United States v. Lee

14 M.J. 633, 1982 CMR LEXIS 1025

• Court: U.S. Army Court of Military Review
• Decided: April 8, 1982
• Docket: SPCM 16346
• Status: Published

Opinions

OPINION OF THE COURT

JONES, Senior Judge:

The appellant maintains he raised a valid defense to absence without leave, thus making his plea of guilty improvident, when he testified in extenuation and mitigation that his car broke down as he left home for work and he couldn’t report to his unit for almost two days.¹ We disagree and we affirm.

Notwithstanding the plain language of Article 86, Uniform Code of Military Justice,² absence without leave is not an offense of absolute liability. A defense of impossibility has been recognized, both in the case law and in the Manual for Courts-Martial. That defense is not new, as is shown by the following quote from Colonel W. Winthrop’s Military Law and Precedents, 1920 Reprint:

DEFENCE. It will be a good defence that the party, while absent on pass or furlough, was prevented from returning at the proper time by sickness or other disability, but to establish this excuse medical testimony will generally be required. That the accused was involuntarily detained by the force of the elements, the action of the civil authority, the operations of the enemy, or by being taken prisoner by the latter, may also constitute a valid defence; but where he has once deliberately absented himself without authority, the fact that he was detained away longer than he had intended by some agency beyond his control, will be no sufficient answer to the accusation. Winthrop at 608.

The current edition of the Manual includes the rule in paragraph 165, couched in terms of a member’s absence “through no fault of his own.” It continues the crucial distinction expressed by Colonel Winthrop between an impossibility arising while a member is in an authorized leave or pass status (a defense) and one arising after a member is in an unauthorized absence status (no defense).

The defense of impossibility immediately brings to mind illness or injury (United States v. Amie, 7 U.S.C.M.A. 514, 22 C.M.R. 304 (1957)), natural disasters, and the intervention of third parties (United States v. Calpito, 18 U.S.C.M.A. 450, 40 C.M.R. 162 (1969)), but even in those situations the defense may not be available if the illness or injury was self-induced (United States v. Irving, 2 M.J. 967 (A.C.M.R. 1976), pet. denied, 2 M.J. 197 (CMA 1977)), the natural disaster or occurrence foreseeable, or the intervention by third parties caused by the absentee’s fault (United States v. Myhre, 9 U.S.C.M.A. 32, 25 C.M.R. 294 (1958)). Additionally, although the defense may be available initially it can be defeated by an absentee’s lack of efforts to overcome the disability. United States v. Bermudez, 47 C.M.R. 68 (A.F.C.M.R.1973).

This Court has been wary of the defense of impossibility in those situations where the inability to return arose from something as commonplace as ear trouble. In the cases of United States v. Scott, 9 C.M.R. 241 (A.B.R.1952) and United States v. Kessinger, 9 C.M.R. 261 (A.B.R.1952), the Court determined that the defense was not even raised by the evidence, apparently because the service members did not proceed immediately to their units after the transportation problems occurred.

In the instant case the appellant testified in extenuation and mitigation as follows:

DC: Now you’ve already plead guilty to being gone at 0400 hours on the 26th of January, until approximately 2015 hours on the 27th of January. Can you explain to the Judge what circumstances were behind your absence in that case?

ACC: Sir, on that particular date, at the time I owned a 1969 Chrysler New Yorker, I went out to get ready to come to work on the prescribed date and I had mechanical problems with my automobile. I called into base and they told me to get to base the best way I could, and I tried my best to make some kind of arrangements to come to base but I could not get a hold of anybody to where I could get transportation to the base, sir.

DC: Okay. And so you had difficulty obtaining a ride in or whatever? How did you finally get in?

ACC: The landlord that I had down there, sir, I got a hold of him late that evening and he brought me up to base, sir.

The appellant contends that this testimony raised the defense of physical impossibility, thereby requiring the judge to reopen the guilty plea inquiry, explain the defense, and clarify the apparent inconsistency. We disagree. This case is similar to Kessinger. This appellant dallied even longer in returning than did Lt. Kessinger. When a serviceman takes that long to get to work from his off-post residence after experiencing car trouble, either he lives an unreasonable distance away or he made no legitimate effort to get substitute transportation. In either event, he is at fault. Therefore, the defense was not raised and no further inquiry was required.

The findings of guilty and the sentence are affirmed. However, the application of the forfeitures is deferred until the sentence is ordered into execution.³

Judge HANFT concurs.

1 . The appellant was convicted, in accordance with his pleas of guilty, of 46 day and 40 hour absences without leave in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. We are concerned only with the 40 hour absence.

2 . Article 86. Absence without leave.

Any member of the armed forces who, without authority—

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct.

3 . The convening authority applied the forfeitures to pay becoming due on and after the date of his action, but that was error because no confinement was adjudged.