United States v. Merritt

18 M.J. 618, 1984 CMR LEXIS 4143

• Court: U S Air Force Court of Military Review
• Decided: June 15, 1984
• Docket: ACM 24287
• Status: Published

Opinions

DECISION

PER CURIAM:

The accused contends that the prosecution substantially amended an absence specification to reflect a new and more serious offense, requiring such specification to be resworn.

The original specification reflected a six-month absence without leave from June to December 1980. When the accused failed to return to military control by December 1980 the charge was preferred and sworn to in that month. The accused did not in fact return until August 1983; the charge sheet was then amended by a pen-and-ink change to reflect the three year absence. Testimony at trial revealed that it was an administrative error to place the December 1980 date on the charge sheet as the closing date of the absence. See MCM, 1969 (Rev.) paras. 336, 68c, and 215d; however, the military judge denied the defense motion to dismiss.

We find that the military judge was correct in his ruling: the modification made to the charge sheet neither aggravated the seriousness of the offense nor subjected the accused to greater punishment. United States v. Dyer, 5 M.J. 643 (A.F.C.M.R.1978); see also United States v. Arbic, 16 U.S.C.M.A. 292, 36 C.M.R. 448 (1966); United States v. Krutsinger, 15 U.S.C. M.A. 235, 35 C.M.R. 207 (1965). It cannot be disputed that increasing the duration to show a six month absence without leave vice a three-year absence facially made the offense appear more serious, even though the maximum imposable punishment was not thereby increased. Nevertheless, our earlier opinion in Dyer makes it clear that there is no prejudice to the substantial rights of the accused in such a situation. United States v. Dyer, supra, at 645. See also United States v. Arbic, supra, at 450.

The findings of guilty and sentence are

AFFIRMED.