The court summarized the facts as follows:
Pursuant to a pretrial agreement, Appellant pled guilty to a charge and single specification under Article 86, UCMJ, which alleged an unauthorized absence from the USCGC JARVIS from on or about 28 April 2005 until his apprehension on or about 7 June 2005. During the providence inquiry, however, Appellant revealed that on 10 May 2005, he had been arrested and taken into custody by officers of the Honolulu Police Department (HPD) on theft charges unrelated to this court-martial. On the day of his arrest by the HPD, Appellant volunteered during questioning that he not only was a member of the military, but that he was absent without leave as well. When asked by the military judge why he revealed his unauthorized absence status to the HPD, Appellant essentially indicated that he knew the Honolulu authorities would eventually learn of his status. The following day, the HPD notified the Coast Guard of Appellant’s arrest. Coast Guard authorities placed a detainer on him that same day. Nevertheless, Appellant remained in civilian confinement until he posted bond on 7 June 2005, the date he was turned over to the Coast Guard.
During the providence inquiry, however, Appellant revealed that on 10 May 2005, he had been arrested and taken into custody by officers of the Honolulu Police Department (HPD) on theft charges unrelated to this court-martial. On the day of his arrest by the HPD, Appellant volunteered during questioning that he not only was a member of the military, but that he was absent without leave as well. When asked by the military judge why he revealed his unauthorized absence status to the HPD, Appellant essentially indicated that he knew the Honolulu authorities would eventually learn of his status.Slip op. at 2-3.
On appeal, the Government conceded that Appellant's UA had not been terminated by apprehension. The CGCCA agrees:
In United States v. Franchino, 48 M.J. 875, 877 (C.G.Ct.Crim.App. 1998) (internal citations omitted), this Court held “that ‘apprehension’ by civilian authorities does not establish ‘apprehension’ within the meaning of the military law of unauthorized absence, unless additional facts are established. Where termination by apprehension is alleged, in addition to apprehension by civilian authorities it must be shown that the accused was not the source of the information that he was a military absentee, or, if he was the source, that he revealed the information to avoid civilian prosecution. This is an essential part of the element of termination by apprehension.” Here, the evidence clearly shows that while Appellant informed the HPD of his absentee status, there is nothing to indicate that he did so to avoid civilian prosecution. While this statement did elicit further inquiry from the military judge, nothing in Appellant’s responses indicated that he was trying to avoid civilian prosecution.Slip op. at 3.
Analysis
"Any member of the armed forces who, without authority--
(3) absents himself or remains absent from his unit, organization or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct. "Article 86(3), UCMJ. The maximum sentence for an unauthorized absence for more than 30 days is a DD and confinement for 1 year. MCM pt. IV, ¶ 10e(2)(c). If the accused's unauthorized absence is for more than 30 days and "terminated by apprehension," the confinement portion of the maximum sentence is increased to 18 months. MCM pt. IV, ¶ 10e(2)(d).
The President has defined termination as methods of return to military control. MCM pt. IV, ¶ 10c(1). Under that paragraph, the President lists two methods of apprehension by civilian authorities: (1) at the request of the military -- "when an absentee is taken into custody by civilian authorities at the request of military authorities, the absence is terminated," (MCM pt. IV, ¶ 10c(10)(d); and (2) without prior military request--"When an absentee is in the hands of civilian authorities for other reasons and these authorities make the absentee available for return to military control, the absence is terminated when the military authorities are informed of the absentee's availability" (MCM pt. IV, ¶ 10c(10)(e).
The CGCCA did not cite to the MCM for the definition of termination by apprehension. Instead, it relied on case law. The case law, including the CGCCA's 1998 Franchino decision, are based on 1950s decisions of the CMA that relied on the 1951 MCM, which did not define the term "terminated by apprehension." See 1951 MCM ¶ 165. The only reference to the term in the 1951 MCM is in ¶ 127c--the Table of Maximum Punishments. In it, the term "terminated by apprehension" appears only as a sentencing enhancement for the offense of desertion under Article 85. Similarly, the only reference to "terminated by apprehension" in 1969 MCM is only mentioned as a sentencing enhancement the the offense of desertion under Article 85.
To me, the CMA and CGCCAs tortured logic on this issue doesn't make sense. The appellant's unauthorized absence was terminated by apprehension -- he wasn't turning himself into authorities. It was his apprehension that resulted in the termination of his UA. He did so because he knew the police would check wants and warrants and find that he was wanted by the military for being AWOL. I would conclude that the appellant's AWOL was terminated by apprehension so the 18-month confinement maximum would apply, but the fact that he told the police that he was wanted by the military could be considered as a mitigating factor in what an appropriate sentence would be. Of course, this case will never get to CAAF as the Government conceded the issue before the CCA.
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