United States v. Clower

23 C.M.A. 15
CourtUnited States Court of Military Appeals
DecidedMarch 29, 1974
DocketNo. 27,410
StatusPublished

This text of 23 C.M.A. 15 (United States v. Clower) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clower, 23 C.M.A. 15 (cma 1974).

Opinion

OPINION OF THE COURT

Duncan, Chief Judge:

Pursuant to his pleas, appellant was found guilty of two periods of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. Additionally, although he pleaded not guilty to desertion but guilty to the lesser included offense of unauthorized absence, he was found guilty of desertion during a third period of absence between August 19, 1968 and March 14, 1972, by the members of his general court-martial. Appellant was sentenced to a dishonorable discharge, confinement at hard labor for 1 year, total forfeitures, and reduction to pay grade E-l. The convening authority ap[16]*16proved the findings and sentence and deferred confinement pending appellate review. Subsequently, the U. S. Navy Court of Military Review reduced the sentence to a bad-conduct discharge and reduction to pay grade E-l, but otherwise approved the findings.

Appellant contends that the military judge, in his examination of the appellant concerning the alleged desertion, abandoned his role of impartiality and assumed a prosecutorial role. We agree.

I

The Government’s evidence offered to prove Clower’s intent to desert was entirely documentary. Three days after charges against him resulting from two unauthorized absences were referred to trial he absented himself from Parris Island, South Carolina, without authority. According to his service records, his home was Decatur, Georgia. The appellant was married during his last absence in New Westminister, British Columbia. The military judge judicially noted that British Columbia was in a foreign country more than 3,000 miles from Parris Island.

The Government introduced in evidence a copy of a letter postmarked August 29, 1969, Vancouver, British Columbia, written by the appellant to his sister and brother-in-law in Georgia. Apparently a part of the letter was intended for his parents. This letter was damaging evidence tending to show appellant’s intent permanently to remain away from the service. The letter stated, in part:

I’m sorry I left only for your sakes. I’ll try to come home next summer for a visit. I only hope that I’ll be able to do something to justify my leaving. I’m planning to start an organization of the deserters here (there are quite a few) in hopes that we’ll be able to do some good.
I’m awfully sorry that I shot at people just because I was told to. That’s what I’ll have to get off my conscience, not my desertion.
I’ve been hopping from one job to the next and having a pretty hard go altogether. I was always scared and confused about what to do, but now I’m better.
I’m going to immigrate legally now, I hope. That’s why I’m in Vancouver now.
Jeri [referring to his present wife who he indicated earlier in the letter had joined him in November 1968] is in Quesnel, B.C. on a little place we’re buying. Its ten acres with a log cabin on it. We have electricity, but no running water. Its a peaceful, pretty place, though.
We have a baby girl now (Rhonda). Born on April 14th. ...
Would you please send me my Birth Certificate and High School Diploma? I will need them to immigrate to Canada. (Emphasis added.)

The appellant enlisted for 4 years, and prior to May 1968 maintained a good record including a creditable tour of duty in Vietnam where he served in combat helicopters. He was awarded seven medals and awards including the Air Medal, some with two or three stars. Each of appellant’s three absences was terminated by voluntary return to military control. Moreover, upon his last return because of his positive attitude he was released from confinement and restored to duty while awaiting trial. His first sergeant opined that appellant was in the top 10 or 15 Marines in performance in the company.

On direct examination, appellant stated that he never formed a specific intent to desert. He explained that he used the term desertion in the letter "more in the way civilians do” and that the "only intent I had was to form an intent of some kind.” Appellant continued stating that he became confused and disillusioned in Vietnam. After he returned to the United States he found that he was still unable to determine whether his action in Vietnam was right or wrong. He testified, "so I left until such time as I could determine what in my mind was right, and what was wrong.”

On cross-examination appellant acknowledged living in Canada for all but [17]*174 months of his absence. He stated that his child was born in April 1969 and that he was married in Canada in March 1970. Earlier on direct examination, appellant had explained that he obtained immigrant status in Canada in April 1970 "because that was the only way I could legally stay up there,” and that he did not return prior to surrendering in Charleston, South Carolina, because he had not resolved his moral confusion. On direct examination the appellant denied that immigrant status was equivalent to Canadian citizenship. Instead, he explained immigrant status is "like a working visa, a long term visa.” Under cross-examination he acknowledged that he considered buying real property in Canada, and also considered organizing deserters.

At the close of the evidence the military judge solicited questions from the court members. They submitted two questions.1 After the appellant answered the two questions, the military judge engaged him in the following colloquy:

Q. Lance Corporal CLOWER, there has been quite a bit of discussion about the moral conflict which you were trying to resolve. I take it, what you’re talking about, is a conflict with morals, is that correct?
A. Yes, sir.
Q. Your own private morality has had some sort of difficulty matching up with society’s and with the morality of everybody else? Is that right?
A. Yes, sir.
Q. Your own private morality didn’t bother you with respect to leaving on unauthorized absence?
A. No, sir.
Q. Your own private morality didn’t bother you by telling a lie to your parents about purchasing property?
DC: I’ll have to object to that question. I’m not too clear as to what the lie was, that was told to his parents.
MJ: My recollection, in reading Prosecution Exhibit 5, is he indicates that he purchased a piece of property, now he’s told us that he didn’t. Isn’t that correct?

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Related

Starr v. United States
153 U.S. 614 (Supreme Court, 1894)
Bollenbach v. United States
326 U.S. 607 (Supreme Court, 1946)
United States v. Bishop
11 C.M.A. 117 (United States Court of Military Appeals, 1960)
United States v. Marshall
12 C.M.A. 117 (United States Court of Military Appeals, 1961)

Cite This Page — Counsel Stack

Bluebook (online)
23 C.M.A. 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clower-cma-1974.