CORE CRIMINAL LAW SUBJECTS: Crimes: Article 86 without Leave (2024)

CORE CRIMINAL LAW SUBJECTS: Crimes: Article 86 - Absence without Leave

2006

UnitedStates v. Adams, 63 M.J. 223 (evidence ofdeliberate ignorance can sufficeto meet the knowledge requirement of all Article 86, UCMJ, offenses;

(an Article 86,UCMJ, violation for failure togo to an appointed place of duty requires proof of the followingelements: (1)that a certain authority appointed a certain time and place of duty fortheaccused; (2) that the accused knew of that time and place; and (3) thattheaccused, without authority, failed to go to the appointed place of dutyat thetime prescribed; failure to go offenses require proof that the accusedactuallyknew of the appointed time and place of duty; actual knowledge may beproved bycirc*mstantial evidence).

(in cases whereknowledge is an essentialelement, specific knowledge is not always necessary; rather, purposefulignorance may suffice; for the government to raise deliberateignorance, itmust show some evidence from which it may be inferred that the accusedwassubjectively aware of a high probability of the existence of illegalconductand that the accused purposefully contrived to avoid learning of theillegalconduct).

(knowledge maybe inferred from evidence ofdeliberate avoidance in all Article 86, UCMJ, offenses; this knowledgerequirement may be satisfied where evidence establishes that theaccused wassubjectively aware of a high probability of the existence of illegalconduct,and purposely contrived to avoid learning of the illegal conduct; inthecontext of a contested trial, the evidence must allow a rational jurortoconclude beyond a reasonable doubt that the accused was aware of a highprobability of the fact in dispute and consciously avoided confirmingthatfact; in the context of a guilty plea, the military judge must besatisfiedthat there is a factual basis that objectively supports each element oftheoffense).

(to therequirement of actual knowledge thereis one strictly limited exception; the rule is that if an accused hashissuspicion aroused but then deliberately omits to make furtherinquiries,because he wishes to remain in ignorance, he is deemed to haveknowledge).

(deliberateavoidance can create the samecriminal liability as actual knowledge for all Article 86, UCMJ,offenses).

(accused’sadmission that he purposefullyavoided finding his appointed place of duty by remaining in hisbarracks roomwas sufficient to support his guilty plea to a charge of failing to goto hisappointed place of duty).

UnitedStates v. Phillippe, 63 M.J. 307 (unauthorizedabsence can beterminated in five ways, including surrender to military authority;surrenderoccurs when a person presents himself to any military authority,whether or nota member of the same armed force, notifies that authority of hisunauthorizedabsence status, and submits or demonstrates a willingness to submit tomilitarycontrol).

(unauthorizedabsence underArticle 86, UCMJ, is not a continuing offense; the length of anunauthorizedabsence is the essential element in determining the legal punishmentfor theoffense).

(a militaryjudge may findmultiple absences within a single charged period so long as the maximumauthorized punishment does not exceed that for the longer period;however, theability to do so is premised on the ability of judge to determine fromtherecord an inception date for each separate period of unauthorizedabsence; aninception date is necessary to establish the offense).

, 62 M.J. 404 (in order toestablish that an accused’sabsence from his unit was terminated by apprehension, the facts on therecordmust establish that his return to military control was involuntary).

(apprehensioncontemplates termination of the accused’s absence in an involuntarymanner; andtermination otherwise is an absence ended freely and voluntarily; theMCM doesnot differentiate between these two classes of termination by means ofparticular situations, but rather by way of a broad definition for eachcategory).

(in this case,where the dorm manager came tothe accused in his dorm room and told him that his squadron was lookingforhim, and the accused, who was in an unauthorized absentee status, thenvoluntarily surrendered by going to the front of the dorm where he methiscommander, the accused’s absence was terminated by his voluntarysurrenderrather than by apprehension; nothing in the record established that thedormmanager believed the accused had committed an offense or that the dormmanagerhad the authority to take him into custody; without this authority, themerefact that the dorm manager made contact with the accused while he wason baseand in his dormitory room is not sufficient to establish that theaccused wasunder military control).

2004

UnitedStates v. Hardeman, 59 MJ 389 (a definitive inceptiondate isindispensable to a successful prosecution for unauthorized absence; inadditionto establishing that an unauthorized absence offense has been committedat all,a precise inception date is required in determining the duration of theabsence; the length of an unauthorized absence is the essential elementindetermining the legal punishment for the offense).

UnitedStates v. Seay, 60 MJ 73 (to determine whether theasportationelement of kidnapping is more than an incidental or momentarydetention, thisCourt considers the following factors: (1) the occurrence of anunlawfulseizure, confinement, inveigling, decoying, kidnapping, abduction orcarryingaway and a holding for a period; both elements must be present; (2) thedurationthereof; is it appreciable or de minimis;thisdetermination is relative and turns on the established facts; (3)whether theseactions occurred during the commission of a separate offense; (4) thecharacterof the separate offense in terms of whether the detention/asportationisinherent in the commission of that kind of offense, at the place wherethevictim is first encountered, without regard to the particular plandevised bythe criminal to commit it; (5) whether the asportation/detentionexceeded thatinherent in the separate offense and, in the circ*mstances, evinced avoluntaryand distinct intention to move/detain the victim beyond that necessarytocommit the separate offense at the place where the victim was firstencountered; and (6) the existence of any significant additional riskto thevictim beyond that inherent in the commission of the separate offenseat theplace where the victim is first encountered; it is immaterial that theadditional harm is not planned by the criminal or thatit does notinvolvethe commission of another offense).

(inthe case atbar, appellant’s confession and the forensic evidence of the murder,includingthe victim’s body and the crime scene itself, establish that the actsofrestraint and asportation occurred prior to the actual murder, andexceededthose acts inherent to the commission of murder; we therefore hold thatareasonable trier of fact could find beyond a reasonable doubt that theelementsof kidnapping were satisfied).