AFCCA today issued a 4-page published per curiam opinion to hold that an Article 86 offense doesn’t require the identification of the particular authority who appointed a certain time and place of duty for the accused.  United States v. Fanning, __ M.J. ___, No. ACM S3160 (A.F. Ct. Crim. App. June 3, 2010) (per curiam).

A1C Fanning was charged with and pleaded guilty to, among other offenses, two Article 86 specs.  During the providence inquiry, he apparently stated that an unidentified individual has assigned him to perform duties at the Elmendorf Air Force Base Firehouse Number 3 on 26 July 2008.  He reported late and then left way early, giving rise to the 86 specs.

According to the MCM, both a failure to go and a going from spec includes an element that “a certain authority appointed a certain time and place of duty for the accused.”  Manual for Courts-Martial, United States, Pt. IV, ¶ 10.b.(1) , (2) (2008 ed.).  Here, the providence inquiry didn’t identify a “certain” authority who prescribed A1C Fanning’s place of duty.

It doesn’t matter, held AFCCA.  “As a matter of first impression, we find that the appointing authority’s identity is not an essential element for the aforementioned absence without leave offenses.  Since time immemorial, these offenses have required only that a certain authority appoint a certain time and place of duty for the accused, not a certain named authority.”  Id., slip op. at 3.  “The appellant acknowledged that someone with authority assigned him duties to perform at Elmendorf AFB Firehouse Number 3 on 26 July 2008, and that on that day he reported for duty late and shortly thereafter left his place of duty without authority.  It is immaterial whether or not the appellant knew the identity of the appointing authority–all that was required was the appellant’s knowledge that someone with authority appointed the time and duty location for the appellant.”  Id.

5 Responses to “AFCCA holds that 86 offenses need not designate who appointed a certain time and place of duty”

  1. Anonymous says:

    Probably true for adequacy of providency, not sure it is true for a contested case.

  2. umm says:

    Since 1928 is since “time immemorial?” I think it was memorialized as 1928.

  3. JimmyMac says:

    I wonder whether the identity of the appointing authority would be an essential element if the appointing authority was POTUS/CinC? Just trying to open another topic for a “birther” argument!

  4. soonergrunt says:

    Two things–
    First, you’re evil, but in a good way.
    Second, doesn’t this case actually touch on the issues that are actually at issue with LTC Lakin’s failure to deploy as ordered?

  5. JimmyMac says:

    If we hear that Mr. Jensen (LTC Lakin’s Individual Civilian Counsel) raises this issue, we then know he reads this blog! Sweet counterintelligence operation!