United States v. Swanholm

36 M.J. 743, 1992 CMR LEXIS 869, 1992 WL 394862
CourtU.S. Army Court of Military Review
DecidedDecember 28, 1992
DocketACMR 9102334
StatusPublished
Cited by5 cases

This text of 36 M.J. 743 (United States v. Swanholm) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Swanholm, 36 M.J. 743, 1992 CMR LEXIS 869, 1992 WL 394862 (usarmymilrev 1992).

Opinion

OPINION OF THE COURT

WERNER, Judge:

In accordance with her pleas, the appellant was found guilty of desertion with intent to shirk important service and missing movement in violation of Articles 85 and 87, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 887 (1982). A general [744]*744court-martial composed of members sentenced her to a dishonorable discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to Private El. In accordance with the terms of a pretrial agreement, the convening authority disapproved six months of the confinement but approved the remainder of the sentence as adjudged.

The appellant, a medic, was a member of the 5501st Army Hospital, a unit of the United States Army Reserve based at Port Snelling, Minnesota. On 25 January 1991, pursuant to the authority of 10 U.S.C. § 673, the 5501st was mobilized and ordered to active duty with the Health Services Command for a period of twelve months. In accordance with the mobilization plan, the 5501st was ordered to report to Brooke Army Medical Center, Fort Sam Houston, Texas, effective 1 February 1991, where it would replace active duty soldiers who were stationed at Fort Sam Houston but were being deployed to Saudi Arabia in support of the combat forces of Operation Desert Storm. It was anticipated that the 5501st would be treating casualties from Operation Desert Storm and that the appellant’s duties would include assisting in that treatment.

The appellant was ordered to active duty by name in an annex to the mobilization order. On 29 January, First Lieutenant (1LT) Carlson telephonically ordered the appellant to report to her unit at Fort Snelling on 5 February. Simultaneously, 1LT Carlson informed her of administrative information essential to facilitate her transition to active duty. The appellant acknowledged understanding the order but nevertheless informed the lieutenant that she would not report, stating that she intended to apply for an administrative discharge as a conscientious objector. The appellant failed to report to Fort Snelling as ordered and the unit moved to Fort Sam Houston during the latter part of February 1991.

On 1 April, the appellant called a recruiting sergeant in St. Paul, Minnesota and informed him that she wished to return to military control. The sergeant referred the matter to the appellant’s unit which had moved to Fort Sam Houston. In telephone discussions with officials in her unit, the appellant informed them of her desire to terminate her absence. However, she said she would return on the condition that she be permitted to remain in Minnesota where she would submit an application for conscientious objector status. On 7 May, the appellant was asked by military police authorities in Minnesota to turn herself in at Fort Snelling so she could be transported to Fort Sam Houston. The appellant returned to military control on 8 May.

I.

The appellant contends that her pleas of guilty to desertion with intent to avoid important service are improvident on grounds of factual insufficiency as the duty appellant allegedly avoided was not “important service.” See United States v. Chambers, 12 M.J. 443 (C.M.A.1982). We disagree. The specification alleges that the appellant intended to shirk important service, “namely: service as a medic at Fort Sam Houston in support of Operation Desert Storm.” The Manual for Courts-Martial, United States, 1984, Part IV, para. 9c(2)(a) defines important service as follow:

“Hazardous duty” or “important service” may include service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened invasion or other disturbances; strike or riot duty; or employment in aid of the civil power, in, for example, protecting property, or quelling or preventing disorder in times of great public disaster. Such services as drill, target practice maneuvers, and practice marches are not ordinarily “hazardous duty or important service.” Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the court-martial to decide. (emphasis added)

Initially, we observe that as the appellant pleaded guilty, the government is [745]*745not required to prove that appellant’s prospective medical duties at Fort Sam Houston were, in fact, important service but only that those duties could reasonably constitute “important service.” See United States v. Norvell, 26 M.J. 477, 480 (C.M.A.1988); United States v. Hocker, 32 M.J. 594 (A.C.M.R.1991).

There can be little doubt of the importance of the appellant’s service under the circumstances herein. Deployment of any unit or individual during wartime carries with it the inference that the mission of that unit or individual is important in the war effort. This is especially true when a reserve unit or reservist is ordered or called to active duty during war or national emergency.1 By law, mobilization is initiated at the highest levels of government when the President determines that world or national events warrant such action and orders that it be carried into effect. The statute authorizing the President to mobilize the Reserves provides in relevant part:

In time of national emergency declared by the President after January 1, 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty (other than for training) for not more than 24 consecutive months.

10 U.S.C. § 673(a). Furthermore, Executive Order No. 12743, dated January 18, 1991, implemented the statute for the purpose of responding to “the continuing threat posed by Iraq’s invasion of Kuwait.” See also, Executive Order No. 12722, dated August 2, 1990 (declaring a national emergency to address the threat to the national security and foreign policy of the United States posed by the invasion of Kuwait by Iraq.).

The fact that the appellant’s unit was mobilized and ordered to redeploy in order to meet a threat from a foreign enemy is, by itself, sufficient to support the military judge’s finding that appellant’s service was important. Nevertheless, assuming arguendo, that additional justification is required, the unique facts of this ease furnish it. The medical mission of the appellant’s unit and appellant’s duties as a medic are essential facets of combat support. Appellant argues that since the appellant’s unit was not assigned overseas, the unit’s combat support role and her service were insignificant to the war effort. However, this argument ignores the fact that the appellant’s unit replaced a stateside unit which was then deployed overseas in direct support of combat troops. We find this to be strong evidence that appellant’s unit was performing important service.

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Cite This Page — Counsel Stack

Bluebook (online)
36 M.J. 743, 1992 CMR LEXIS 869, 1992 WL 394862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-swanholm-usarmymilrev-1992.