United States v. Waller

Opinion of the Court

Appellant was tried by a special court-martial composed of a military judge alone at the Naval Legal Service Office, Norfolk, Virginia, on April 30 and May 2, 1984. Pursuant to his pleas, he was found guilty of unauthorized absence from September 10, 1981, to February 19, 1984, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. The military judge sentenced him to a bad-conduct discharge, confinement for 3 months, and forfeiture of $380 pay per month for 3 months. The supervisory authority1 approved the sentence but, in accordance with a pretrial agreement, suspended confinement in excess of 60 days for a period of 12 months. The Court of Military Review affirmed.

This Court granted review of the following specified issue of law:

WHETHER THE COURT-MARTIAL WAS BARRED BY THE STATUTE OF LIMITATIONS.

We hold that appellant’s court-martial for this offense was not barred by Article 43, UCMJ, 10 U.S.C. § 843.2

*267The charge sheet3 upon which appellant was brought to trial was dated June 9, 1982. It contains an amended charge of absence without authority from the USS DWIGHT D. EISENHOWER (CVN-69) from August 19, 1981, to February 19, 1984, in violation of Article 86. The original charge alleged desertion from the same ship, in violation of Article 85, UCMJ, 10 U.S.C. § 885, from August 19, 1981, with no termination date provided. Interlineations accomplished the amendment.

There are two “page threes”4 to this charge sheet (see appendix). In the trial brief submitted to the judge, trial counsel described this part of the record and the action it reflects:

As alleged by page 2 of the original charge sheet, the accused was charged with Violation of Article 85, UCMJ, Desertion. Upon his return, the charge was amended or modified to reflect a lesser included offense of Violation of Article 86, UCMJ, Unauthorized Absence from 19 August 1981 until 19 February 1984. The charge sheet consisted of the original pages one through four, plus the addition of another page three. The Article 85 charge was sworn on 29 July 1982 by PN2 R. M. Gray in front of an officer authorized to administer oath[s], and was received on 10 August 1982 by the Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69), which was within both the three year statute of limitations for desertion and the two year statute of limitations for unauthorized absence. Article 42(b) and (c), UCMJ. The referral block on the original page three, however, was never signed. Subsequent to the accused’s return, a new page three was sworn to, and then received by the Commander Officer, USS EISENHOWER (CVN 69) on 16 April 1984, a time outside of the two year statute of limitations for the unauthorized absence. (It should be noted that the Commanding Officer, USS EISENHOWER has both special and summary courts-martial convening authority jurisdiction.) The new page three reflected that the sworn charge was an “amended charge.” The charge (which is the charge before this court) was then referred to Special Court-Martial by the Commanding Officer of the EISENHOWER on 16 April 1984 by use of the referral block of the second page three.

Appellant contends here, as he did at trial, that he was court-martialed for an offense on which the statute of limitations had run. See Art. 43(c). He cites the decisions of this Court in United States v. Arsneault, 6 M.J. 182 (C.M.A. 1979), and United States v. Rodgers, 8 U.S.C.M.A. 226, 24 C.M.R. 36 (1957). He asserts that the amended absence charge was different *268in nature from the original desertion charge and that the receipt of such an amended charge after the period of limitation had expired was untimely. See generally para. 215<i, Manual for Courts-Martial, United States, 1969 (Revised edition).

The particular holding in Rodgers is that an accused must be advised of his right to assert a bar to his trial where the charge sheet on which he is tried shows that the statute of limitations has run. The existence of a second timely-received charge sheet, which is not referred to trial but which is included elsewhere in the record, does not preclude the need for such advice. The clear implication is that trial on the sole basis of the referral of an untimely-received charge sheet is barred by Article 43. United States v. Arsneault, supra. However, trial on the basis of a referral of a timely-received charge sheet is not barred simply because a second untimely-received charge sheet exists. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985): United States v. Rodgers, supra at 230-31, 24 C.M.R. at 40-41.

This is not a case involving multiple charge sheets. Cf. United States v. Arsneault, supra; United States v. French, 9 U.S.C.M.A. 57, 25 C.M.R. 319 (1958); United States v. Rodgers, supra. It is a case of a single charge sheet with an additional page three. See United States v. Spann, 10 U.S.C.M.A. 410, 27 C.M.R. 484 (1959). Moreover, this amendment, which actually favored appellant, did not change the nature of the originally charged offense. It reduced the seriousness of the original charge by alleging a lesser-included offense. See United States v. Brown, 4 U.S.C.M.A. 683, 688, 16 C.M.R. 257, 262 (1954). The inclusion of the additional page three within the original charge sheet suggests only that permissible amendments to the original charge were recorded in a somewhat irregular manner. Cf. para. 215, Manual, supra. The actual referral of the package as a whole undermines any suggestion that the statute of limitations was violated. United States v. Spann, supra.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

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