Representing Guilty Clients: How do defense lawyers sleep at night?
Elements. MCM, pt. IV, 10.b.(1).
- A certain authority appointed a certain time and place of duty for the accused;
- The accused knew of that time and place; and
- The accused, without authority, failed to go to the appointed place of duty at the time prescribed.
Pleadings. The “appointed place of duty” addressed in Article 86(1) refers to aspecifically appointed place of duty rather than a general place of duty. A specification listing only the accused’s unit does not list a specific place of duty and is fatally defective. United States v. Sturkey , 50 C.M.R. 110 (A.C.M.R. 1975). See also United States v. Coleman , 34 M.J. 1020 (ACMR 1992). The appointed place need not be alleged with as much specificity in nonjudicial proceedings. United States v. Atchison , 13 M.J. 798 (A.C.M.R. 1982).
- The offense requires that the accused actually knew the appointed time and place. MCM, pt. IV, 10.c.(2). But see United States v. Adams , 63 M.J. 223 (2006) (holding the Art. 112a theory of “deliberate avoidance” satisfies the knowledge requirement for ALL Art. 86 offenses).
- The accused need not know the identity of the person appointing the place of duty. United States v. Fanning , 69 M.J. 546, (A.F.Ct.Crim.App. 2010).
- “Appointed place of duty” includes the place(s) where a restricted soldier is required to sign-in. United States v. High , 39 M.J. 82 (C.M.A. 1994).
- Ordinarily, violation of an order to report to a particular place, though charged under Article 92, constitutes no more than a failure to repair. The maximum punishment is therefore limited to that for failure to repair. United States v. Hargrove , 51 M.J. 408 (C.A.A.F. 1999) (accused guilty of failure to go to appointed place of duty, rather than disobeying a lawful order, when order was to sign-in hourly when not working); United States v. Henderson , 44 M.J. 232 (C.A.A.F. 1996) (accused’s failure to comply with staff sergeant’s order to get dressed and be at morning formation 45 minutes later constituted offense of failure to repair rather than willfully disobeying an NCO); United States v. Baldwin , 49 C.M.R. 814 (A.C.M.R. 1975); MCM, pt. IV, paragraphs 14.c.(2)(b) and 16.e.(2).
- On the other hand, if the order to return to duty was issued in performance of a proper military function and not for the purpose of increasing the punishment, the accused may be convicted and punished for both offenses. United States v. Pettersen , 17 M.J. 69 (C.M.A. 1983); see generally MCM, pt. IV, paragraph 14c(2)(a)(iii) (stating that an order must have a proper military purpose and not be designed to increase punishment).
“Without Proper Authority.” United States v. Duncan , 60 M.J. 973 (Army Ct. Crim.App. 2005). Appellant told his squad leader that he had to take his son to the hospital, and based on that false information his squad leader gave him permission to miss the formation. Appellant claimed that this evidence was a matter inconsistent with his plea. An absence from a unit, organization, or place of duty is without authority if it is preceded by false statements, false documents, or false information provided by an accused.