The recent unpublished opinion in the Army case of United States v. Lovell, No. 2011006 (A.Ct.Crim.App. Mar. 31, 2014) (link to slip op.) is a fascinating read.

Specialist Lovell pleaded guilty at a special court-martial (without the benefit of a pretrial agreement) to desertion with intent to shirk important service, unauthorized absence, and missing movement by design, in violation of Articles 85, 86, and 87. He then elected to be sentenced by a panel of officer members, and was adjudged a punishment of confinement for 6 months, reduction to E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

The facts were that:

Appellant deployed with his unit to Iraq from March 2004 through March 2005. When he returned, appellant found his wife had developed an illness which caused seizures and resulted in her inability to drive a car. Appellant asserted that if he deployed again, he feared his wife would be unable to care for their two children, a five-year-old and an eighteen-month-old. Unable to obtain a hardship discharge before his next scheduled deployment, appellant chose to absent himself without leave from his unit on 18 September 2006, thereby missing movement on 1 October 2006, and then remained in desertion until 13 July 2011.

Slip op. at 2. It’s reasonable to feel at least a little sympathy for the situation the appellant faced in 2006. However, the appellant squandered that sympathy when he deserted for the following five years. For the Government, this case was as easy as it gets.

But during voir dire of the panel that determined the sentence, one member (a colonel) said, “I filled out my questionnaire and there’s a matter on there that the court may want to consider and I think it may be grounds for challenge.” Slip op. at 2. The matter was that the Colonel obtained conscientious objector status in 1992. The member was not asked any further questions.

Rather than simply ignore the Colonel’s conscientious objector status (and focus instead on the appellant’s half-decade of desertion) the Government counsel challenged the Colonel for cause, stating:

[H]e’s a conscientious objector. I believe that will apparently skew his — his view of an absence-type offense, especially here where the absence involves what is a to-shirk-hazardous — or shirk important service in Iraq and missing movement and that movement we will explain was to Iraq, that he will unfairly mitigate that — that offense based on his belief he brought into the courtroom today.

Slip op. at 3. The Defense objected but the military judge granted the challenge. That is, “the military judge, without explanation, granted the government’s challenge.” Slip op. at 4 (emphasis added).

In this absence of a record, it’s unsurprising that the CCA finds an abuse of discretion in granting the challenge:

While the law provides a map for this court to follow in evaluating the military judge’s decision regarding a challenge for cause, here we find obstacles the military judge has left in our path. It is not clear from the record whether the military judge granted the challenge based on implied bias or actual bias. She made no assessment of the validity of the government’s position on the record and was equally silent regarding the demeanor of COL WN. In fact, the military judge made no comment at all regarding her decision to grant the causal challenge . We are therefore left to review whether the military judge abused her discretion without any explanation as to how or why that discretion was exercised.

The record indicates COL WN served in the military for over 20 years prior to the time of this court-martial. He was designated a conscientious objector in 1992. The specifics of his designation and the nature of his beliefs are not contained in the record. The government concludes that conscientious objector status alone means COL WN may not serve as a panel member on absence-type related cases because he cannot objectively consider the government’s argument and that he will “mitigate” appellant’s misconduct. While this is certainly one possibility, it is equally likely that COL WN, having gone through a rigorous conscientious objector vetting process, successfully serving over twenty years in the Army, attaining the rank of colonel, and even possibly deploying with the Army might be less favorable towards an accused who refused to follow orders and took it upon himself to absent himself from the military and not deploy.

While we are instructed to give deference to the military judge’s assessment, we have nothing in the record upon which to give deference. The trial judge’s failure to note the reasons for her decision on the record renders it impossible for us to determine the basis for her decision and defer to her judgment. We are also not persuaded by the government’s argument regarding the self-evident lack of objectivity possessed by any conscientious objector. We, therefore, conclude the military judge abused her discretion by granting the challenge for cause.

Slip op. at 7-8.

However, the CCA also notes that the appellant was charged with missing movement by neglect, but that during the plea inquiry he “described knowing full well his unit was deploying and that he intended to miss movement to take care of his young children and ill wife.” Slip op. at 4. After the appellant disavowed the defense of necessity, “the military judge then asked appellant whether he was guilty of missing movement by design rather than by neglect.” Slip op. at 4. The appellant agreed, and he eventually pleaded guilty to the greater offense of missing movement by design.

The CCA is “troubled by the fact that appellant’s plea to a more severe offense was initiated by the military judge.” Slip op. at 8. The CCA determines that “the military judge abused her discretion by not accepting appellant’s original plea to missing movement through neglect,” and it avoids discussion of whether the judge abandoned her impartial role in the process. Slip op. at 8. But the CCA notes “defense counsel’s collusion in this unwarranted amendment.” Slip op. at 9 (emphasis added). The court also notes the contribution of the trial counsel who, “unbeknownst to the military judge, modified the charge sheet striking ‘through neglect’ and writing in ‘by design’ for the Specification of Charge III.” Slip op. at 5 (emphasis added).

The court then concludes:

Ordinarily, in a case such as this, we would remand for a sentence rehearing. Furthermore, if we were to remand for a rehearing, it would be on a lesser offense than originally before the panel. Accordingly, out of judicial economy, we reassess and do so in a way that moots any further claim of prejudice.

The findings of guilty of Charge I and its Specification and Charge II and its specification are AFFIRMED. As to Charge III and its Specification, we AFFIRM only a finding of guilty to the lesser included offense of missing movement through neglect.

Reassessing the sentence based on the noted errors and the amended findings of guilty, we AFFIRM a sentence of no punishment.

Slip op. at 9 (emphasis added).

12 Responses to “Errors that lead to a sentence of no punishment (for a five year desertion)”

  1. Cloudesley Shovell says:

    Just a couple observations on absence and desertion cases generally.  In my limited experience, panels tend to be fairly lenient with these cases if two conditions are met.  First, the accused has some grounds (family-related are best) other than “I’m sick of the military” or “I don’t want to deploy” for being absent.  Second, the gov’t has unclean hands.
    I can only assume that the accused here, Lovell, has long since been administratively separated, otherwise this ultimate sentence presents some interesting back pay and status issues (how much more time on his enlistment?).  It is my personal opinion that the needs of good order and discipline, particularly in cases with mitigating circumstances, are often served by prompt administrative discharges.
    Kind regards,

  2. Another AF JAG says:

    There should be backpay issues at play. Army would not administratively discharge someone who received a punitive discharge.  I would expect he would get paid for whatever time he had on his enlistment when he deserted (when he deserted it would be bad time and I believe would toll his service committment).  Once he was back in military custody, I would expect that they would re-compute his new separation date.  Once he hits his separation date the government stops paying.
    Not an expert in such things … but I would expect Lovell to get a nice little bonus at the end of the day.

  3. Zachary D Spilman says:

    DFAS makes the final determination on pay and allowances owed, and they do so after any rehearing that may occur (not relevant in this case, unless CAAF reverses the CCA). While no pay and allowances are due after the expiration of an enlistment, Another AF JAG rightly points out that an enlistment is tolled by an unauthorized absence. Pay and allowances are owed for any period of confinement served (assuming automatic or adjudged forfeitures). Additionally, the appellant was almost certainly placed on involuntary appellate leave, and pay and allowances are owed for this time but they are offset by any income that he earned. There’s also the possibility of remedial promotion consideration.

    What I’m not sure about – but suspect to be the case – is that Appellant’s enlistment ended while he was on involuntary appellate leave. So he will be discharged for expiration of his enlistment, not for misconduct.

    I see your point about leniency in desertion cases Cloudesley Shovell, but the panel wasn’t so lenient in this case. That may be because there are aggravating not discussed in the CCA’s opinion.

    But in the end the sentence of no punishment isn’t the product of leniency or compassion. It’s the product of a trial counsel who failed to protect the record.

  4. Cloudesley Shovell says:

    Thanks for the followup.  I knew once how DFAS worked those back pay issues; I’ve long since forgotten what the standard is that they apply.  Good point also on the enlistment ending while on appellate leave.
    In any case, I personally view the panel’s sentence as lenient.  I’ve seen even lower sentences for longer periods (over ten years). 

  5. stewie says:

    I understand the point of the TC “protecting the record” but this was a case where the MJ should have never messed up the record to begin with…twice. I have a hard time blaming the junior, less experienced person for the mistakes of the senior, more experienced person.

  6. Tami says:

    Two things will happen:  (1) Under Article 75, he will be entitled to backpay as an E-4 for whatever amount of confinement he served, minus amounts paid through deferment and/or waiver of automatic forfeitures; and (2) recalculation of his ETS to make up for lost time due to desertion.  I would think under the circumstances, his unit will have to chapter him.  I also think under the circumstances, the unit can’t include missing movement by design, since he was acquitted of this offense by ACCA.  And unless HQDA approves pursual of an OTH, he’ll walk away with a general discharge.
    Why the DC allowed the client to admit to missing movement by design is beyond me.  There are times when DCs need to nudge their clients and tell them not to say certain things.  This was one of those times.  ACCA saved that DC from an IAC claim for these proceedings, and hopefully for future, if any, proceedings too.  And the MJ shouldn’t have allowed that conversation to happen either.

  7. stewie says:

    I can only guess that the DC/client wanted the deal, thought it was a very good deal given the length of confinement v the length of AWOL/Desertion plus missing a deployment, and thus just did whatever could be done to get through providency.  Not defending it as correct, but I understand, I think, why the DC allowed the client to admit to a greater charge.

  8. k fischer says:

    There was no pretrial agreement in this case.  
    The exchange between the MJ and the TC regarding changing the charge on the charge sheet on page 5 harkened me back to the Government reps at a certain post when COL(R) Dick Gordon was a military judge and I was a TDS counsel.   In fact, I recall a trial where as a Defense counsel I asked that my client be maxed out under a BCDSPC and the Government requested jail time or a punitive discharge in a deal where the CA agreed to disapprove any adjudged confinement if my client received a punitive discharge.  The conversation that occurred after that was priceless, although I cannot find the transcripts of the trial.  When he read the quantum, he understood why I argued the way I did.

  9. phil cave says:

    If this was a naked plea, then there’s no incentive to make sure he gets through providency, is there?
    So, unlike a PTA, if the MJ had accepted the plea to the lesser offense, the gov. was then in the position of deciding to go forward with the greater offense, which it was entitled to do in the absence of a plea.  Or they give up and dismiss the greater offense, and arguably can’t put on the greater offense in aggravation, or withdraw the greater offense and save it for later.

  10. Zeke says:

    I’ve been arguing to AFCCA that it should order rehearings rather than reassessing a sentence itself unless: 1) the record captures the individual Article 25(d)(2) characteristics of each member, i.e., their ages, education, training, experiences, lengths of service, and judicial temperaments, and, 2) the court can determine “with confidence” how those factors would have impacted the sentence the members would have adjudged absent the error.  There’s been no bite on that line yet; at least not for me.  So, it surprises me that the ACCA, at least in this case, was so interested in one peculiar characteristic from one individual excluded member’s service record.  It surprises me even more that the one peculiar characteristic was enough to make the CCA lose all confidence in whether the members would have sentenced the accused to any punishment at all had that particular member remained on the panel.

  11. stewie says:

    Ah, I missed that…well then…ahem…no defense for the DC then.

  12. Brain Lc says:

    Reading between the lines, I’m guessing that the MJ believed (mistakenly) she couldn’t accept a guilty plea to neglect, when the Care inquiry indicated it was by design.
    not that it’s much better….