2006
(an Article 86,
UCMJ, violation for failure to
go to an appointed place of duty requires proof of the following
elements: (1)
that a certain authority appointed a certain time and place of duty for
the
accused; (2) that the accused knew of that time and place; and (3) that
the
accused, without authority, failed to go to the appointed place of duty
at the
time prescribed; failure to go offenses require proof that the accused
actually
knew of the appointed time and place of duty; actual knowledge may be
proved by
circumstantial evidence).
(in cases where
knowledge is an essential
element, specific knowledge is not always necessary; rather, purposeful
ignorance may suffice; for the government to raise deliberate
ignorance, it
must show some evidence from which it may be inferred that the accused
was
subjectively aware of a high probability of the existence of illegal
conduct
and that the accused purposefully contrived to avoid learning of the
illegal
conduct).
(knowledge may
be inferred from evidence of
deliberate avoidance in all Article 86, UCMJ, offenses; this knowledge
requirement may be satisfied where evidence establishes that the
accused was
subjectively aware of a high probability of the existence of illegal
conduct,
and purposely contrived to avoid learning of the illegal conduct; in
the
context of a contested trial, the evidence must allow a rational juror
to
conclude beyond a reasonable doubt that the accused was aware of a high
probability of the fact in dispute and consciously avoided confirming
that
fact; in the context of a guilty plea, the military judge must be
satisfied
that there is a factual basis that objectively supports each element of
the
offense).
(to the
requirement of actual knowledge there
is one strictly limited exception; the rule is that if an accused has
his
suspicion aroused but then deliberately omits to make further
inquiries,
because he wishes to remain in ignorance, he is deemed to have
knowledge).
(deliberate
avoidance can create the same
criminal liability as actual knowledge for all Article 86, UCMJ,
offenses).
(accused’s
admission that he purposefully
avoided finding his appointed place of duty by remaining in his
barracks room
was sufficient to support his guilty plea to a charge of failing to go
to his
appointed place of duty).
United
States v. Phillippe, 63 M.J. 307 (unauthorized
absence can be
terminated in five ways, including surrender to military authority;
surrender
occurs when a person presents himself to any military authority,
whether or not
a member of the same armed force, notifies that authority of his
unauthorized
absence status, and submits or demonstrates a willingness to submit to
military
control).
(unauthorized
absence under
Article 86, UCMJ, is not a continuing offense; the length of an
unauthorized
absence is the essential element in determining the legal punishment
for the
offense).
(a military
judge may find
multiple absences within a single charged period so long as the maximum
authorized punishment does not exceed that for the longer period;
however, the
ability to do so is premised on the ability of judge to determine from
the
record an inception date for each separate period of unauthorized
absence; an
inception date is necessary to establish the offense).
(apprehension
contemplates termination of the accused’s absence in an involuntary
manner; and
termination otherwise is an absence ended freely and voluntarily; the
MCM does
not differentiate between these two classes of termination by means of
particular situations, but rather by way of a broad definition for each
category).
2004
United
States v. Hardeman, 59 MJ 389 (a definitive inception
date is
indispensable to a successful prosecution for unauthorized absence; in
addition
to establishing that an unauthorized absence offense has been committed
at all,
a precise inception date is required in determining the duration of the
absence; the length of an unauthorized absence is the essential element
in
determining the legal punishment for the offense).
United
States v. Seay, 60 MJ 73 (to determine whether the
asportation
element of kidnapping is more than an incidental or momentary
detention, this
Court considers the following factors: (1) the occurrence of an
unlawful
seizure, confinement, inveigling, decoying, kidnapping, abduction or
carrying
away and a holding for a period; both elements must be present; (2) the
duration thereof; is it appreciable or de minimis; this
determination is relative and turns on the established facts; (3)
whether these
actions occurred during the commission of a separate offense; (4) the
character
of the separate offense in terms of whether the detention/asportation
is
inherent in the commission of that kind of offense, at the place where
the
victim is first encountered, without regard to the particular plan
devised by
the criminal to commit it; (5) whether the asportation/detention
exceeded that
inherent in the separate offense and, in the circumstances, evinced a
voluntary
and distinct intention to move/detain the victim beyond that necessary
to
commit the separate offense at the place where the victim was first
encountered; and (6) the existence of any significant additional risk
to the
victim beyond that inherent in the commission of the separate offense
at the
place where the victim is first encountered; it is immaterial that the
additional harm is not planned by the criminal or that it does not
involve
the commission of another offense).