COURT-MARTIAL ORDER No. 1-1944 January - June 1944 With Index UNIVERSITY OF LAW LIBRARY UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON: 1944 COURT MARTIAL ORDER NO. 1-1944 JANUARY-JUNE 1944 1 "Absence from station and duty without leave" a lesser included : offense of "Desertion." A general court martial convicted an accused of Charge I, "Desertion in time of war," Charge II, "Breaking arrest," and Charge III, "Absence from station and duty without leave." The specification under Charge I alleged that the accused deserted from Pearl Harbor on 9 December 1943 and was apprehended in San Francisco on 3 January 1944. The specification under Charge III alleged that the accused was absent from his station and duty without leave for a period of 25 days commencing on 9 December 1943, and further specified that after apprehension by the Shore Patrol in San Francisco he was "delivered to the U. S. naval receiving station, Pearl Harbor * on January 15, 1944." The pleadings on their face indicated that the specifications under Charges I and III covered the same period of absence. Both "Desertion" and "Absence from station and duty without leave" should not be charged for the same period of unauthorized absence since the latter charge can be found proved as a lesser included offense of the former. It is improper to convict of both offenses under separate charges where the period of absence is the same (C.M.O. 10, 1925, 9; Naval Digest, p. 168). Accordingly, the findings on Charge III and the specification thereunder, and the action of the convening authority thereon were set aside. (File: MM-Smith, Garrett/A17-20, 22 Apr. 1944.) 2 [C. M. O. 1-1944]PR 19 54 "Absence from station and duty without leave" a separate and distinct offense from "Breaking arrest." The specification under the general court-martial charge of "Absence from station and duty without leave" alleged that the accused on a stated date, while a prisoner at large by lawful order of his commanding officer, absented himself without proper authority from his station and duty and the U. S. naval service. The specification under "Breaking arrest" alleged that the accused, on the same date, broke his arrest. Upon a plea of guilty, he was convicted of both charges. In his action on the record, the convening authority commented: "Both charges arose out of the same set of facts and occurred at the same time and place and the two charges were obviously preferred in order to provide for contingencies of proof. In accordance with established policy, the proceedings and findings on the specification of the second charge and on the second charge, breaking arrest, are hereby set aside so that there may never be any question that the accused was twice punished for the same offense." The offense of breaking arrest is completed at the instant the accused escapes from his confinement or the limits of his arrest irrespective of whether or not he ever becomes absent from station and duty without leave. Therefore, where the accused absents himself without leave from his station and duty and the naval service, such absence constitutes a separate and distinct offense from that of breaking arrest, and the statement of the convening authority to the effect that the two charges were preferred to provide for contingencies of proof would appear to be incorrect (C.M.O. 3, 1921, 13-14). Subject to the foregoing remarks, the proceedings, findings, sentence, and action of the convening authority thereon were held to be legal. (File: MM-Bibeault, Robert A./A17-20, 12 Apr. 1944.) "Absence from station and duty without leave": failure to specify time of commission of offense prejudicial to rights of accused. The specification of the general court-martial charge of "Absence from station and duty without leave," to which the accused made no objection and pleaded guilty, failed to specify the time of the commission of the offense. The time and place of the commission of the offense must be averred in the specification (N. C. & B., sec. 35). However, if the accused makes no objection to the specification and pleads guilty, a finding by the court that a specification, defective because of failure to allege some particular fact or element essential to the offense but containing sufficient information fairly to apprise the accused of the offense intended to be charged, is proved will generally cure such defect (N. C. & B., sec. 39). However, an exception to this rule exists when it appears from the record that the substantial rights of the accused were in fact prejudiced thereby (N. C. & B., sec. 40). In this case no date was stated by which the offense could be identified. This omission precludes the accused from successfully interposing a plea of former jeopardy should he again be brought to trial for the same unauthorized absence. Thereby, the substantial rights of the accused were prejudiced (C.M.O. 2, 1940, 153). Accordingly, the findings on the charge and the specification thereunder were set aside. (File: MM-Sutton, William R./A17–20, 6 Jan. 1944.) "Absence from station and duty without leave": surrender to station other than one to which assigned. The specification under which an accused was convicted by deck court alleged that he was absent from his station and duty without authority for a period of about nine days. The evidence adduced showed that the accused was granted permission to make a long distance telephone call on the dock at about 1145 and, while waiting for the telephone operator to make the necessary contact, fell asleep. Upon awakening he learned his ship had sailed and immediately proceeded to a Port Director nearby where he reported at 1930 on the same date. Therefore, according to the evidence, the accused was absent from naval jurisdiction only for a period of about eight hours. Inasmuch as the duration of absence determines the gravity of the offense and not the elements thereof, and in order that the accused may not stand convicted of an offense of a more aggravated nature than that actually committed, the period of his unauthorized absence was considered as having ter |