Miller presents an important reminder that simple cases are not always simple.
UA cases are usually simple. You have official records showing a person is assigned to a unit, the person was absent from the unit, and they did not return to military control until a particular date. Whether the UA was just that, a UA, or a desertion, the offense is committed on the day of absence or formation of the intent to desert and is not a continuing offense.
Miller suggests that when an accused goes absent in 1978 and is not returned until 2022, after being arrested in Soddy Daisy, TN, people ought to be checking the documentation and the statute of limitations.
In 1978 the SoL was three years. In Miller, the charges were not preferred until 2022. Yep, people in Admin or Legal didn't do a preferred charge sheet at the 30 day mark when Miller was administratively considered a deserter and may not have done a DD 553.
Miller plead guilty. When asked if he understood the term to waive all waivable motions Miller said yes. When the DC was asked about any motions to be waived the reply was "no[ne]." Ooops. Because of this, no inquiry was made by the MJ about waiver of the obvious SoL defense.
Miller's case was presented on its merits.
NMCCA points out that it wasn't until the court specified the issue that any judge advocate in the process became aware of the SoL issue. And, of course points out that the Government arguments supporting waiver don't hold water if all the lawyers in the process weren't aware of the issue.
I'm assuming, without checking, that with the many years of dead time, Miller might still be processed for an OTH. Miller already has a HD for four years in the Marine Corps.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook