2008 edition - Fort Sam Houston - U.S. Army

(9) Special conspiracies under Article 134. This subparagraph
is taken from paragraph 160 of MCM, 1969 (Rev.); United States
v. Chapman, 10 C.M.R. 306 (A.B.R. 1953).
6. Article 82—Solicitation
b. Elements. Solicitation under Article 82 has long been recognized
as a specific intent offense. See paragraph 161 of MCM,
1969 (Rev.); paragraph 161 of MCM, 1951. See generally United
States v. Mitchell, 15 M.J. 214 (C.M.A. 1983); United States v.
Benton, 7 M.J. 606 (N.C.M.R. 1979). It has been added as an
element for clarity.
c. Explanation. This paragraph is taken from paragraph 161 of
MCM, 1969 (Rev.), United States v. Wysong, 9 U.S.C.M.A. 248,
26 C.M.R. 29 (1958); United States v. Gentry, 8 U.S.C.M.A. 14,
23 C.M.R. 238 (1957); United States v. Benton, 7 M.J. 606
(N.C.M.R. 1979).
7. Article 83—Fraudulent enlistment,
appointment, or separation
c. Explanation. This paragraph is based on paragraph 162 of
MCM, 1969 (Rev.); United States v. Danley, 21 U.S.C.M.A. 486,
4 5 C . M . R . 2 6 0 ( 1 9 7 2 ) . S e e W i c k h a m v . H a l l , 1 2 M . J . 1 4 5
(C.M.A. 1981).
e. Maximum Punishment. The reference to membership in, association
with, or activities in connection with organizations, associa
t i o n s , e t c . , f o u n d i n t h e T a b l e o f M a x i m u m P u n i s h m e n t s ,
paragraph 127 c of MCM, 1969 (Rev.), for Article 83, was deleted
as unnecessary. The maximum punishment for all fraudulent
enlistment cases was then standardized.
8. Article 84—Effecting unlawful enlistment,
appointment, or separation
c. Explanation. This paragraph is taken from paragraph 163 of
MCM, 1969 (Rev.). See also United States v. Hightower, 5 M.J.
717 (A.C.M.R. 1978).
e. Maximum punishment. The reference to membership in, with,
or activities in connection with organizations, associations, etc.,
found in the Table of Maximum Punishments, paragraph 127c of
MCM, 1969 (Rev.), or Article 84, was deleted as unnecessary.
The maximum punishment for all cases was then standardized.
9. Article 85—Desertion
c. Explanation.
(1) Desertion with intent to remain away permanently.
(a) In general. This subparagraph is taken from paragraph
164a of MCM, 1969 (Rev.).
(b) Absence without authority-inception, duration, termination.
See the Analysis, paragraph 10.
(c) Intent to remain away permanently. This subparagraph is
taken from paragraph 164a of MCM, 1969 (Rev.). The last sentence
is based on United States v. Cothern, 8 U.S.C.M.A. 158, 23
C.M.R. 382 (1957).
(d) Effect of enlistment or appointment in the same or a
different armed force. This subparagraph is based on paragraph
164 a of MCM, 1969 (Rev.); United States v. Huff, 7 U.S.C.M.A.
247, 22 C.M.R. 37 (1956).
ANALYSIS OF PUNITIVE ARTICLES
Pun. Art. 86
(2) Quitting unit, organization, or place of duty with intent to
avoid hazardous duty or to shirk important service.
(a) Hazardous duty or important service. This subparagraph
is taken from paragraph 164 a of MCM, 1969 (Rev.). See also
United States v. Smith, 18 U.S.C.M.A. 46, 39 C.M.R. 46 (1968);
U n i t e d S t a t e s v . D e l l e r , 3 U . S . C . M . A . 4 0 9 , 1 2 C . M . R . 1 6 5
(1953).
(b) Quits. This subparagraph is based on United States v.
Bondar , 2 U.S.C.M.A. 357, 8 C.M.R. 157 (1953).
(c) Actual Knowledge. This subparagraph is based on United
States v. Stabler, 4 U.S.C.M.A. 125, 15 C.M.R. 125 (1954) and
rejects the view of paragraph 164 a of MCM, 1969 (Rev.) that
constructive knowledge would suffice. To avoid confusion, the
“constructive knowledge” language has been replaced with the
statement that actual knowledge may be proved by circumstantial
evidence. See United States v. Curtin, 9 U.S.C.M.A. 427, 26
C.M.R. 207 (1958).
(3) Attempting to desert. This subparagraph is taken from paragraph
164 b of MCM, 1969 (Rev.).
( 4 ) P r i s o n e r w i t h e x e c u t e d p u n i t i v e d i s c h a r g e . T h i s s u b -
paragraph is taken from paragraphs 164 a and 165 of MCM, 1969
(Rev.).
e. Maximum punishment. As indicated in the Analysis, paragraph
4, attempts, the punishment for attempted desertion was made
uniform. As a result, attempted desertion- “other cases of”- now
conforms with the punishment for “desertion- other cases of.”
This amounts to an increase in the maximum punishment from
confinement for one year to either two or three years, depending
on the nature of termination.
10. Article 86—Absence without leave
c. Explanation.
(1) In general. This subparagraph is taken from paragraph 165
of MCM, 1969 (Rev.).
(2) Actual knowledge. This subparagraph clarifies that the accused
must have in fact known of the time and place of duty to
be guilty of a violation of Article 86(1) or (2). Cf. United States
v. Chandler, 23 U.S.C.M.A. 193, 48 C.M.R. 945 (1974); United
States v. Stabler, 4 U.S.C.M.A. 125, 15 C.M.R. 125 (1954). See
also United States v. Gilbert, 23 C.M.R. 914 (A.F.B.R. 1957).
The language in paragraph 165 of MCM, 1969 (Rev.) dealing
with constructive knowledge has been eliminated. To avoid confusion,
this language has been replaced with the statement that
actual knowledge may be proved by circumstantial evidence. See
U n i t e d S t a t e s v . C u r t i n , 9 U . S . C . M . A . 4 2 7 , 2 6 C . M . R . 2 0 7
(1958).
(3) Intent. This subparagraph is based on paragraph 165 of
MCM, 1969 (Rev.).
( 4 ) A g g r a v a t e d f o r m s o f u n a u t h o r i z e d a b s e n c e . T h i s s u b -
paragraph is based on paragraphs 127 c and 165 of MCM, 1969
(Rev.).
(5) Civil authorities. This subparagraph is taken from parag
r a p h 1 6 5 f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . M y h r e , 9
U.S.C.M.A. 32, 25 C.M.R. 294 (1958); United States v. Grover,
10 U.S.C.M.A. 91, 27 C.M.R. 165 (1958). See also United States
v. Dubry, 12 M.J. 36 (C.M.A. 1981).
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