United States v. Gaston

62 M.J. 404, 2006 CAAF LEXIS 250, 2006 WL 558540
CourtCourt of Appeals for the Armed Forces
DecidedMarch 3, 2006
Docket05-0462/AF
StatusPublished
Cited by8 cases

This text of 62 M.J. 404 (United States v. Gaston) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gaston, 62 M.J. 404, 2006 CAAF LEXIS 250, 2006 WL 558540 (Ark. 2006).

Opinions

Judge ERDMANN

delivered the opinion of the court.

Senior Airman Jamahl D. Gaston was charged with absence without leave terminated by apprehension and missing a movement by design in violation of Articles 86 and 87, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 887 (2000). He pled guilty and was convicted on both charges before a military judge at a special court-martial. He was sentenced to a bad-conduct discharge, confinement for six months, a reduction in grade to E-l, and partial forfeitures. Because the military judge failed to inform Gaston that a reduction to E-l was a possible punishment in the case, the convening authority did not approve the reduction but approved the remainder of the sentence as adjudged. The Air Force Court of Criminal Appeals affirmed the findings and sentence with a single modification which addressed the forfeitures. United States v. Gaston, No. ACM S30372 (A.F.Ct.Crim.App. Mar. 7, 2005).

This court will set aside a plea of guilty where there is “a substantial basis in law and fact for questioning the guilty plea.” United States v. Milton, 46 M.J. 317, 318 (C.A.A.F.1997) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)) (quotation marks omitted). In order to establish that Gaston’s absence from his unit was terminated by apprehension, the facts on the record must establish that his return to military control was involuntary. See United States v. Fields, 13 C.M.A. 193, 196, 32 C.M.R. 193, 196 (1962). We granted review to determine whether Gaston’s providence inquiry established that he was guilty of absence without leave terminated by apprehension. We also granted review to determine whether the sentence affirmed by the Court of Criminal Appeals was greater than the sentence approved by the convening authority in violation of Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).1

BACKGROUND

The unauthorized absence charge alleged that Gaston “[d]id, at or near OAFB [Offutt Air Force Base], Nebraska, [on or about] 13 Jan 03, without authority, absent himself from his place of duty at which he was required to be, to wit: Bldg 457, Rm 700, located at OAFB, NE and did remain absent until he was apprehended [on or about] 17 Jan 03.” At a pretrial motion hearing, Gaston testified regarding the termination of his absence: “I was notified by the dorm director that everyone was looking for me, and I immediately told him that I needed to get dressed and meet him in the front. And when I did that, he said he would call the Shirt to come down and pick me up, and they did so.”

Gaston’s statements at the providence inquiry regarding the unauthorized absence offense consist of the following:

I am guilty of this offense because on 13 January 2003, I remained absent from my unit, which was the 38th Reconnaissance Squadron. I was in my dorm room and just did not leave. I was not supposed to [406]*406be on the base on 13 January 2003; however, since I did not report to the location where I should have been, I knew that I had a duty to report to work that day and let my squadron know I was there — where I was. I did not have proper authority from anyone who could give me leave or permission to be absent from my squadron, and I remained absent in my room until 17 January 2003, when the dorm manager came to my room and told me that my squadron was looking for me. I am confident that my absence was terminated by apprehension because neither me, nor anyone working on my behalf, voluntarily told anyone where I was. I was found when the squadron came looking for me.

The day before the beginning date for the unauthorized absence offense, Gaston’s unit deployed to Saudi Arabia and his failure to move with his unit formed the basis for the missed movement charge.

The sentence imposed by the military judge included, in part, “forfeiture of two-thirds pay per month for six months; and a reduction to E-l.” When the convening authority acted on the sentence he was advised that Gaston had not been notified that his sentence could include a reduction. To remedy this error the convening authority approved all of the adjudged sentence except for the reduction to E-l. On review, the Court of Criminal Appeals noted that Rule for Courts-Martial (R.C.M.) 1003(b)(2) requires that a sentence which includes partial forfeitures must state the dollar amount to be forfeited each month, and that the military judge had erroneously referenced “forfeitures of two-thirds pay per month for six months.” To correct this error the lower court affirmed the sentence approved by the convening authority, but instead of “two-thirds pay” the court stated the forfeiture would be $1,053.00 per month, an amount equal to two-thirds pay at the E-4 rate.

DISCUSSION

1. Termination of Absence by Apprehension

This court will set aside a plea of guilty if it finds that there is “a substantial basis in law and fact for questioning the guilty plea.” United States v. Milton, 46 M.J. 317, 318 (C.A.A.F.1997) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)) (quotation marks omitted). Gaston contends that it was not established at his providence inquiry that his return to military control was involuntary and therefore there was no basis for finding that his absence was terminated by apprehension. The Government responds that Gaston’s return to military control was involuntary because it was not initiated by him and that on this basis the court can find his plea to absence terminated by apprehension was provident. This court has stated:

“[ajpprehension” contemplates termination of the accused’s absence in an involuntary manner; and “termination otherwise” is an absence ended “freely and voluntarily.” In other words, the Manual provision does not differentiate between these two classes of termination by means of particular situations, but rather by way of a broad definition for each category.

Fields, 32 C.M.R. at 196 (discussing United States v. Nickaboine, 3 C.M.A. 152, 11 C.M.R. 152 (1953)). Based on this differentiation, the military judge instructed Gaston, “Apprehension means that your return to military control was involuntary. It must be shown that neither you nor persons acting at your request initiated your return.”

The lower court noted that the providence inquiry in this case was “exceptionally brief and certainly not a model for how such an inquiry should be conducted.” Gaston, No. ACM S30372, slip op. at 1. Because of this, we will look to the entire record to determine whether facts to support Gaston’s guilty plea have been established. See United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F.2002) (“When this Court has addressed a bare bones providence inquiry, we have not ended our analysis at the edge of the providence inquiry but, rather, looked to the entire record to determine whether the dictates of Article 45, RCM 910, and [United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969) ] and its progeny have been met.”).

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Bluebook (online)
62 M.J. 404, 2006 CAAF LEXIS 250, 2006 WL 558540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gaston-armfor-2006.