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Absence Without Leave

Absence without leave is an offense that is unique to the military. Article 86 of the Uniform Code of Military Justice makes absence without leave a criminal offense punishable by court-martial. Article 86 provides that:

Any member of the armed forces who, without authority—

(1) fails to go to his appointed place of duty at the time prescribed;

(2) goes from that place; or

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct.

The article is designed to cover all cases in which a person subject to the Uniform Code of Military Justice is through his own fault, not at the place where he is required to be at a time when he should be there. It includes not only unauthorized absence from a unit or post, but also a failure to go to, or going from an appointed place of duty such as guard, quarters, or rendezvous for a march.

The Table of Maximum Punishments found in paragraph 127 of the Manual for Courts-Martial provides that a soldier convicted of an extended absence without leave can receive a dishonorable discharge, total forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a reduction to the lowest enlisted grade.

Missing Movement

Missing movement is another offense unique to the military. It is a crime under Articles 87 of the Uniform Code of Military Justice and is punishable by court-martial. Article 87 states that:

Any person subject to [the UCMJ] who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial shall direct.

To be found guilty of the offense of missing movement a soldier must, through neglect or design, miss the movement of the unit with which he is required to move. To establish guilt it need only be proved that the soldier knew of the unit's movement; it need not be proved that he knew the exact hour or the exact date of the move. The maximum sentence a soldier can receive if convicted of missing movement is a dishonorable discharge, total forfeiture of all pay and allowances, confinement at hard labor for 1 year and reduction to the lowest enlisted grade.

Desertion

Desertion is the most serious offense involving unauthorized absence. It is also a crime unique to the military and is made punishable under the provisions of Article 85 of the Uniform Code of Military Justice. Article 85 states that:

(a) Any member of the armed forces who

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;

(2) quits his unit, organization, or place of duty with intent to avoid
hazardous duty or to shirk important service; or

(3) without being regularly separated from one of the armed forces enlists
or accepts an appointment in the same or another one of the armed forces
without fully disclosing the fact that he has not been regularly separated, or
enters any foreign armed service except when authorized by the United
States;

is guilty of desertion.

(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

A soldier commits the offense of desertion when he absents himself from his unit with an intent to remain away therefrom permanently, or quits military service with an intent to avoid hazardous duty.

When a soldier is charged for deserting his unit with an intent to remain away therefrom permanently, two elements-absence without authority and intent to remain away therefrom permanently-must be proved beyond a reasonable doubt. A soldier's prompt repentance or return is not a defense to a desertion charge involving an unauthorized absence with an intent to remain away permanently.

The "hazardous duty" or "important service" referred to in section (a)(2) of article 85 includes service such as duty in a combat or dangerous area, embarkation for foreign duty or movement to a port of embarkation for that purpose, or strike or riot duty. Desertion with an intent to avoid drills, maneuvers, or practice marches is not desertion with an intent to avoid "hazardous duty" or "important service" and should not be charged as a violation of section (a)(2) of Article 85. The maximum sentence a soldier convicted of desertion can receive is a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 years and reduction to the lowest enlisted grade.

OFFENSES INVOLVING MILITARY AUTHORITY

In the civilian community, an employee may decide not to follow his superiors' instructions; he may disagree with his superior or even be disrespectful to him. While such conduct may result in the employee's being passed over for promotion, demoted, or dismissed, it is not regarded as criminal conduct punishable in the criminal justice system.

In the military, a soldier is expected to obey the orders and instructions of his superior and his failure to do so is punishable as a criminal offense. In combat operations obedience to orders is deemed essential to successfully accomplishing objectives and completing missions and to

saving lives and preventing injuries. Obedience to orders must be learned and is a result of training just as rifle marksmanship proficiency is a result of training. Because of the high degree of discipline required when men must obey orders which may result in their death or injury on the battlefield, all orders in peace and war are regarded to be important. If a soldier will disobey an order in peacetime to clean a barracks area, to correct a uniform violation, or to get a haircut, it is reasoned that he may disobey an order given in combat that involves a risk to his life.

Because of the importance attached to discipline and following orders in the military, the failure to obey instructions and the demonstration of disrespect to a superior are offenses punishable by court-martial. The fact that such conduct occurs in peacetime rather than in war is not a defense to charges of disrespect or disobedience.

Superior Officers

Superior officers are the subjects of Articles 89 and 90 of the Uniform Code of Military Justice. The purpose of these articles is to insure that the orders of superior commissioned officers are obeyed and to protect superior officers from violence, insult and disrespect. A superior officer is any officer who is superior in rank or command to the accused. If an officer is of a different armed force, he must have been placed in the chain of command over the accused to be a superior officer.

Disrespectful Behavior Toward a Superior

Article 89 provides that behaving with disrespect toward a superior commissioned officer is a criminal offense in the military. Article 89 states that:

Any person subject to [the UCMJ] who behaves with disrespect toward his
superior commissioned officer shall be punished as a court-martial may direct.

The misconduct contemplated by Article 89 is that which detracts from the respect due to the authority and person of a superior. It is not essential that the superior be in the execution of his office or that the disrespectful behavior be in the presence of the superior. However, an accused ordinarily is not held accountable for disrespectful statements made by him in purely private conversation with persons other than the superior officer. The maximum sentence that can be imposed on one convicted of behaving with disrespect toward his superior commissioned officer is a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 6 months and reduction to the lowest enlisted grade.

ASSAULTING OR WILLFULLY DISOBEYING A SUPERIOR OFFICER

Assaulting or willfully disobeying a superior officer are offenses punishable by Article 90 of the Uniform Code of Military Justice. Article 90 states that:

Any person subject to [the UCMJ] who—

(1) strikes his superior commissioned officer or draws or lifts up any
weapon or offers any violence against him while he is in the execution of his
office; or

(2) willfully disobeys a lawful command of his superior officer;

shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any time, by such punishment, other than death, as a court-martial may direct.

The offense of assault under Article 90 occurs when a soldier strikes, draws a weapon, or offers violence against his superior commissioned officer who is in the execution of his office. The word "strike" means an intentional blow likely to cause injury. The drawing of a weapon in an aggressive manner or raising or brandishing a weapon in a threatening manner in the presence of a superior officer are the types of acts made offenses in the term "draws or lifts up any weapon against." The phrase "offers any violence against" includes any form of battery (striking) or assault (attempt or offer to strike) not embraced in the preceding more specific terms “strikes” and “draws or lifts up." A mere threat of words is not an offer of violence within the meaning of Article 90, although it often constitutes disrespectful behavior under Article 89.

To prove the offense of willful disobedience it must be proven that an accused intentionally defied authority. An example of willful disobedience is when an officer gives an enlisted man a lawful command to report to his duty station at once and the soldier refuses to do what is ordered. The order given by the superior officer must be related to military duty. The order also must be one which the superior officer is authorized under the circumstances to give the accused. A soldier cannot be found guilty of willful disobedience if the order given was illegal.

Two elements are common to the offenses of assault and willful disobedience under Article 90: (1) the superior officer must be in the execution of his office; and (2) the accused must know that the officer is his superior.

The latter element usually is inferred from the circumstances. An officer is in the execution of his office when he is engaged in any act required or authorized to be done by him by direction of statute, regulation, order of a superior, or military usage. In United States v. Castro, 28 C.M.R. 760, 761-63 (AFBR 1959), an Air Force Court of Military Review discussed when an officer is considered to be in the execution of his office. In part the Court stated:

A summary of the circumstances of the assault offense is essential to a determi-
nation of the sufficiency of the evidence. The testimony is in accord as to the
general outline of the facts, but there is dispute on some key points. The victim,
Lieutenant John M, USAF, was dressed in civilian clothing and walking with a
female companion, Fraulein Mattson, in Bernkastel, Germany, when he ob-

served two airmen, including the accused (who was then breaking restriction), wearing fatigue clothing and drinking beer. They were on a bridge, "staggering alone" and weaving back and forth. They had their hats off and were sloppy in appearance. "All of the Germans were turning around pointing to them." (R 16) Lieutenant M approached them, asked to see their identification cards, and told them to change clothes or leave town. Lieutenant M testified that, in so doing, he handed them his own identification card and that the accused "looked at it for a while." Fraulein Mattson confirmed this. The accused's companion testified that Lieutenant M “just flashed an ID card,” while the accused denied that he saw the card, or that the officer pulled his billfold out.

The airmen acquiesced to the lieutenant's order and rejoined some other companions in their car, but after the airman who was driving had started the vehicle, the accused called to him to stop it. Accused testified that he then said that he wanted to see who the individual was who had spoken to them; his companions did not testify regarding this statement. The accused and two of the other airmen dismounted from the car and approached the lieutenant and Fraulein Mattson, who were standing in a park near the point of the original encounter. As the accused approached he called to the lieutenant—the lady quotes him as saying, "Hey, Sarge," while the accused says that he said, "Hey big shot. Got an ID card?” The lieutenant-as all agree—handed him his ID card. The accused looked at it for a short time and then, according to Lieutenant M and his companion, tried to tear or rip it up. The accused denies this attempt. All agree, however, that the lieutenant snatched the card back and that the accused then struck him in the face, one or more times, knocking him down onto some foliage.

The lieutenant and his lady both testified that the accused then kicked him in the head, the lieutenant noting that he found heel marks in his ear when he washed up. Two disinterested Germany bystanders confirmed the fact that accused used his foot, as did one of the accused's companions. The accused and another of his companions testified, however, that he just "jumped over" the fallen man. The accused and his companions left hurriedly in their car, but were identified by the license number. The lieutenant testified that, as a result of the assault, his cheek was lacerated "to the bone" and his tongue was cut, requiring three stitches.

The accused denied ever knowing that the lieutenant was in fact an officer. He testified that he did not see the identification card at the time of the first encounter, and that after Lieutenant M had told them to change clothes or leave town he began to wonder who he was, thinking that he might have been "a Communist or a German Nationalist, and just trying to agitate GIs." He denied having an opportunity in the second encounter to see more of the card than the lieutenant's picture before the latter "grabbed" it back. He denied that either he or the lieutenant was "looking for a fight" and did not know what made him strike him.

We have given consideration to whether the officer was "in execution of his office." The offense of assault upon a superior officer in execution of his office as a distinct and more serious offense than simple assault was a part of the first American Articles of War (Art. of War 1776, Sec II, Art. 5) and has been retained in all successive enactments. Winthrop discusses his phrase as follows:

"This term has sometimes been defined by the more familiar expression 'on duty.' But an officer may be in the execution of his office without being on duty in the strictly military sense, and a more accurate definition of the phrase is believed to be in the performance of an act or duty either pertaining or incident to his office, or legal and appropriate for an officer of his rank and office to perform. An officer is deemed to be in the execution of

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