United States v. Anderten

— 357 — Opinion of the Court GEORGE W. LatimeR, Judge: The nature of the issues upon which accused’s petition for review was granted in this case limits our discussion to the offense of absence without leave, one of the offenses of which the accused now stands convicted. Accordingly, only a brief statement of the case is required. At the time of the events herein related, the accused was stationed in Okinawa. On May 21, 1952, he was informed that charges had been lodged against him for violation of Article 121, Uniform Code of Military Justice, 50 USC § 715. There were three specifications under the charge, each alleging larceny by check. On May 30, 1952, accused requested, and orders were issued authorizing him temporary duty with Headquarters, Far East Air Forces, APO 925, for approximately five days, for the purpose of securing civilian legal counsel. On June 21, 1952, he was apprehended in Tokyo, Japan, and returned to his unit on June 24, 1952. After his return, three additional charges were brought against him. The first additional charge alleged desertion founded on an unauthorized absence with intent to remain away permanently in violation of Article 85 of the Code, 50 USC § 679. The second and third additional charges alleged twenty-two additional offenses of larceny by check under Article 121 of the Code, supra. The court-martial returned findings of guilty of wrongful appropriation on two of the specifications under Charge I, guilty of absence without leave under the first additional charge, and guilty as charged in the second and third additional charges. Accused was sentenced to be dismissed from the service, to forfeit all pay and allowances, and to be confined at hard labor for three years. The convening authority reduced the period of confinement to one year, and approved the findings and the sentence as reduced. The board of review set aside the findings of guilty under the second and third additional charges, affirmed the other findings, and approved the sentence after reducing the period of confinement to eight months. We granted the accused’s petition for review in order that we might pass upon two issues, namely, whether depositions were admissible to prove the crime of desertion, and whether the evidence is sufficient to support the conviction of the included offense of absence without leave. Article 85, Uniform Code of Military Justice, supra, under which the desertion charge was laid, pro- vides that when the offense is committed “in time of war” the accused may be punished “by death or such other punishment as a court-martial may direct.” It is now well settled that, for purposes of interpreting the provisions of the Uniform Code of Military Justice, the Korean conflict is “time of war,” United States v. Bancroft, 3 USCMA 3, 11 CMR 3. Furthermore, a desertion committed during such time is a capital offense, United States v. Gann, 3 USCMA 12, 11 CMR 12. Article 49 (f) of the Code, 50 USC § 624, provides that depositions may not be received in evidence against an accused in a capital case, but a case is not considered as being capital when the convening authority has directed that it be treated as noncapital. See United States v. Young, 2 USCMA 470, 9 CMR 100; United States v. Horner, 2 USCMA 478, 9 CMR 108; and United States v. Aldridge, 4 USCMA 107, 15 CMR 107. In the case at bar eighteen depositions, introduced by the prosecution, were received in evidence. At least five of those dealt solely with the charge of desertion. In addition, some of the others, although primarily concerned with the larceny offenses, indicated by the dates given and places named that the accused was absent from his station during the period involved. Appellate defense counsel attack the use of the depositions on the ground that the charge of desertion was a capital offense which was not rendered noncapital by appropriate action by the convening authority. The assigned error is predicated solely on an alleged omission in the — 358 — indorsements referring the charges for trial. The charges, which had been previously referred to another court-martial on June 11, 1952, were withdrawn from that court and referred to the one which tried the accused; but the indorsements contained no special instructions with respect to any limitations on sentence. Appellate defense counsel contend that, if the convening authority intended that the ease be treated as noncapital, he should have so stated in the order of reference. To support this contention, we are referred to paragraph 33/ (1) of the Manual which provides: “Charges are ordinarily referred to a court-martial for trial by means of the indorsement on page 3 of the charge sheet (app 5). Although the indorsement is usually completed on all copies of the charge sheet, only the original need be signed. The in-dorsement may include any proper instructions; for instance, a direction that the charges be tried with certain other charges against the accused (246), or in a common trial with other persons (33Í), or that a capital case be treated as not capital (15a (3); Art 49/).” Although the language of the quoted paragraph is permissive rather than mandatory, we believe the better practice is to comply strictly with the quoted provision. However, we do not believe that in all instances failure to do so requires us to hold that a case is capital. Neither do we believe the failure to follow precisely the prescribed procedure in this instance renders the depositions inadmissible. Article 34(a) of the Uniform Code of Military Justice, 50 USC § 605, provides: “(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate or legal officer for consideration and advice.” This is amplified by the provisions of paragraph 35c of the Manual which states: “Action of the staff judge advocate or legal officer. — The advice of the staff judge advocate or legal officer shall include a written and signed statement as to his findings with respect to whether there has been substantial compliance with the provisions of Article 32, whether each specification alleges an offense under the code, and whether the allegation of each offense is warranted by the evidence indicated in the report of investigation; it shall also include a signed recommendation of the action to be taken by the convening authority. Such recommendation will accompany the charges if they are referred for trial. See 44p (1) and ⅞.” Here the allied papers show that the accused was informed of the original charge against him on May 21, 1952. This charge involved only three specifications of larceny by check, and the offenses alleged were noncapital. On June 12, 1952, this charge was referred to a court-martial for trial, but at that time the accused was absent from his station, and the charge was withdrawn and later referred to the court-martial which tried the accused. After his return to his unit on June 24, 1952, investigation of the additional charges was instituted. These additional charges included the capital offense of desertion. After an appropriate pretrial investigation, the record was referred to the staff judge advocate for his advice and recommendation. He noted that a capital offense was involved and his report to the convening authority contained the specific recommendation that the additional charges be treated as non-capital. This recommendation was approved in writing on the report by the convening authority prior to trial. It accompanied the charges and became part of the record. Accordingly, we find a written direction by the convening authority that the ease was not to be processed as a capital case. Moreover, because the direction accompanied the charge sheet, we have reason to believe that the necessary court personnel were informed as to the limitations on the punishment. Certainly the record of trial bears testimony to the effect that all personnel at the trial — 359 — level considered the case as being a noncapital prosecution. There is military authority for the proposition that a direction in writing filed as part of the allied papers is sufficient to render a case noncapital. In United States v. Duncan [ACM S-1180] 4 CMR(AF) 357, an Air Force board of review stated: “The letter of 4 January 1951 appears in the allied papers accompanying the record of trial proper. This was an appropriate place for it to appear. It is not legally essential that such a direction by the officer authorized to appoint a general court-martial to be a part of the record of trial proper in order for it to be considered in determining whether the court had jurisdiction, the decisive point being that the direction was in fact given (ACM S-1150, Jones, 4 CMR 345; ACM 13, Baggett, 1 CMR 16, 22).” The instant case is much stronger than the reported case for the reason that the direction given is included in a document which the Manual directs must accompany the charges. Assuming in this instance a variance from normal procedure, we find the error, if any, to be one of form and not one of substance. The first assignment of error is, therefore, overruled. As to the contention that the evidence is insufficient to support the findings of guilty of absence without leave, appellate defense counsel rely primarily upon the inadmissibility of certain extract copies of morning reports which were received in evidence. Seemingly the alleged inadmissibility is founded on two assertions: first, the entries are not consistent, and, second, the words “corrected entries” are not marked on some. As a starting point, we mention the fact that the evidence for the Government establishes overwhelmingly that accused was absent without leave for some period of time, and the evidence for the accused does not show otherwise. The only possible points of dispute are the dates of inception and termination of the absence. For purposes of clarity, we list the exhibits that affect the commencement date and then those showing the end of the absence period. On June 16,1952, a morning report entry was made showing that on June 9, 1952, the accused’s status changed from duty to absence without leave. Subsequently, by an entry dated July 7, -1952, the change of status was shown as effective on May 31,1952. Again, an entry dated October 10, 1952, shows the accused was transferred from duty to absence without leave effective June 6, 1952. We thus have three separate entries showing three separate commencement dates. An entry dated June 24, 1952, indicates that the accused returned and was transferred from absence without leave to arrest in quarters on that date. A later morning report entry of July 7, 1952, shows his transfer from absence without leave to arrest in quarters on June 21, 1952. On August 25, 1952, another morning report entry was made showing that the accused was awaiting transfer to Okinawa on June 21, 1952, and that his status was changed from absence without leave to confinement on that date. We first dispose of the contention that all reports were inadmissible because they were not prepared in accordance with Air Force regulations. Concededly, official documents should be prepared in accordance with law but every omission does not destroy their admissibility. Only those material to the execution of the documents could have that effect. Here we are not confronted with a material omission for the rea SOn that, if it becomes important to determine which are the primary entries and which are the corrected entries, we need go no further than refer to the dates of the reports. It hardly needs saying that the first entries in point of time on commencement and termination cannot be corrected entries. Assuming the later ones are, and therefore incompetent, we find no reason to discard the first as they were prepared according-to the regulations and they meet all the tests of officiality. However, rather than skirt the issue, we hold that failure to type on a subsequent report the words “corrected entry” does not of itself ren — 360 — der the report unofficial and inadmissible. While those words might expedite the paper work in the service, there is substitute evidence on the document itself which furnishes the same information. The next point of attack is that the entries are not consistent with each other. This need be conceded only if we ignore the dates, but assuming we do that, the variances only affect their weight. We have previously disposed of the question of the admissibility of official documents shown to be inaccurate. In United States v. Phillips, 3 USCMA 557, 13 CMR 113, we stated: . . It is entirely possible that the special order issued by that Headquarters could have been amended by shortening accused’s period of leave by five days and if that had happened, then the morning report entry would bespeak accuracy. However, there is a greater possibility that the reporting officer inadvertently used the EDCSA date instead of the reporting date for the commencement of the absence. We shall discard the first possibility and assume the officer making the entry advanced improperly the time of the absence without leave by five days. While we concede an inaccurate entry would affect the weight to be given the exhibit, we are unable to follow the argument that it would render it inadmissible.” Whether these particular entries are entitled to any weight must be considered in the light of the reasons advanced for changing the dates. The reporting officer and the base legal officer testified as to the background of each of the three dates of inception of the absence. In each instance the information upon which accused’s reported absence was based came from appropriate sources and the reasons for the uncertainty were apparently occasioned by the activities of the accused. He was given temporary duty for approximately five days. However, he never entered upon the duties for which he was - authorized travel. The original entry was based on the orders and a reasonable time for return travel after the prescribed period had elapsed. Subsequently, doubt arose about crediting the accused with the time covered in the orders and it was concluded that he was not entitled to the temporary duty time because he did not attempt to perform his mission. Further consideration caused the appropriate authorities to give him credit for this period, but apparently no travel time for return was allowed as accused was apprehended and returned under guard. A plausible case could be made to justify any of the three entries, but the court-martial resolved the discrepancies by finding inception at the latest of the three dates. This was beneficial to the accused and he cannot justly complain. Some difficulty was likewise encountered by his unit in determining the correct date of termination of the absence. The first entry discloses a return date of June 24, 1952. This was predicated on the time he was physically returned to his unit. The second entry credited him with return to the Air Force on the day he was apprehended in Tokyo. The last entry combined the information contained in the others. Again, the court-martial made a finding beneficial to the accused as it found his return to have been on the earliest recorded date. Even were we to discard the morning entries, we would still be compelled to hold that the record is suffi- cient to establish all the necessary elements of the offense of absence without leave. Evidence alijjnde the reports, establishes that on May 29, 1952, the accused requested permission to go to Tokyo, Japan, for the purpose of employing civilian counsel to aid in his defense to charges pending against him. Pursuant to that request temporary duty orders for approximately five days were issued to the accused on May 30, 1952, and he left Okinawa for Tokyo. He arrived in Tokyo on May 31, 1952, and had he made reasonable efforts to obtain counsel, it is reasonable to assume he would have returned within the prescribed period. However, from that date until his apprehension there on June 21, 1952, he left military channels and lived as a guest in the Hotel — 361 — Waldorf in Tokyo. He originally signed in as a guest at Army Hall Far East Air Forces on May 31, 1952, and left a deposit to guarantee payment of his room. He, however, did not return to those quarters and he was checked out by an Air Force clerk on June 10, 1952, and his account was closed. While the accused took the witness stand, he limited his testimony to the larceny charges. However, he admitted cashing a number of checks in Tokyo and many of these were dated after his five-day period of temporary duty had expired. His stay at the Waldorf Hotel was interrupted by his being taken into custody on June 21, 1952, by an agent of the Office of Special Investigation. Accused first informed the hotel proprietor that he intended to stay for one week, but he later told the same' individual he would remain for thirty days, yet he never originated any request to any military authority that his orders be amended to permit such a lengthy stay. There is no showing that he contacted any civilian counsel nor that he needed more than the five days time to complete his mission. There was air transportation available back to his own station during the entire period of time and ample space to accommodate him. During his twenty-one days venture, he cashed checks in the approximate amount of $1,100.00 and apparently the funds were used for social purposes. The original temporary duty order was requested by the accused, and we assume he had some reasonable basis for concluding that five days would be ample time to accomplish his purpose. The fair import of the orders is to allow him that period. A precise period is not prescribed as the time may be shortened by accomplishing the mission sooner than expected or extended because unexpected difficulties make it impossible to return on the exact date. Neither of those contingencies are present in this case because the accused elected to squander his time for purposes other than those contemplated by the orders. He can hardly argue he was unable to complete his task, and that he in good faith attempted to return at the earliest practicable time, but was prevented from so doing by circumstances _ beyond - his control. Moreover, his experience in the service was of sufficient length and variety that he must have known that if orders do not provide sufficient time to complete a task, an approved extension must be obtained. When we assemble all of the facts and circumstances together, aside from the morning report entries, we find ample evidence to sustain a reasonable person in finding that the accused was absent without authority from June 9, 1952, until June .21, 1952. This was the finding returned and it must be sustained. The decision of the board of review is affirmed.