United States v. Private E1 EARL R. POLAN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN and SULLIVAN Appellate Military Judges UNITED STATES, Appellee v. Private E1 EARL R. POLAN United States Army, Appellant ARMY 20080024 Headquarters, Fort Drum David L. Conn, Military Judge Lieutenant Colonel Michael P. Ryan, Staff Judge Advocate Lieutenant Colonel Michelle L. Ryan, Staff Judge Advocate (post-trial addendum) For Appellant: Major Teresa L. Raymond, JA; Captain Alison L. Gregoire, JA. For Appellee: Lieutenant Colonel Francis C. Kiley, JA. 21 August 2008 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. Although appellant’s case was submitted to us on the merits, we find error in the findings of the court-martial as described below. A military judge sitting as a special court-martial convicted appellant, contrary to his pleas, of unauthorized absence terminated by apprehension (AWOL) in violation of Article 86, UCMJ. The termination date for appellant’s AWOL was charged as 13 September 2007 and the military judge found appellant guilty as charged. The record demonstrates, however, appellant was arrested on 29 August 2007 and held by civilian authorities solely on a felony deserter warrant at the request of military authorities. Accordingly, the correct termination date for appellant’s AWOL should be 29 August 2007. See Manual for Courts-Martial, United States, (2005 ed.), Part IV, para 10.c.(10)(d) and (e); see also United States v. Lanphear, 23 C.M.A. 338, 340 , 49 C.M.R. 742 , 744 (1975) (AWOL terminated when civilian authorities made appellant available for delivery to military authorities). DECISION We amend the finding of guilty in the Specification of Charge I to reflect the earlier termination date of 29 August 2007 and affirm the finding of guilty to Charge I and its Specification as amended. We have considered those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Reassessing the sentence on the basis of the error noted and the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1988) and United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006), including Judge Baker’s concurring opinion, the sentence is affirmed. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court