persons under the age of twenty-one. 

BACKGROUND 

 At the time of the offense in question, Appellant was 

nineteen years old. In 2008 and 2009, Appellant was involved in 

a number of drug-related offenses. On July 11, 2008, Appellant, 

while in the company of several other servicemembers, attended a 
United States v. Hayes, No. 12-0090/AF 

3

party at the Luxor Hotel in Las Vegas, Nevada. While in the 

hotel room, Appellant was seen consuming alcoholic beverages. 

Appellant and the other partygoers then moved to the casino 

floor, where Appellant was again seen consuming alcoholic 

beverages. Appellant was subsequently charged with dereliction 

of duty under Article 92(3), UCMJ. The specification included 

the following language: 

In that [Appellant], who knew of his duties at or near 

Las Vegas, Nevada . . . was derelict in the 

performance of those duties in that he willfully 

failed to refrain from drinking alcohol while under 

the age of 21, as it was his duty to do. 

 At trial, Appellant moved to dismiss this specification for 

failure to state an offense, noting that Nevada state law 

prohibited only the public consumption of alcohol by persons 

under the age of 21 in certain circumstances. According to 

Appellant, “pursuant to the state law, he had no military duty 

from consuming alcohol in a non-public place while under the age 

of 21.”1

 The military judge denied the motion, and the trial 

proceeded. In accordance with his plea, Appellant was convicted 

of one specification of use of marijuana, and, contrary to his 

pleas, was convicted of multiple specifications of distribution 

of marijuana and cocaine, all in violation of Article 112a, 

 

1

 The relevant Nevada statute states: “Any person under 21 . . . 

who consumes any alcoholic beverage in any saloon, resort or 

premises where spirituous, malt or fermented liquors or wines 

are sold is guilty of a misdemeanor.” Nev. Rev. Stat. § 202.020 

(2011). 
United States v. Hayes, No. 12-0090/AF 

4

UCMJ, 10 U.S.C. § 912a (2006), as well as the specification of 

dereliction of duty for consuming alcohol under the age of 

twenty-one. He was sentenced to two years confinement, 

forfeiture of all pay and allowances, reduction in rank to E-1, 

and a bad-conduct discharge. The convening authority approved 

the sentence as adjudged, and the CCA affirmed. United States 

v. Hayes, 2011 CCA LEXIS 305, at *7-*8, 2011 WL 6004523, at *3 

(A.F. Ct. Crim. App. Aug. 15, 2011) (unpublished). 

ANALYSIS 

 Appellant argues before this Court that the specification 

failed to state an offense because it did not expressly or by 

necessary implication allege that Appellant consumed alcohol in 

a location prohibited by Nevada state law. However, we need not 

reach the question whether the specification, as worded, put 

Appellant on notice as to what he would be required to defend 

against in the context of an Article 92(3), UCMJ, offense based 

on a violation of state law, because the Government never proved 

that Appellant had a military duty to follow Nevada’s law, 

whatever that specific law provided. 

The test for legal sufficiency is “whether, considering the 

evidence in the light most favorable to the prosecution, a 

reasonable factfinder could have found all of the essential 

elements beyond a reasonable doubt.” United States v. Turner, 
United States v. Hayes, No. 12-0090/AF 

5

25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443 

U.S. 307, 319 (1979)). 

 The elements of Article 92(3), UCMJ, are as follows: 

(a) That the accused had certain duties; 

(b) That the accused knew or reasonably should have known 

of the duties; 

(c) That the accused was (willfully) (through neglect or 

culpable inefficiency) derelict in the performance of 

those duties. 

Manual For Courts-Martial, United States pt. IV, para. 16.b.(3) 

(2008 ed.) (MCM). 

 Article 92(3), UCMJ, requires the existence of a duty.2 The 

MCM states that the duty “may be imposed by treaty, statute, 

regulation, lawful order, standard operating procedure, or 

custom of the service.” MCM pt. IV, para. 16.c.(3)(a). It is 

uncontested that consuming alcohol in any saloon, resort, or 

place where alcohol is sold while under the age of twenty-one is 

a violation of Nevada state law. However, even viewed in the 

light most favorable to the prosecution, there is insufficient 

 

2

 The various iterations of the MCM beginning in 1951 and 

culminating in the current 2008 version list examples of conduct 

to illustrate the limits of Article 92(3), UCMJ. All of the 

examples listed constitute military-specific duties. See, e.g., 

MCM para. 171c (1951 ed.); MCM para. 171c (1969 ed.); MCM pt. 

IV, para. 16.c.(3)(d). A review of our jurisprudence uncovered 

no example of this Court affirming a conviction for dereliction 

of duty imposed by state law alone. See United States v. 

Shavrnoch, 49 M.J. 334, 339 (C.A.A.F. 1998) (accused guilty of 

dereliction of duty for under-age drinking based on an Air Force 

regulation); United States v. Bivins, 49 M.J. 328, 332 (C.A.A.F. 

1998). 
United States v. Hayes, No. 12-0090/AF 

6

evidence in the record for any rational trier of fact to 

conclude, for the purposes of Article 92(3), UCMJ, that 

Appellant had a military duty to obey Nevada state law 

generally.3

The issue of a military duty was discussed briefly during a 

colloquy between the trial counsel and the military judge: 

MJ: What’s the source of the duty to refrain 

from drinking? 

TC: The duty to refrain from drinking is the 

Nevada law which says that any person under the age of 

21 who consumes alcohol in a saloon, or resort, or 

place where alcohol is sold is guilty of a 

misdemeanor. So that would be the duty that he would 

have to refrain from: consuming alcohol in a resort 

that’s open to the public. That’s the duty. 

 

. . . . 

MJ: Now, trial counsel, what is the source of 

the military member’s duty to comply with state law? 

TC: The duty would be that he is under the 

jurisdiction of the state. I mean, if it were -- if 

there were no regulation -- 

MJ: Is that a custom of the service? 

TC: Yes, your honor. 

MJ: I agree. 

 

 This colloquy took place during litigation of the motion to 

dismiss. This was the only time during the course of the trial 

 

3

 This seems particularly so since many violations of state law 

can be prosecuted under Article 134, UCMJ, 10 U.S.C. § 934 

(2006), through the federal Assimilative Crimes Act, 18 U.S.C. § 

13 (2006), assuming at least concurrent federal jurisdiction 

over the situs of the offense. 
United States v. Hayes, No. 12-0090/AF 

7

that the source of the military duty to obey state law was 

raised. The problem here is that argument by trial counsel or 

statements by the military judge are not evidence. There is no 

evidence in the record, and the Government points to none on 

appeal, to support the proposition that Appellant 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, or in the alternative, all state laws in Nevada -- an 

obligation imposed on all citizens within the state.4

 Cf. United 

States v. Pacheco, 56 M.J. 1, 3 (C.A.A.F. 2001) (noting that 

evidence presented at trial was required to prove the existence 

of a duty and satisfy the first element of an Article 92(3), 

UCMJ, offense); United States v. Tanksley, 36 M.J. 428, 430 

(C.M.A. 1993) (“When a servicemember is tried for dereliction of 

duty, ‘the existence of the duty must be demonstrated by the 

evidence.’” (citing United States v. Shelly, 19 M.J. 325, 328 

(C.M.A. 1985))). In short, Article 92(3), UCMJ, requires proof 

 

4

 Taken to its logical conclusion, this proposition implies that 

willful violation of a posted speed limit could result in a 

military servicemember’s conviction under Article 92(3), UCMJ, 

and exposure to a sentence of six months of confinement, 

forfeiture of pay and allowances, and a bad-conduct discharge. 

MCM pt. IV, para. 16.e.(3)(b). Moreover, such a blanket 

assertion does not account for those circumstances where federal 

law may conflict with state law. It is also worth noting that 

the maximum penalty for a violation of Article 134, UCMJ, for 

disorderly conduct and/or drunkenness, is three months of 

confinement and forfeiture of two-thirds pay for three months, 

with no punitive discharge. MCM pt. IV, para. 73.e.(3)(c). 
United States v. Hayes, No. 12-0090/AF 

8

of certain military duties, it does not assume such duties. We, 

thus, conclude the evidence is insufficient as a matter of law. 

CONCLUSION 

The decision of the United States Air Force Court of 

Criminal Appeals is reversed as to Charge I and the 

specification thereunder and they are dismissed. The remaining 

findings and the sentence are affirmed.5

 

5

 While affirming Appellant’s Article 92(3), UCMJ, conviction, 

the CCA alternatively assumed arguendo that the specification 

failed to state an offense and reassessed the sentence on that 

basis. Hayes, 2011 CCA LEXIS 305, at *5, 2011 WL 6004523, at 

*2. Since the CCA did not err in doing so, we affirm the 

sentence as approved and affirmed.