Appellate Court Sets Aside Conviction for 44-Year Desertion Offense

The Navy-Marine Corps Court of Criminal Appeals recently decided the case of United States v. Miller. On its face, the case seems rather straight-forward. Antonio Miller served honorably for a four-year enlistment in the United States Marine Corps from 1972 to 1976. Upon his discharge, Miller enlisted in the United States Navy. Almost two years into his enlistment, he left his duty station in Norfolk, Virginia, and traveled without permission to Tennessee. A few days later, Miller went to a reserve station in Tennessee and turned himself in. The Navy booked him a flight back to Norfolk and told him to go turn himself back in to his command. Instead, Miller flew to Florida, where his brother lived. Shortly after his arrival, civilian authorities apprehended Miller and sent him to a Navy command in Orlando. The military officials there again ordered him to return to his unit in Norfolk, but Miller again went to see his brother.

Forty-four years later, in May 2022, Miller encountered civilian police. He gave them his brother’s name and identification, but they eventually learned his true identity and took him into custody. Miller was taken back to Norfolk and charged with desertion and obstruction of justice. He agreed to plead guilty to the desertion charge. The obstruction offense was dismissed as part of the agreement. At trial, Miller pled guilty, his plea was accepted, and he was found guilty of desertion and sentenced to reduction to E-1, two months confinement, and a bad-conduct discharge. On appeal, Miller’s case was submitted without assignments of error.

Upon reviewing the case, however, the Navy-Marine Corps appellate court ordered the parties to write briefs on whether the statute of limitations barred a conviction for desertion and whether Miller had waived the issue at trial. In its decision, the Court noted that the offense of desertion is not a continuing offense. Once a servicemember leaves their duty station with the intent not to return, they have committed the offense of desertion no matter how long they remain away. In 1978, the statute of limitations for desertion was three years. This means that any charge would have had to have been preferred by 1981 in order to be viable. At the time, there were only three things that could toll, or pause, that three-year time period: 1) being absent from a territory where the United States had the authority to apprehend him; 2) being in the custody of civilian authorities; or 3) being in the hands of the enemy. Between April of 1972, when he left Norfolk, and April of 1981 when the three-year period ended, none of these events occurred.

The appellate court determined that the statute of limitations had run on this offense. It further noted that even if it had not run, the military judge had an obligation to raise the issue as a possible defense if there was a possibility that it could apply. Since no one at trial seemed aware of the statute of limitations issue, and the military judge had not informed Miller about it, the Court set the conviction aside. Although the Court authorized a rehearing, the Government still will not be able to proceed on the desertion offense at a new trial. The Government can revive the obstruction charge if it wants to bring Miller back on active duty to try him again, but they will most likely separate him administratively and dismiss the court-martial charges.

Interestingly, in 1986, Congress amended the statute of limitations to make it a five-year period for desertion and to include one more way to toll the statute of limitations–periods in which the accused is absent without authority. So, a statute of limitations defense will not work for desertion or AWOL charges beginning in 1986 or later. If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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