Article 32

[badapple40]

Just to make sure, What conclusions and recommendations are authorized to be made by me the investigating officer? and civilian witnesses can not be compelled to testify at an article 32 hearing, right? (As stated in the R.C.M Rule 405 (g)(2)(B))

RCM 405(j)(2) governs the contents of the reports.

(j) Report of investigation.
( 2 ) Contents. The report of investigation shall include:
(A) A statement of names and organizations or addresses of defense counsel and whether defense counsel was present throughout the taking of evidence,
or if not present the reason why;
(B) The substance of the testimony taken on both sides, including any stipulated testimony;
(C) Any other statements, documents, or matters considered by the investigating officer, or recitals of the substance or nature of such evidence;
(D) A statement of any reasonable grounds for belief that the accused was not mentally responsible for the offense or was not competent to participate
in the defense during the investigation;
(E) A statement whether the essential witnesses will be available at the time anticipated for trial and the reasons why any essential witness may not then
be available;
(F) An explanation of any delays in the investigation;
(G) The investigating officer’s conclusion whether the charges and specifications are in proper form;
(H) The investigating officer’s conclusion whether reasonable grounds exist to believe that the accused committed the offenses alleged; and
(I) The recommendations of the investigating officer, including disposition.

Discussion
For example, the investigating officer may recommend that
the charges and specifications be amended or that additional
charges be preferred. See R.C.M. 306 and 401 concerning other
possible dispositions.
See Appendix 5 for a sample of the Investigating Officer’s
Report (DD Form 457).

You would want to include some snyopsis of the witness testimony or other evidence to support each charge and specification. Given that being gone over 30 days is an aggravator (see MCM) that extends the offense's punishment range to 1 year + a dishonorable discharge, you would want to include the exact dates of absense and note that it was over 30 days.

Look at whether the accused's AWOL was apprehended by apprehension (see MCM at page IV-15) (d) -- that ups the maximum to 18 months confinement + dishonorable discharge.

Possession of under 30 grams of marijuana is punishable by up to a dishonorable discharge and 2 years confinement. (MCM page IV-57).

The reality, however, is that if this guy goes in front of a judge alone or even in front of panel members, he's likely to get between 4 and 9 months confinement (trust me, its experience) and a BCD. Thats despite the fact that he could face a maximum of 3 years and a dishonorable discharge. And there is always some reason they do it (go AWOL) that you may or may not know about.

You can get him kicked at a special court-martial empowered to adjudge a BCD. I'm not saying that this guy shouldn't get a kick -- but I'd be surprised -- very surprised, if he got a dishonorable discharge.

Were I authoring the 32 report, I would go about the following as to the disposition:

There is sufficient probative evidence indicating PFC _____ did commit an offense under both Article 112a and Article 86 and probable cause to go forward with a general court-martial under both charges. The MCM caps punishment in this case at three years, forfeiture of all pay and allowances, and a dishonorable discharge. For purposes of convenience, and acknowledging that members or a military judge are likely to sentence the PFC to between four months and a year of confinement and a bad conduct discharge, it may be advisable to proceed with a referral to a special court-martial empowered to adjudge a bad conduct discharge, or, if there are other factors unknown to the investigating officer, such as a pattern of misconduct prior PFC ___'s AWOL or the requirement of counseling for insufficient performance of military duties that would be likely to aggravate the punishment, to refer the matter to a general court-martial.


If you had him AWOL terminated by apprehension, there may well be grounds to support a charge of desertion. In that case, I would suggest you ask the convening authority or other competent authority (the officer that initially preferred charges) to amend the charges to be desertion as opposed to AWOL, and, in that instance, would agree that a general court-martial is appropriate (since he would be likely to get more than a year and a dishonorable discharge).

The legal office (SJA) will always suggest to you that they'll nail the accused to the wall and the defense will always suggest that they are making a mountain out of a molehill. Ideally, you want to weigh the facts of the case, the age and maturity of the offender, and other potential mitigating factors, with aggravating factors (both under the MCM, and otherwise -- things like what the guy did before he went AWOL, what he did after, medals, deployments, awards, counseling, prior problems -- like LORs, LOAs, Article 15s), put all of that in the report, and give the convening authority an unbiased look at what both sides are saying and what the facts of the case are so he or she can make an informed decision as to disposition.

It is my opinion, and were I the military judge in the case absent any other information, and assuming you have a typical soldier, perhaps with a little bit in his counseling packet of a few problems, but otherwise straightforward, and given the age, maturity, and experience of the typical PFC, I would give the guy 6 months and a BCD.

There isn't really a need to go to a general court-martial for that. Assuming, though, that they terminated the AWOL by apprehension, and there is some indication that he or she intended to desert (and keep in mind intent to stay away), and a desertion charge was brought in addition to the drugs, I'd hammer him or her with a year and a half and a dishonorable discharge.

Look at Article 85 and see if thats an appropriate amendment.

The MCM discussion provides:

(iii) The intent to remain away permanently may be established by circumstantial evidence. Among the circumstances from which an inference
may be drawn that an accused intended to remain absent permanently or; that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused’s station; that the
accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused’s unit, ship, or with military service; that the accused made remarks indicating an
intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example,
financial arrangements); or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the United States. On the other hand, the following are included in the circumstances which may
tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal enlists or accepts an appointment in the same or
another armed force, the person’s presence in the military service under such an enlistment or appointment is not a return to military control and does not
terminate any desertion or absence without authority from the earlier unit or organization, unless the facts of the earlier period of service are known to military authorities. If a person, while in desertion, enlists or accepts an appointment in the same or another armed force, and deserts while serving the enlistment or appointment, the person may be tried and convicted for each desertion.

(see MCM IV-11). Since AWOL is a lesser included offense of desertion, even if the desertion charge is not proven at trial, the accused can still be convicted on the AWOL.

 

[rhmorris]

Thanks

I truely appreciate your help. YOu have made this investagation so much easier and run smoother. I am glad it is over now.

 

[badapple40]

Roger. I'd be curious to see your final work product. Mind e-mailing me a copy? badapplelaw@hotmail.com