Opinion of the Court
Thе accused was tried and convicted by special court-martial of being absent from his unit — the USS LLOYD THOMAS — without proper authority for about a week, and of missing the movement of his unit through neglect during the same week, in violаtion of Articles 86 and 87, 10 USC §§ 886 and 887, respectively. He was sentenced to be confined at hard labor for six months, to forfeit a portion of his pay for a
The question before us is whether a charge of unauthorized absence and a charge of missing movement during the periоd of alleged unauthorized absence are multiplicious. We think that they are.
I
Article 86, supra — where pertinent —states that:
“Any member of the armed forces who, without proper authority—
(3) . absents himself or remains absent from his unit . . .
shall be punished as a court-martial may direct.”
Article 87, supra — where pertinent— states that:
“Any person subject to this chapter who through neglect . . . misses the mоvement of a ship . . . with which he is required in the course of duty to move shall be punished as a court-martial may direct.”
As it is true that a rose by any other name would smell as sweet, so it is equally true that a man may be punished only once for the same offense regardless of how that offense is labeled. In dealing with the question of multiplicity, we must keep the various facets of the problem clearly defined. For example, the Manual for Courts-Martial, United States, 1951, at paragraph 76a(8) states, and we agree, that an accused may not be punished for both a principal offense and for an offense included therein. The Manual goes further and explains its reasoning by pointing out that this is true because in proving the included offense, it is not necessary to prove any element not requisite to the proof of the greater offense. The basic reason for this is that when dealing with the question of multiplicity of offenses — examining two charges to see if they are separate offenses to determine maximum authorized punishment — lesser inсluded offenses are by definition not separate offenses.
To be separate offenses each offense must require proof that is not required to prove the other. This does not occur, as we have pointed out above, when the offense is lesser included in the offеnse with which it is being compared. To state it another way, if the evidence sufficient to support a conviction on one charge will support a conviction on another charge, the two chаrges are not separate. United States v Yarborough,
Logically every missing movement offensе 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, оr 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 thаt the absences are alleged in terms of a different span of time is not im
We discussed the offense of missing ship in detail in the case of United States v Thompson,
“We may notе at the outset that missing ship through neglect is an offense newly created by the Uniform Code of Military Justice. Under prior Navy law, ‘missing movement’ required a positive intent to avoid particular shipboard service, and was charged as a violation of Article 22 of the Articles for the Government of the Navy, 34 USC § 1200, as conduct to the prejudice of good order and discipline. See CMO 3, 1916, page 7; CMO 141, 1918, page 16; CMO 4, 1935, page 6. Where the specific intent to avoid scheduled movement was not present, the fact of missing ship was alleged as a matter in aggravation to a charge' of unauthorized absence. Naval Courts and Boаrds, 1937, Section 98, Footnote 33. There was no such offense as missing movement through neglect. The Army, under the Articles of War, recognized the offense of ‘absenting himself with the intent to avoid maneuvers,’ under Article 61,10 USC § 1533. Manual for Courts-Martial, US Army, 1949, paragraph 149. Mr. Felix Larkin, in testifying before the House subcommittee on Article 87 of the Uniform Code of Military Justice, 50 USC §-681, said: ‘Now, I say that is new, Mr. Chairman. It 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.’ Hearings before House Committee on Armed Servicеs, 81st Congress, 1st Session, on HR 2498, at page 1258.”
In that case we did not consider the question of multiplicity and our holding was simply that the Government need not prove a causation beyond the duty to move with the unit, that the movеment was substantial, that the accused knew of the prospective movement, and that he was absent without authority when the ship actually sailed. We did, however, indicate our present holding in our detailed analysis of the offense. In United Stаtes v Johnson,
II
It is settled that the legal fact of multiplicity of charges jg only significant in consideration of maximum authorized punishment. United States v
In the instant case the president of the court-martial closed the court after hearing evidence in mitigation and extenuation withоut instructing in open court on the effect of multiplicity on the court-martial’s consideration of the sentence. This was error.
Ill
The only remaining question is that of prejudice. It is arguable that no prejudice obtained here because the accused was tried by special court-martial whose jurisdiction extended only to imposition of a bad-conduct discharge, six months’ confinement at hard labor and forfеitures for a like period. Article 19, Uniform Code of Military Justice, 10 USC § 819. The total punishment that could be given this accused on a basis of both charges alleged, if tried by general court-martial, was in excess of the statutory limitation of a speсial court-martial. But if the correct instructions on effect of multiplicious charges were given to this hypothecated general court-martial — the punishment applicable only to missing movement through neglect — it would have been limited to a bad-conduct discharge, confinement at hard labor for six months, and forfeitures for a like period. See Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, supra, as amended by paragraphs 2 and 3 of Executive Order No. 10565, of September 28, 1954. This is coincidentally the maximum punishment imposable, by jurisdictional limitation, by a special court-martial.
We think that the prejudiсe in the error goes deeper than merely affecting the maximum amount of punishment. This is only the reflection of the prejudice. The prejudice is that the accused has not had a determination of his sentence on the basis of the single offense he has committed. When this offense is made to appear more numerous than it actually is, by semantical manipulation, the jury must consider only the offense committed by him. Thus, in cases of multiplicity, the law officer, or the president of a special court-martial, must instruct in open court that the maximum sentence imposable is different than the apparent total imрosable because of the effect of multiplicity on sentence consideration. This was not done in the instant case and therefore we have no way of knowing what sentence the court might, have imposed had they been advised that for the purpose of punishment they could only consider the greater offense. Prejudice is therefore present.
The decision of the board of review is reversed. A rehearing on the sentence is directed.