A deserter's just deserts (sic)

Desertion / UA cases at court-martial seem rare these days. But in Robinson, an about-to-be-published opinion of ACCA (en banc), we get a primer on Articles 85 and 86. It's a GP, and the core question is on what day the Appellant deserted.

To paraphrase Mr. Gradgrind, first the facts.

1. Appellant commences UA from Ft Sill on 27 Dec. 2018.
2. Appellant is returned from UA on 24 Sept. 2019.
3. Appellant again commences UA from Ft. Sill to Fayetteville on 4 Nov. 2019.
4. Appellant moved from Fayetteville to central Texas in March 2021.
5. Appellant begins employment at a pest control company in Texas in Mar. 2023.
6. Appellant is apprehended on 13 Jun. 2023.

He is charged with UA for the first period and desertion on or about 4 Nov. 2019.

Knowing nothing else, when did he desert? Keep in mind, this is a guilty plea, so we don't know what evidence was developed during any investigation into what he did when he left or what he said when he left.

During the Care inquiry and apparently in the Stip. we learn that his "intent" to remain away permanently was formed when he moved to Texas in 2021.

"Although the military judge did not ask whether appellant's intent to remain away permanently formed at any time before starting his job at Moxie Pest Control or whether his intent changed throughout the duration of his absence, the military judge concluded appellant's plea to desertion for the period charged was provident.

On appeal, ACCA, en banc, Judge Schlack writes for a majority of seven, a concurring opinion by Judge Williams, with three others agreeing, and Judge Fleming writing in dissent from herself and three others. 

We've been taught that desertion and UA are instantaneous offenses, and the length of the absence and conditions of service return are potential aggravating factors.

If Seaman Budd cuts up his uniforms and ID card, leaves them on his rack, and tells his friends he ain't never coming back, and leaves the ship--and doesn't come back until arrested while speeding, that's helpful evidence of intent to desert at the time he leaves the ship.

If Seaman Budd tells his friends he's leaving, he needs to get away from his place, and leaves the ship telling his friends and the quarter-deck watch "See ya later"--and doesn't come back until arrested while speeding, that's less than helpful evidence of intent to desert at the time he leaves the ship.

If Seaman Budd tells his friends he's leaving, he needs to get away from his place, and leaves the ship telling his friends and the quarter-deck watch "See ya later"--and doesn't come back, but he gets a phone call at his Mom's house a few weeks later from his LCPO who has tracked him down--and he tells the chief that "He ain't never coming back--he can *Y((*&(t the Navy" and hangs up--now what. And months later he is arrested while speeding.

Now what? Robinson tells us he deserted on the day he had the phone call with his chief and expressed an intent to remain away permanently. Robinson also tells us that it is OK, in a guilty plea case, to charge desertion commencing on the day he first left.

The "intent to remain away permanently need not be formed in the mind of the accused at the moment of departure ." for an appellant to be found guilty of desertion. "The crime of desertion can be established by the showing of an absence with a concurring intent, at the commencement of or at some time during the absence, to remain away permanently." This statement of law from our superior court is echoed in the Manual for Courts-Martial ("The intent to remain away permanently may be formed any time during the unauthorized absence. The intent need not exist throughout the absence as long as it exists at some time during the absence.").

Appellant's providence colloquy details a factual scenario contemplated by Article 85, UCMJ.

The dissent reaches a different conclusion--duh.

I join Senior Judge Fleming's dissent in every respect. I write separately to crystallize things. This Court radically agrees appellant deserted his unit. But we disagree over the affirmed inception date, based on an equally radical disagreement over one of criminal law's first principles.

The government proved nothing in this case no criticism there, for appellant obviated that burden by pleading guilty and waiving his right to a trial. This constrains our decisional facts to the providence inquiry and stipulation of fact, and both tell us he formed the "intent to remain away therefrom permanently" in March 2023. In this case, the Court cannot circumstantially infer a more specific, earlier date; doing so would create an irreconcilable conflict with the providence inquiry and stipulation of fact

The dissent also suggests that Judge Fleming's comment on the MCM is a valuable reminder to practitioners. She first "agree[s] with this general theory, but I do not interpret this language to stand for the proposition that, if appellant's specific intent arose "at some time during the absence," his newly formed specific intent (mens rea) must then retroactively apply to the date of his initial "going." Most notably, Article 85, UCMJ, remains silent as to the validity of a retroactive application of a specific intent mens rea to an earlier actus reus."

Will CAAF bite? By the numbers at least, the decisions fit within Rule 21(b)(5)(E)--we'll see.

Judge Fleming's analysis is well worth re-reading in the event Seaman Budd decides to plead NG.