Number 4 is one of those grand announcements that comes across perhaps as a “duh.”

In United States v. Rivaschivas, 74 M.J. 758 (ACCA 2015), the Army CCA holds that for purposes for Article 43’s statute of limitations provision, the United States was at war in 2007. For all the veterans that were getting shelled, shot at, and serving overseas during 2007, this seems sort of obvious. And it was obvious to Army CCA as well.

Appellant went UA in December 2007. He remained in unauthorized absence till January 2014. Upon his return, he was charged with desertion. Pleading by exceptions and substitutions at his court-martial, he pled guilty to desertion from December 2007 to February 2008, when he claimed he attempted to turn himself in.

For whatever reason, the government did not attempt to prove up the longer period. As the opinion points out though, why would they? The maximum punishment for desertion is not tied to length of time. So the government gets its charged offense. The military judge accepted the plea and let’s call it a day.

But on appeal, Appellant raises, for the first time, the issue of the statute of limitations, claiming the military judge abused his discretion by accepting his guilty plea without a knowing and affirmative waiver of the statute of limitations. Arguing that the standard five-year statute of limitations applies, Appellant argues that his desertion ending in February 2008 was barred from prosecution in 2014.

Of course, a desertion during time of war has no statute of limitations under Article 43. ACCA reaches back to the Korean and Vietnam conflicts to find precedent that “time of war” for purposes of Article 43 is a functional test, a matter of “practically, of broad realism, as distinguished from narrow legalism” (apparently as opposed to CAAF’s view of appellate jurisdiction which is all about narrow legalism (see Top Ten Story #5)). Adopting a test of de facto war as opposed to a congressionally declared de jure war, ACCA looked to a number of factors including the nature of the conflict, the manner in which it is carried on, the movement to and presence of large numbers of personnel on the battlefield, the casualties involved, the sacrifices required, the drafting of recruits, national emergency legislation, executive orders, and the expenditure of large sums to maintain armed forces in the theater of operations.

Unsurprisingly, United States combat operations in Iraq and Afghanistan satisfied ACCA that there existed a de facto state of war in 2007. Accordingly, ACCA ruled that there was no time limitation under Article 43 and Appellant had no statute of limitations to waive.

Footnote 2 is what gets me. In it, ACCA acknowledges United States v. Averette, 19 C.M.A. 363 (1970) (as my first boss and mentor Nels Kelstrom would have said, “it’s in the red books, so it must be good.”), where the Court of Military Appeals held that the phrase “in time of war” for jurisdictional purposes under Article 2 applies only to war declared by Congress and did not apply to the conflict in Vietnam. Wasn’t the whole point of the UCMJ that it is “uniform?” It’s its first name after all. But the concept of a state of war varies based on article? Doesn’t strike me as a uniform way to interrupt the statutory scheme. Though it is hard to argue with the fact, as ACCA quotes the old cases, that the newspapers certainly make it sound like we are at war. And to those that served, congressional declarations don’t change the situation on the ground.

One Response to “Top Ten Military Justice Stories of 2015 – #4: Time of War under Article 43, UCMJ”

  1. Concerned Defender says:

    I’ll have to remind the Bergdahl fan club of this fact, when they shout “We haven’t been in a declared war since WWII….” and other nonsense.  The political fictions of declared war versus “contingency operations” or “armed conflicts” have no business in the courtroom or in real life, when thousands of Soldiers are dying fighting declared hostile enemies on foreign soil and getting wartime decorations like Silver Stars and BSMs with V device and MOHs.