In a published opinion in United States v. Rivaschivas, __ M.J. __, No. 20140471 (A. Ct. Crim. App. Jul. 24, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant’s desertion of the Army in 2007 occurred during a time of war, meaning that the normal five-year statute of limitations does not apply.

Writing for the panel Judge Haight explains that:

Like the Court of Military Appeals in 1953, we rely on “[a] reading of the daily newspaper accounts of the conflict in [Iraq and Afghanistan]; an appreciation of the size of the forces involved; a recognition of the efforts, both military and civilian, being expended to maintain the military operations in that area; and knowledge of other well-publicized wartime activities” to convince us “beyond any reasonable doubt that we [were] in a highly developed state of war” in 2007. Bancroft, 3 U.S.C.M.A at 5-6, 11 C.M.R. at 5-6. Furthermore, we note historical facts such as the Iraq War troop surge of 2007, the continuous and multiple large-scale deployments to both Iraq and Afghanistan of combat units going back to 2003, the well-documented number of combat fatalities and injuries in that theater of operations during those campaigns, the tremendous financial cost of our ongoing military conflicts in the Middle East, the various legislative enactments and executive orders detailing our wartime footing in Iraq and Afghanistan, the creation of military commissions with the purpose of prosecuting violations of the law of war, and judicial decisions such as Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The above is a non-exhaustive list which compels us to hold that appellant deserted the U.S. Army in a time of war for purposes of the statute of limitations under Article 43, UCMJ.

Slip op. at 5-6. The appellant deserted the Army in 2007 and remained absent until 2014. He was charged with desertion for this entire period, but pleaded guilty to only desertion until 2008. The Government did not attempt to prove desertion from 2008 to 2014, and the appellant was convicted of only desertion from 2007 to 2008.

The appellant did not affirmatively waive the five-year statute of limitations at trial, and then he asserted the statute of limitations on appeal as a basis to reverse his guilty plea. But because the CCA finds that “no time limitation applied to appellant’s war-time desertion, there was no bar to trial to waive, and consequently no inquiry [by the military judge] regarding the statute of limitations was necessary.” Slip op. at 6.

2 Responses to “The Army CCA finds that in 2007 the United States was in a de facto time of war for Article 43(a) statute of limitations purposes”

  1. stewie says:

    Oh look, a can of worms, let’s open it and see what happens. So my questions are:

    1. If we were in a time of war then, when did it end? Is is still going on?
    2. Art 43(f) lists three types of offenses that are tolled until 3 years after termination of hostilities as proclaimed by the President or joint resolution of Congress (fraud against the government, crimes connected to real/personal US property, and some contracting crimes)…so when are those three years up? Now? Not yet?
    3. 42(c) has a fairly broad definition with a 6 month cutoff. Same questions.

    I’ll hang up and listen over the radio.

  2. Concerned defender says:

    Another example of how political correctness and politics has caused a lot of confusion.  Seems the Judge and UCMJ application should be aware we are not in a technically declared war, and haven’t been since WWII.  Which is weird because we are at war in the GWOT period and I have awards to prove it.  Or, aren’t we?  Is this an armed conflict?  And against whom?  When and where is it?  Is there an end to it, really?  Yes, all very troubling cans of worms.  And it really just negates any non-wartime AWOL.  All AWOL since 2001 is really during “wartime” then, isn’t it?  
    I didn’t dig deep into the facts, but why was there even a debate on the SoL?  When did it toll, regardless of wartime definition?