United States v. Lovell

Opinion of the Court ROBERT E. Quinn, Chief Judge: A board of review affirmed the accused’s conviction on two specifications of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 50 USC § 680, and his sentence to a dishonorable discharge (suspended), total forfeitures, and confinement at hard labor for one year. We granted review to consider the legal sufficiency of the evidence to support the findings of guilty on specification 2. The specification in issue alleges that the accused absented himself without authorization from his organization for the period from October 28, 1955, to December 20, 1955. The initiation of the absence was established by an extract copy of the morning report of the accused’s organization. However, on defense counsel’s objection, a second exhibit showing the accused’s return to military control was excluded from evidence. No other evidence of the termination of the accused’s absence was presented. In United States v Emerson, 1 USCMA 43, 1 CMR 43, we held that the offense in question is com- píete as soon as the accused -absents himself without proper authority. We further held that the time of return goes only to the “gravity of the offense.” Ibid, page 46. These rulings are also expressed in the punishments prescribed for the offense. An unauthorized absence for a period of not more than three days subjects the accused to a maximum punishment of confinement at hard labor not to exceed one month and a limited forfeiture of pay; an absence in excess of three days, but not more than thirty days, is punishable by confinement at hard labor for six months and forfeiture of two-thirds pay for a like period; and, finally, an absence of more than thirty days authorizes a dishonorable discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances. Manual for Courts-Martial, United States, 1951, paragraph 127c, Section A, as amended by Executive Order No. 10565, September 28, 1954. Thus, the length of the absence increases the permissible punishment. In other words, the duration of an unauthorized absence is an aggravating circumstance. If the punishment for an offense depends upon aggravating matter, such matter must be both al- leged and established beyond a reasonable doubt by the evidence. United States v Beninate, [448] 4 USCMA 98, 15 CMR 98; United States v May, 3 USCMA 703, 14 CMR 121. Here, the question is whether the court-martial’s finding of the aggravating circumstance, namely, the duration of the unauthorized absence, is legally correct. To support the finding the Government relies upon the presumption of continuance.1 The 1951 Manual expresses the presumption in two forms. First, it notes the general rule that a “condition shown to have existed at one time may be presumed to have continued.” Paragraph 138a. Secondly, in its discussion on desertion it provides that: “. . . Having once been shown to exist, the condition of absence without proper authority with respect to an enlistment or appointment may be presumed to have continued, in the absence of proof to the contrary, until the return of the accused to military control under that enlistment or appointment.” [Paragraph 164a, page 313.] In considering the meaning of the quoted provision service boards of review have reached opposite conclusions. One group has held that the prosecution must present affirmative evidence of the date of return to military control in order to bring the presumption into operation. See United States v Leone, 30 BR (ETO) 257. Another group maintains that, once an unauthorized absence is shown, it is presumed to continue until the accused himself establishes his return to military control. United States v Buzbee [ACM 2897], 3 CMR(AF) 457; United States v Thomas [ACM 5027], 6 CMR 646. As the board of review in the Buzbee case expressed it, the accused must show “by some evidence . . . that the Air Force has exercised some measure of actual or constructive control over him.” In this line of cases the accused’s presence at the trial is regarded as evidence of the date of his return to military control. The difficulty with the Buzbee position is that it disregards the surrounding circumstances. If it is assumed that the accused returned to military control on the same day of his trial, it must also be assumed that the charges were served upon him; that they were fully and impartially investigated under the provisions of Article 32, Uniform Code of Military Justice, 50 USC § 603; that they were submitted to and considered by the Staff Judge Advocate in accordance with the requirements of Article 34, 50 USC § 605; that they were considered by the convening authority and referred by him for trial; and, finally, that defense counsel conferred with the accused in the preparation of the defense. All this must be presumed to have taken place between the hour the accused returned to military control and the hour the court-martial convened on the same day. Such speed would strongly imply that the accused was deprived of the important pretrial proceedings provided for by Congress. See United States v Parker, 6 USCMA 75, 85, 19 CMR 201. Consequently, common sense and legal experience require the conclusion that the accused’s mere presence at the trial does not support a finding that he returned to military control only as of that date. On the contrary, it strongly implies an earlier return. Put differently, the presumption of continuance does not merely flow forward, as the Government contends, but it also flows backward. See, Reading Co. v Geary, 47 F2d 142 (CA4th Cir) (1931); Wigmore, Evidence, 3d ed, §§ 382, 435. At some point the backward [449] flow of the presumption meets the forward flow. Any attempt to fix that point is sheer speculation. Consequently, the presumption of continuance cannot supply the neces sary proof of aggravation. There must be other positive evidence of the accused’s return to military control. What then is the meaning of the Manual’s provision? As we construe it, it simply means that on proof of two facts: (1) an unauthorized absence, and (2) a later return to military control, the court-martial can infer that the entire period of absence was unauthorized. Proof of only one of these two operative facts does not provide the required basis for the presumption. Our construction accords with the statement of the presumption in the 1921 Manual, which provides the basis for the current provision. It was there said: “The condition of absence without leave having once been shown to exist will be presumed to continue in the absence of evidence to the contrary until the accused came again under military control. It is therefore necessary to prove only that the accused went absent without leave a certain date and came under military control a certain date. During the intermediate time it is presumed he was absent without leave.” [Italics supplied.] [Manual for Courts-Martial, U. S. Army, 1921, paragraph 284.] Our construction is also in harmony with the long-established administrative interpretation of the essential elements of unauthorized absence offenses. Thus, in the case of desertion, it has been said that the prosecution must prove that the desertion “was of a duration . . . as alleged.” Manual for Courts-Martial, United States, 1951, paragraph 164a; Manual for Courts-Martial, U. S. Army, 1949, paragraph 146; Manual for Courts-Martial, U. S. Army, 1928, paragraph ISO. In regard to a simple unauthorized absence case, the Manuals point out that the prosecution must prove that the accused absented himself “for a certain period.” 1951 Manual, paragraph 165; 1949 Manual, paragraph 149; 1928 Manual, paragraph 132. Significantly, the emphasis in both instances is on definiteness of duration. We hold, therefore, that the evidence here is legally insufficient to support a finding that the accused’s unauthorized absence was for the period alleged. It is however, sufficient to support the accused’s conviction for an unauthorized absence of one day. Accordingly, we find correct in law only so much of the findings of guilty of specification 2 as finds that the accused absented himself without authority from his organization on October 28, 1955. The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the United States Air Force for submission to the board of review for determination of an appropriate sentence on the basis of the findings of guilty of specification 1 and the modified findings of guilty of specification 2. Judge FERGUSON concurs. Footnotes [1] The manual uses the word “presumption” in two disparate senses. In one sense presumption means merely a “justifiable inference”; in another it imposes a duty on the court members to presume certain facts from other facts in evidence. Manual for Courts-Martial, United States, 1951, paragraph 138a. This loose approach has been the subject of critical comment. R. L. Ted-row, Comments on “Self-Incrimination Refined,” The Judge Advocate Journal, Bulletin No. 20, July 1955, page 41. In some situations the difference may be material. Here, however, it is unnecessary to determine the precise nature of the presumption in issue.