United States v. Rogers

59 M.J. 584, 2003 WL 22238693
CourtArmy Court of Criminal Appeals
DecidedSeptember 30, 2003
DocketARMY 20020156
StatusPublished
Cited by6 cases

This text of 59 M.J. 584 (United States v. Rogers) is published on Counsel Stack Legal Research, covering Army Court of Criminal 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. Rogers, 59 M.J. 584, 2003 WL 22238693 (acca 2003).

Opinion

OPINION OF THE COURT

SCHENCK, Judge:

A military judge sitting as a general court-martial found appellant guilty, pursuant to her pleas, of desertion, absence 'without leave (AWOL) (three specifications), larceny (seven specifications), and forgery (eight specifications) in violation of Articles 85, 86, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 885, 886, 921, and 923 [hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances, a $3,500 fine, and reduction to Private (PVT) El. Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provides for a dishonorable discharge, confinement for twenty months, a $3,500 fine, and reduction to Private El.

Appellant’s case was submitted to this court on its merits for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. An issue regarding voluntary termination of unauthorized absence merits discussion, but no relief.

FACTS

Appellant pleaded guilty to and was found guilty of three specifications of AWOL from her unit for the following time frames: from on or about 19 June 2001 until on or about 3 July 2001 (when she returned to her company); from on or about 18 October 2001 until on or about 23 October 2001 (when she returned to military control at Fort Hood); and from on or about 31 October 2001 until on or about 4 December 2001 (when she was apprehended in Killeen, Texas, and placed in pretrial confinement). The stipulation of fact, agreed to by all parties and admitted into evidence without objection, states that appellant did not have leave or prior approval for any of these absences.

During the providence inquiry, appellant told the military judge that she “kept absenting” herself from her unit because she “wanted out of the Army.” During her absences, appellant remained in the Fort Hood and Killeen, Texas, area. She also stated, “I was sometimes ... on post.” After this disclosure to the military judge, the following colloquy ensued:

MJ: All right, but were you under the control of your unit when you were on post?
ACC: I went to my unit and I saw like some of my NCOs [noncommissioned officers] and they knew I was AWOL, but they never said anything.
MJ: Mm, huh.
ACC: But I never turned myself [in to] my unit.

LAW AND DISCUSSION

This court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F.1996). We use a “substantial basis test for appellate review of the providence of guilty pleas.” United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002) (emphasis in original). We will not overturn a guilty plea unless the record of trial shows a substantial basis in law and fact for questioning the guilty plea. United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991). In determining the providence of an appellant’s pleas, “ ‘it is uncontroverted that an appellate court must consider the entire record in a ease.’ ” United States v. Falk, 50 M.J. 385, 389 (C.A.A.F.1999) (quoting United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F.1995)).

“The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea.” Rule for Courts-Martial [hereinafter R.C.M.] 910(e). The facts disclosed by such inquiry must objectively support the guilty plea. United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F.1996). Should the accused set up a matter inconsistent with the plea at any time [586]*586during the proceeding, the military judge either must resolve the inconsistency or reject the guilty plea. Id. at 498; see also United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980); United States v. Timmins, 21 U.S.C.M.A. 475, 479, 45 C.M.R. 249, 253, 1972 WL 14168 (1972); UCMJ art. 45(a), 10 U.S.C. § 845(a).

Article 86(3), UCMJ, provides, “Any member of the armed forces who, without authority ... absents himself [or herself] or remains absent from his [or her] unit, organization, or place of duty at which he [or she] is required to be at the time prescribed; shall be punished as a court-martial may direct.” The elements of this AWOL offense are:

(a) That the accused absented himself or herself from his or her unit, organization, or place of duty at which he or she was required to be;
(b) That the absence was without authority from anyone competent to give him or her leave; and
(c) That the absence was for a certain' period of time.

Manual for Courts-Martial, United States (2000 ed.) [hereinafter MCM, 2000], Part IV, para. 10b(3). Termination by apprehension, as an aggravating factor, must also be proven beyond a reasonable doubt. Id.

The MCM describes termination of an AWOL through surrender to military authorities, as follows:

A surrender occurs when a person presents himself or herself to any military authority, whether or not a member of the same armed force, notifies that authority of his or her unauthorized absence status, and submits or demonstrates a willingness to submit to military control. Such a surrender terminates the unauthorized absence.

Id. at Part IV, para. 10c(10)(a) (emphasis added).

Courts have also considered various circumstances in which an AWOL service member is considered to have “voluntarily terminated” his or her absence. As early as 1952, our superior court noted that casual presence at a military installation does not, without more, terminate an unauthorized absence. See United States v. Jackson, 1 U.S.C.M.A. 190, 192, 2 C.M.R. 96, 98, 1952 WL 1700 (1952). The Jackson court found that an absentee’s presence at his summary court-martial did not terminate his AWOL because the summary court-martial was not aware of the absentee’s AWOL status. Id. at 192-93, 2 C.M.R. at 98-99. The court remarked that only the exercise of proper military control over an absentee effects an AWOL’s termination. Id. at 192, 2 C.M.R. at 98; see also United States v. Raymo, 1 M.J. 31, 32 (C.M.A.1975) (finding where an Army officer failed to apprehend an absentee who divulged his status, the officer nonetheless “effectively exercised military control” over the absentee by directing him to the Federal Bureau of Investigation).

In United States v. Coglin, 10 M.J. 670, 672-73 (A.C.M.R.1981), this court described and explained the relevant factors necessary for an absentee to voluntarily terminate an unauthorized absence.

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59 M.J. 584, 2003 WL 22238693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rogers-acca-2003.