U.S. v. Gaston, 62 M.J. 404

Core Criminal Law Subjects: Crimes: Article 86 - Absence without Leave Pre-2019 offenses

1. in order to establish that an accused’s absence from his unit was terminated by apprehension, the facts on the record must establish that his return to military control was involuntary
2. apprehension contemplates termination of the accused’s absence in an involuntary manner; and termination otherwise is an absence ended freely and voluntarily; the MCM does not differentiate between these two classes of termination by means of particular situations, but rather by way of a broad definition for each category
3. in this case, where the dorm manager came to the accused in his dorm room and told him that his squadron was looking for him, and the accused, who was in an unauthorized absentee status, then voluntarily surrendered by going to the front of the dorm where he met his commander, the accused’s absence was terminated by his voluntary surrender rather than by apprehension; nothing in the record established that the dorm manager believed the accused had committed an offense or that the dorm manager had the authority to take him into custody; without this authority, the mere fact that the dorm manager made contact with the accused while he was on base and in his dormitory room is not sufficient to establish that the accused was under military control

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. a sentence of partial forfeitures must be stated as a whole dollar amount
2. if a sentence includes a reduction, then the forfeiture should be based on the grade to which the accused is reduced

Trial Stages: Initial Review: Action

1. the convening authority, in taking action on a sentence, may approve, disapprove, commute, or suspend the sentence in whole or in part; he may not increase the sentence adjudged by the court-martial; in the absence of evidence to the contrary, it is assumed that the convening authority followed the law set out in his Staff Judge Advocate’s review

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals may act only with respect to the findings and sentence as approved by the convening authority; in this case, the action of the Court of Criminal Appeals in imposing forfeitures greater than those approved by the convening authority improperly increased the accused’s sentence in violation of Article 66(c)

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in finding the accused guilty of a UA terminated by apprehension rather than a UA terminated by surrender was harmless as to sentencing where this change had no impact on the maximum authorized sentence in this case which was limited by the jurisdiction of a SPCM and where in arguing on sentencing, trial counsel did not focus on the nature of the accused’s return to military control

Trial Stages: Appeals: Law of the Case

1. the military judge’s error in finding the accused guilty of a UA terminated by apprehension rather than a UA terminated by surrender was harmless as to sentencing where this change had no impact on the maximum authorized sentence in this case which was limited by the jurisdiction of a SPCM and where in arguing on sentencing, trial counsel did not focus on the nature of the accused’s return to military control

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court will set aside a plea of guilty if it finds that there is a substantial basis in law and fact for questioning the guilty plea; the court will look to the entire record to determine whether facts to support a guilty plea have been established