9 C.M.A. 121 | United States Court of Military Appeals | 1958
Opinion of the Court
The Judge Advocate General of the Navy, pursuant to Article 67 (b) (2), Uniform Code of Military Justice, 10 USC § 867, has certified the following issue to this Court for its consideration:
“Was the Board of Review correct in holding that the charges of missing movement through design and unauthorized absence were multipli-cious for purposes of sentence, thus requiring an instruction to this effect on the maximum sentence?”
A brief statement of facts is necessary to place the certified issue in its proper setting.
On or about 7:15 a.m. on the morning of June 24, 1957, the accused absented himself without authority from his ship, the U.S.S. ALGOL which was located at San Diego, California, and remained absent until approximately 12:45 p.m., June 27, 1957, a period in excess of three days. As a result of this absence, he missed the movement of his ship, which occurred on or about 10:30 a.m. on the morning of June 24, 1957. A special court-martial subsequently convened on board the U.S.S. ALGOL found the accused guilty in conformity with his plea of being absent without leave and missing movement through design,, in violation of Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for three months, and partial forfeiture of pay for a like period. The convening authority approved the sentence, but suspended the execution of the punitive discharge until the accused’s release from confinement or until completion of appellate review, whichever occurred later.
Placing great" reliance upon our decision in United States v Posnick, 8 USCMA 201, 24 CMR 11, the board held that since the offense of missing movement occurred during the period of unauthorized absence, the offenses were multiplicious for the purpose of sentence. Accordingly, it concluded that it was error for the president to fail to instruct on the effect of multiplicity on the court-martial’s consideration of the sentence. The board thereupon independently reassessed the sentence. We believe that the action of the board of review was correct in all respects.
We are met at the outset by the argument that our holding in Posnick, supra, was predicated solely upon the factual setting which existed in that case. There, the accused was charged with absence without leave and missing
“. . . It [missing movement] really is an aggravated form of absence without leave, but the type of absence without leave which is specifically connected with the circumstance of missing a ship or a unit when it is about to move.
“Now, the experience of World War II was such that in a large number of eases persons who were either legitimately on leave or those who were not or who left without authority, did so just about the time that their ship was to sail or their unit was to move.
“It is considerably more serious for a man to be absent at that time than to be absent under other circumstances.
“It was felt that it is desirable and necessary to spell out those circumstances and facts in a specific article.
“I would expect that the maximum sentence for this type of absence without leave would be heavier than an absence without leave that takes place in different circumstances.” [Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1258.] [Emphasis supplied.]
It seems clear from this testimony that the offense of missing movement was considered primarily an aggravated form of absence without leave which warranted the imposition of a greater punishment than other varieties of unauthorized absence.
In Posnick, supra, we were only presented with the factual situation where an accused was charged with absence without leave and missing movement through neglect. In holding that these offenses were multiplicious for the purpose of sentence, we said:
“Logically every missing movement offense includes an unauthorized absence plus other factors. These additional factors are circumstances that aggravate the offense of unauthorized absence. In these cases the unit, ship, or aircraft, is moving and the accused has knowledge of this movement. The offense can be further aggravated by the subjective cause of the accused’s absence — neglect or design. The fact that the absences are alleged in terms of a different span of time is not important if the absence alleged is one unit.”3
The certified issue is answered in the affirmative and the decision of the board of review is affirmed.
See also the statement of Professor Morgan before the Senate Committee on Armed Services, 81st Congress, 1st Session, on S. 857 and H.R. 4080, page 87.
Cf. Table of Maximum Punishments for the maximum sentences imposable for the offense of absence without leave depending upon the duration of the absence.
The Government in its brief takes issue with the broad generalization
Concededly, the Government’s hypothetical example is outside the orbit of the language found in Posnick, supra. However, we are unable to see where such concession can be of any comfort to the Government. In the Posnick case, as well as the related cases of United States v Underwood, 8 USCMA 338, 24 CMR 148; United States v Henley, 8 USCMA 340, 24 CMR 150, and in the present case, we were faced with factual situations where the accused was charged with the two offenses of unauthorized absence and missing movement. In the considered analysis of these specific cases, as distinguished from the hypothetical one, the generalization that every missing movement offense “logically” includes the offense of absence without leave is correct.