UNITED
STATES, Appellee
v.
No.
03-0208
Crim.
App. No. S30117
Argued
Decided
BAKER, J., delivered the opinion of the
Court, in which CRAWFORD, C.J.,
GIERKE, EFFRON, and ERDMANN JJ., joined.
Counsel
For Appellant: Captain L. Martin Powell (argued); Colonel
Beverly B. Knott (on brief); and Major Terry L. McElyea.
For Appellee: Captain Michelle M. Lindo
(argued); Colonel LeEllen Coacher,
Major
John D. Douglas and Major James K. Floyd (on brief); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Lance B. Sigmon.
Military Judge:
Kurt D. Schuman
THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Judge
BAKER delivered the opinion of
the Court:
Pursuant
to his pleas, Appellant was
convicted by a special court-martial, military judge alone, of one
specification of unauthorized absence and one specification of failure
to go in
violation of Article 86, Uniform Code of Military Justice [hereinafter
UCMJ],
10 U.S.C. § 886 (2000). The adjudged
sentence provided for a bad-conduct discharge, confinement for four
months, and
reduction to pay grade E-1. In
accordance with a pretrial agreement, the convening authority approved
confinement for two months, but otherwise approved the sentence as
adjudged. The United States Air Force
Court of Criminal Appeals affirmed the findings and sentence in an
unpublished
opinion. This Court granted review to
determine:
WHETHER
APPELLANT’S GUILTY PLEA TO SPECIFICATION 1 OF THE CHARGE IS IMPROVIDENT
BECAUSE
THE MILITARY JUDGE FAILED TO ELICIT FACTS FROM APPELLANT TO SUPPPORT
THAT HIS
ABSENCE FROM HIS UNIT WAS WITHOUT PROPER AUTHORITY.
Appellant
was charged with absenting himself without authority from his unit on
or about
matters inconsistent with a plea
of guilty to an unauthorized absence on November 1.
As a result, we are left with a substantial
basis in law and fact to question the plea and we reverse as to
Specification 1
of the Charge.
FACTS
Appellant
reported to Tinker Air Force Base,
The
stipulation of fact also states that “[i]f
called to testify, SSgt Andrew would say he instructed
the accused to report to ‘A’ flight, day shift on
I was
supposed to report to duty -- I left
training and I was supposed to receive a phone call. I never received
the phone
call, so I never reported to duty. Around December 14th, as the
document
states, I was apprehended at my home and brought down to the LE station; but, I
was waiting for the
phone call so that’s why I never came to duty. During the time that I
left
training, a couple of days after, I never received the phone call. I
know the
phone call was supposed to come, but I never — I didn’t call back; I
was
waiting to see if they were going to call back. And, days went into
weeks, and
weeks into that month and I never went in to work.
Upon further
questioning, Appellant insisted that he was not given a specific date
and time
to report for duty:
MJ: . . . Now, do you
recall Staff Sergeant Andrew instructing
you to report to “A” Flight day shift on 1 November of 2001?
ACC: I
recall him saying that he
would give me a call. The date, exactly, I don’t recall him saying.
. . . .
MJ:
Okay. So, as of the 29th -- now,
what the stipulation says is that if Staff Sergeant Andrew were to
testify,
that he would testify that he did tell you to report to “A” Flight day
shift on
1 November of 2001. Do you agree with that? That, in fact, that’s what
he would
say?
ACC:
Yes, I agree that’s what he
would say is the truth.
MJ:
Okay, but you have -- did you
know that you were going to be assigned to “A” Flight?
ACC:
Yes, sir, he told me “A”
Flight.
MJ:
Okay, so there’s no question in
your mind that you were assigned to “A” Flight?
ACC:
Right.
MJ:
Okay. Now, if he says you were
supposed to report on 1 November — okay, that’s what he would testify
to,
right? Now you don’t recall him necessarily saying that?
ACC:
No, sir.
MJ:
And, you expected a phone call?
ACC:
Yes, sir.
Appellant
acknowledged that he had no
accrued leave and that he should have called his unit, especially
because
“everybody was pretty busy” and “working long hard hours” in the month
following
MJ:
Now, after a couple of days, you
should have known that somebody missed something. Now, this is assuming
that no
one told you to report on the 1st of November, right?
ACC:
Right.
MJ:
Now, if you were waiting for the
phone call and it didn’t come for a few days, you should have called
in, right?
ACC:
Yes, sir.
. . . .
MJ:
And, it became even more obvious
after two and three and four and five weeks had passed?
ACC:
Yes, sir.
MJ: So,
what I’m getting at here is
maybe there was a misunderstanding early on during this charged time
period;
but as time passed, you knew better. You knew you should be getting
back to
your unit.
ACC:
Yes, sir.
. . . .
MJ: So,
do you agree that, on or
about
ACC:
Yes, sir.
MJ:
And, that your absence was
without proper authority from someone who could give you leave?
ACC:
Yes, sir.
Based on this
colloquy and Appellant’s stipulation of fact, the military judge
accepted
Appellant’s plea of guilty to an unauthorized absence on or about
November 1
and ending with his apprehension on December 14, a period of 43 days.
In
summary, Appellant persistently asserted that he was waiting for a
telephone
call to inform him when he was to report for duty. Appellant also
explained
that the person he expected to call him, SSgt Andrew, had previously
authorized
his absences.
On
appeal, Appellant argues that his statements during the providence
inquiry
regarding the time and place at which he was required to report for
duty were
inconsistent with his plea to unauthorized absence on or about November
1.
The
Government responds that Appellant admitted to all the elements of the
offense
before the military judge, therefore, there is no substantial basis on
which to
question the plea.
DISCUSSION
A
court shall not accept a plea of guilty where “an accused . . . sets up
matter
inconsistent with the plea, or if it appears that he has entered the
plea of
guilty improvidently . . . .” Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000). Nor shall a court 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). See
A guilty plea
will be rejected only where the
record of trial shows a substantial basis in law and fact for
questioning the
plea.
A
service member commits the offense of unauthorized absence, Article 86,
when it
is shown:
(a) That
the accused absented himself or herself from his or her unit . . . 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.2
A definitive
inception date is indispensable to a successful prosecution for
unauthorized
absence.
In
Appellant’s case, the providence
inquiry revealed an inconsistency between the stipulation of fact and
Appellant’s statements during the plea inquiry.
Although there may have come a point between November 1 and
December 14
when Appellant was absent without authority, the record does not fix a
date of
inception. The judge made several
comments reflecting his understanding of Appellant’s belief that he
would
receive a telephone call including the following: “maybe there was a
misunderstanding early on during this charged time period,” and “you
may feel
that you have some justification for a few days here.”
But the providence inquiry does not
ultimately reveal the date on which Appellant was willing to admit he
absented
himself without authority.
On the
one hand, when asked directly
by the military judge whether he agreed that he absented himself
without proper
authority on November 1, Appellant responded “Yes, Sir.”
On the other hand, Appellant indicated repeatedly
that he was waiting for a telephone call and that it only became
obvious over a
matter of weeks that he should have called.
The military judge’s colloquy with Appellant did not resolve
this
inconsistency or otherwise establish that Appellant lacked authority to
remain
away from his unit on or about November 1.
Rather than focusing on a precise date for the inception of the
Appellant’s unauthorized absence, the military judge confirmed only
that “it
became more obvious after two and three and four and five weeks had
passed”
that Appellant “knew better” and should have contacted or returned to
his unit.
As noted
above, Article 86 authorizes
increased punishments depending on the duration of the unauthorized
absence,
and it is only for an absence greater than 30 days that an accused
becomes
eligible for punitive discharge. Thus,
for this particular offense, Appellant was only exposed to a punitive
discharge
if the date of inception was more than 30 days before December 14, or
on
November 13.3
Finally,
the Government argues that it
is implausible for someone of Appellant’s grade and experience to
believe he
was authorized to remain away from his unit until telephoned. While this is certainly a valid consideration
in a contested case, in order to plead guilty, Appellantmust
admit to a date that is in fact “on or about” November 1.
Here, for whatever reasons, Appellant refused
to do so. A guilty plea must be an admission to all the elements of a
formal
criminal charge. Care, 18 C.M.A. at 539, 40 C.M.R. at 251.
Because the record does not support the legal
determination that Appellant conceded that his absence was without
authority on
the charged date, there is a substantial basis in law and fact to
question his
plea.
CONCLUSION
The
decision of the United States Air Force Court of Criminal Appeals is
reversed
as to Specification 1 of the Charge. The
finding of guilty to Specification 1 and the sentence are set aside. The record of trial is returned to the Judge
Advocate General of the Air Force. A
rehearing
is authorized.
1 Appellant
has not challenged the providence of his guilty plea to Specification 2
alleging an unrelated failure to go.
2 In this case an
additional element was termination by apprehension.
3 We are cognizant
of the fact that in this case, neither an absence of 30 days or less
nor the
accompanying failure to go offense would authorize a punitive
separation
individually. However, under the
escalator clause of Rule for Courts-Martial 1003(d)(3),
the combined maximum authorized punishment includes confinement for
seven
months, theoretically exposing Appellant to a punitive discharge.