Appellant, pursuant to his pleas of guilty, was convicted by special court-martial, judge alone, of three specifications of unauthorized absence, willful disobedience of a petty officer, violation of a lawful general regulation and larceny of $2,024.50 in violation of Articles 86, 91, 92 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 892, 921. The judge sentenced appellant to a bad conduct discharge, confinement for five months, forfеiture of $200.00 per month for five months and reduction to pay grade E-l. Thereafter, the convening authority mitigated the sentence in accordance with the terms of a pretrial agreement by suspending for six months the forfeitures and all confinement in excess of 60 days. The remainder of the sentence was approved as adjudged. Before this Court, appellant, through written brief and oral argument, challenges the providence of his guilty pleas, asserting in six assignments of error that matters inconsistent with guilt to each of the offenses were raised by the accused’s answers to questions from the judge during the plea providence inquiry mandated by United States v. Care,
Appellant, citing Article 45, Uniform Code of Military Justice, 10 U.S.C. § 845, United States v. Davenport,
When questioned by the judge about the first alleged absence, the accused responded that he failed to go at the time prescribed for morning quarters, arriving fifteen minutes late when he was not awakened after placing a wake up call. The judge did not pursue this matter any further. Applying the principles from United States v. Lee, supra, we find that appellant’s statement, without amplification and taken at face value, raises the possibility that failure to report on time was based on the accused’s reasonable reliance on being awakened as requested. His absence, thеrefore, may have been “without fault” under the terms set out in the discussion relating to Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 in Part IV, paragraph 10c(6), Manual for Courts-Martial, 1984. For that reason, and in the interest of judicial economy, as in United States v. Lee, supra, we will set aside the finding of guilty to specification 1 under Charge I and dismiss that offense.
In contrast to the handling of the accused’s answers concerning his failure to report for quarters on time, we note that the judgе did pursue in detail a possible defense to specification 2 of Charge I raised by the accused’s statement that his absence was caused by car trouble and lack of funds. The judge, through additional questions, established that the accused’s asserted car trouble could have been reasonably foreseen and that his failure to take the necessary precautions to ensure his return to Coast Guard Base, Maypоrt at the time required precluded a possible “without fault” defense. Accordingly, the plea of guilty to specification 2, Charge I is deemed to be provident.
The third absence offense was alleged to havе covered the period from “on or about 0930, 14 June 1988 [to] ... on or about 1530, 15 June 1988.” Specification 3 of Charge I from Charge Sheet, Record of Trial between pages 9 and 10. The accused again made statemеnts that were inconsistent in certain respects with the alleged offense. In this instance, his answers conflicted with a plea of guilty to the time the alleged absence commenced. The accused stated that at approximately 0900, 14 June 1988, he had received permission to go to sick call to refill a prescription and was there for that purpose from approximately 0935 to 1100. While that statement prevents approval of the absence as alleged, the accused readily acknowledged that at approximately 1100 he left sick bay and went to his girl friend’s house, without permission, remaining there until he returned to the bаse at 1530 the next day. Accordingly, as in United States v. Sprague,
The accused’s irreconcilable statements were not limited to the absence offenses. During the judge’s inquiry into the larceny allegation, the accused said he intended to return the money that was the subject of the larceny. This answer is incompatible with an essential element of that offense, the intent to permanently deprive the owner or another person of the use or benefit of the property. Despite the judge’s further questioning on this matter, the accused continued to adhere to the position that he intended to return thе money. Notwithstanding the accused’s statement in this regard, the judge accepted the plea and entered a finding of guilty to larceny, possibly because of the following explanation provided by defense сounsel:
*1011 DC: His [the accused’s] response is your honor, that .. that he intended to return the money, but that he finds and feels that there is sufficient evidence to support that he intended to permanently deprive Hamilton of his money.
Record of trial at 49.
Based on that comment, the judge questioned the accused further, as follows:
MJ: Is .. is that correct?
ACCUSED: Yes, your honor.
MJ: In viewing all the evidence then you think the evidence would be sufficient? ACCUSED: Yes, your honor.
MJ: To prove legally the intent to permanently deprive. Is that correct? ACCUSED: Yes, your honor.
Record of trial at 49.
Unfortunately, reliance on these assurances by the accused and counsel are, under the circumstances of this case, insufficient to support a guilty plea tо larceny. If the accused had said that he was unable to recall his intent, due to inebriation at the time — or memory loss for some other reason — the law would permit acceptance of a guilty plea, if the accused acknowledged that a review of the evidence had convinced him that he had the requisite intent. United States v. Penister,
In reaching this conclusion, we are mindful of the dilemma United States v. Penister, supra, undoubtedly posed for the trial judge in this case. In Penister, the Court of Military Appeals said that a military judge may not arbitrarily reject a guilty pleа and went on to find no inconsistency between the accused’s responses and his pleas of guilty which would justify rejection of the pleas. That holding, along with Judge Cox’s concurring opinion, could have led the judge here to conclude that a rejection of the plea would have been error after the accused acknowledged the efficacy of the evidence bearing on intent. The judge’s concern with not arbitrarily rejecting the accused’s guilty plea is certainly understandable in light of Penister, particularly after considering the expression in the concurring opinion that unequivocal admission by the accused of every offense element is not required. Upon unhurried reflection, however, a luxury indulged in by appellate courts that is rarely available to the trial judge, we note that the accused in United States v. Penister was unable specifically to recall certain acts, rather than affirmatively stating circumstances inconsistent with guilt. We believe the majority opinion and Judge Cox’s concurring views in that case must be read in the context of these facts, which are distinctly different from what occurred here. The finding of guilty to larceny cannot be affirmed. The accused’s pleas and answers fully support the lesser included offense of wrongful appropriation, however, which сontemplates an intent to temporarily deprive. Approval of that lesser offense is within our authority. United States v. Fernengel, 11 USC-MA 535,
The remainder of appellant’s assertions with respect to the other guilty pleas are rejeсted. In so doing, we note that, while the guilty plea inquiry with respect to the Article 91 offense of willful disobedience of a petty officer reflects that the accused ultimately completed the task ordered, it wаs equally clear that the accused was directed to commence the work immediately. By the accused’s own acknowledgment he did not comply as ordered, taking time to finish smoking his cigarette instead. For thаt reason, appellant’s argu
In light of the foregoing: the finding of guilty of specification 1 of Charge I is set aside and the specification is dismissed; only so much of the finding of guilty of specification 3 of Charge I as finds the accused did at 1100, 14 June 1988 absent himself without authority from his unit as alleged and did remain so absent until on or about 1530, 15 June 1988, is affirmed: only so much of the finding of guilty of the specification under Charge IV as finds the accused did at the time and under the circumstances alleged wrongfully apрropriate money of a value of about $2,024.50, the property of FN Daniel G. Hamilton, USCG, is affirmed; the remaining findings of guilty are affirmed. Applying the principles of United States v. Sales,