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Iceland Volcano Erupts For Third Time In 2 Months, State Of Emergency Declared Tucker Carlson Interview with Vladamir Putin Status: Not Logged In; Sign In United States News See other United States News Articles Title: Bowe Bergdahl, once missing U.S. soldier, charged with desertion Source: [None] URL Source: http://www.washingtonpost.com/news/ ... harged-with-desertion/?hpid=z1 Published: Mar 25, 2015 Author: Dan Lamothe Post Date: 2015-03-25 14:36:55 by A K A Stone Keywords: None Views: 11688 Comments: 86 Sgt. Bowe Bergdahl, the U.S. soldier who was recovered in Afghanistan last spring after five years in captivity, faces charges of desertion and misbehavior before the enemy, according to his lawyer. Eugene Fidell, Bergdahl’s attorney, told The Washington Post that his client was handed a charge sheet on Tuesday. Army officials announced they will provide an update in his case at 3:30 p.m. at Fort Bragg, N.C., but declined to discuss new developments ahead of the news conference. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Comments (1-17) not displayed.       .       .       . #18. To: Fred Mertz, A K A Stone (#1) Is this the guy whose parents appeared with the president for some sort of announcement months ago? Yes, and the same one that Rice claimed served with distinction. потому что Бог хочет это тот путь SOSO  posted on  2015-03-25   19:40:39 ET  Reply   Trace   Private Reply   #19. To: redleghunter, A K A Stone, All (#5) If convicted maybe he can have Chelsea Elizabeth Manning as a cellmate. He will not spend a single day behind bars. потому что Бог хочет это тот путь SOSO  posted on  2015-03-25   19:42:19 ET  Reply   Trace   Private Reply   #20. To: Liberator, TooConservative, redleghunter (#12) We all know Bergdahl will merely be pardoned in 2016, most likely after having served a few months -- if that. I see as most likely that Bergdahl will plea bargain, plead guilty to one count of something, and accept a Bad Conduct Discharge with forfeiture of pay and allowances, including the pay for his time in captivity. A legal point of contention may be whether he intended to remain away permanently, or was he taking a dump or communing with Gaia when captured, said capture preventing his return from an unauthorized absence. nolu chan  posted on  2015-03-25   19:49:58 ET  Reply   Trace   Private Reply   #21. To: Liberator (#12) Will have to look that up. Don't think military inmates can be pardoned. Might be wrong. Just have not seen it. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-25   23:44:13 ET  Reply   Trace   Private Reply   #22. To: SOSO (#18) Yes, and the same one that Rice claimed served with distinction. I guess that would all depend on how you define "distinction",wouldn't it? How many times have we all heard about people like Ted Kennedy serving with distinction in the US Senate? Or Bubbette! serving with distinction as the Sec of State and earlier the First Bitch? Why is democracy held in such high esteem when it’s the enemy of the minority and makes all rights relative to the dictates of the majority? (Ron Paul,2012) sneakypete  posted on  2015-03-25   23:44:24 ET  Reply   Trace   Private Reply   #23. To: TooConservative (#13) LOL travel ban in an Arab country. What a joke. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-25   23:46:31 ET  Reply   Trace   Private Reply   #24. To: nolu chan (#15) Time of war can be interpreted. I could not read the image you posted. Does it say the war must be declared by Congress? I'm sure the defense will bring this up. I seriously doubt it would hold. Afghanistan was a declared hostile zone. Maybe this will lead to the question of the Constitutionality of the war powers act. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-25   23:51:36 ET  Reply   Trace   Private Reply   #25. To: redleghunter (#24) I could not read the image you posted. You have computer or connection problems. Fred Mertz  posted on  2015-03-25   23:55:17 ET  Reply   Trace   Private Reply   #26. To: SOSO, CZ82, liberator, TooConservative (#19) He will not spend a single day behind bars. Didn't you also say he would never have charges preferred against him. LOL. He is going before a Courts Martial panel (jury) where seasoned field grade officers and senior NCOs will sit on. He's toast. I'm just glad I'm retired. I don't envy the panel members. I can imagine how the civilian attorneys for Bergdalh will attempt to dismiss panel members based on being combat veterans. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-25   23:59:25 ET  Reply   Trace   Private Reply   #27. To: nolu chan, Liberator, TooConservative, CZ82 (#20) A legal point of contention may be whether he intended to remain away permanently, or was he taking a dump or communing with Gaia when captured, said capture preventing his return from an unauthorized absence. We shall see. The investigating officer with legal counsel drummed up the article 99. Tells me the government is not leaning towards a plea bargain. Soldiers died looking for this crap bag. His unit from reports are unanimous in saying he fled. He left his unit without authorization and left his weapon behind. He didn't want to be found. If he did he would have taken a piece of equipment where he could be found. Assets were taken off combat operations to look for him endangering more soldiers. I think article 99 is there in the charge sheet for a reason. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   0:10:04 ET  Reply   Trace   Private Reply   #28. To: Fred Mertz (#25) Tablet "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   0:11:10 ET  Reply   Trace   Private Reply   #29. To: redleghunter, Liberator (#21) Will have to look that up. Don't think military inmates can be pardoned. Might be wrong. Just have not seen it. The President’s pardoning power is granted by Article 2, Section 2, Clause 1, The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The President’s pardoning power extends to all cases except impeachment. nolu chan  posted on  2015-03-26   0:27:07 ET  Reply   Trace   Private Reply   #30. To: nolu chan (#29) Thanks. So Obolo will try this I'm sure. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   0:40:58 ET  Reply   Trace   Private Reply   #31. To: redleghunter (#24) (Edited) Time of war can be interpreted. I could not read the image you posted. Does it say the war must be declared by Congress? The image is a scribd file of Article 85 from the Manual of Courts-Martial. Manual of Courts-Martial, R.C.M. 103(19) Rule 103. Definitions and rules of construction [...] R.C.M. 103(19) (19) “War, time of.” For purpose of R.C.M. 1004(c)(6) and of implementing the applicable paragraphs of Parts IV and V of this Manual only, “time of war” means a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a “time of war” exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual. Part IV of the MCM is the punitive articles of the UCMJ. Part V of the MCM concerns Article 15 Non-Judicial Punishment. For a state of war to exist, there must be a conflict between the armed forces of two nations. A war between one nation and one non-state actor is a conflict of a non-international character. http://www.armytimes.com/story/military/2015/03/25/bowe-bergdahl-army-decision-next-steps/70436058/ The desertion charge against Bergdahl, which falls under Article 85 of the Uniformed Code of Military Justice, carries a maximum punishment of five years confinement, a dishonorable discharge, reduction to the rank of E-1, forfeiture of all pay and allowances. The misbehavior before the enemy charge, which falls under Article 99 of the UCMJ, carries a maximum punishment of confinement for life as well as a dishonorable discharge, reduction in rank to E-1, and forfeiture of pay and allowances. nolu chan  posted on  2015-03-26   1:00:27 ET  Reply   Trace   Private Reply   #32. To: redleghunter (#30) So Obolo will try this I'm sure. I do not think he will, at least not until after Bergdahl has pleaded guilty, if at all. nolu chan  posted on  2015-03-26   1:08:29 ET  Reply   Trace   Private Reply   #33. To: redleghunter, Liberator, TooConservative, CZ82 (#27) I think article 99 is there in the charge sheet for a reason. I'm sure it is, but I think it is to ensure that Bergdahl will plead guilty as part of a deal to get rid of that charge. I do not think this case will face a trial. It took quite a while for the White House and the military to come up with this charge sheet. nolu chan  posted on  2015-03-26   1:12:51 ET  Reply   Trace   Private Reply   #34. To: nolu chan, redleghunter (#33) I think the Pentagon controls this and the WH is helpless. If the WH had any real power to change the outcome, there would be no charges at all. As for a pardon, don't you have to have a conviction prior to a presidential or gubernatorial pardon? You can't have preemptive pardons issued prior to a lawful finding of guilt. Too much temptation for crooked pols to just pardon all their henchmen in advance. I think the Bergdahl courtmartial will drag on well through mid-2016. I think it will be fodder for criticism of Obama and especially Hitlery. By summer of 2016, it won't matter as much because then a convicted Bergdahl is still damaging and a pardoned Bergdahl hurts Obola and Hitlery even worse. Tooconservative  posted on  2015-03-26   4:35:39 ET  Reply   Trace   Private Reply   #35. To: redleghunter (#26) Why not to send him to Guantanamo and keep him there without charges forever? A Pole  posted on  2015-03-26   5:58:02 ET  Reply   Trace   Private Reply   #36. To: A Pole, redleghunter (#35) And let him enjoy the nice year round warm Caribbean weather, NOT. Sending him to one of the gulags the Soviets forgot to close would be a far better solution. “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.â€� CZ82  posted on  2015-03-26   7:30:54 ET  Reply   Trace   Private Reply   #37. To: nolu chan (#31) .C.M. 103(19) (19) “War, time of.” For purpose of R.C.M. 1004(c)(6) and of implementing the applicable paragraphs of Parts IV and V of this Manual only, “time of war” means a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a “time of war” exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual. Part IV of the MCM is the punitive articles of the UCMJ. Part V of the MCM concerns Article 15 Non-Judicial Punishment. For a state of war to exist, there must be a conflict between the armed forces of two nations. A war between one nation and one non-state actor is a conflict of a non-international character. http://www.armytimes.com/story/military/2015/03/25/bowe-bergdahl-army-decision-next-steps/70436058/ The desertion charge against Bergdahl, which falls under Article 85 of the Uniformed Code of Military Justice, carries a maximum punishment of five years confinement, a dishonorable discharge, reduction to the rank of E-1, forfeiture of all pay and allowances. The misbehavior before the enemy charge, which falls under Article 99 of the UCMJ, carries a maximum punishment of confinement for life as well as a dishonorable discharge, reduction in rank to E-1, and forfeiture of pay and allowances. Indeed. "Time of war" will be the key factor with Article 85. A war between one nation and one non-state actor is a conflict of a non- international character. Looking at the above there is potential international law to present the Afghan war as between two states (or warring entities) or an international coalition against the Taliban who were then the legal government in Afghanistan: "In December 2001, the United Nations Security Council established the International Security Assistance Force (ISAF), to oversee military operations in the country and train Afghan national security forces. At the Bonn Conference in December 2001, Hamid Karzai was selected to head the Afghan Interim Administration, which after a 2002 loya jirga in Kabul became the Afghan Transitional Administration. In the popular elections of 2004, Karzai was elected president of the country, now named the Islamic Republic of Afghanistan." (http://en.wikipedia.org/wiki/War_in_Afghanistan_(2001% E2%80%93present)#cite_note-dx-36) With Article 99 on the charge sheet, the government may not have to get as creative as I just did. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   9:46:45 ET  Reply   Trace   Private Reply   #38. To: nolu chan (#33) I do not think this case will face a trial. It took quite a while for the White House and the military to come up with this charge sheet. If the WH was involved in this charge sheet we could have a serious issue with "Unlawful Command Influence (UCI). Let him plea guilty to Article 85 and try him for Article 99. Seems to be the only way to keep good order and discipline. It is not like this guy deserted before deploying and is sitting up in Canada wanting to come home. That is what a plea is for. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   9:56:16 ET  Reply   Trace   Private Reply   #39. To: TooConservative, nolu chan (#34) If the WH had any real power to change the outcome, there would be no charges at all. And it would be a heavy dose of Unlawful Command Influence (UCI) if the WH was involved at all in the investigation process and charge sheet. It would also pertain to the WH giving tips to the defense attorney as well. UCI is serious business in the Services For a minor administrative separation board, I was grilled by a young pimply green behind the ears JAG for 20 mins trying to claim I was a biased board voting member. He tried to prove that as a field grade officer I was following the Commanding General's comments on how we needed to get people out of the Army faster. Yes the General was not that smart and actually said that. So I countered to the JAG kid, "well that means you impeach yourself as defense attorney since you heard the same comments." He flushed a bit..."but...but...I'm impartial as a lawyer..." He responded. I then said "so am I as a fellow commissioned officer." So this stuff is taken seriously and the senior types, the good ones, like the investigating officer knows this. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   10:05:10 ET  Reply   Trace   Private Reply   #40. To: A Pole (#35) Why not to send him to Guantanamo and keep him there without charges forever? Bergdalh is covered as a uniformed soldier under the UCMJ and also under the Laws of Armed Conflict (LOAC). Gitmo is for illegal combatants. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   10:07:06 ET  Reply   Trace   Private Reply   #41. To: redleghunter (#40) Gitmo is for illegal combatants. Gitmo is outside of any jurisdiction, so anyone can be sent there. A Pole  posted on  2015-03-26   11:12:29 ET  Reply   Trace   Private Reply   #42. To: A Pole, liberator, CZ82, A K A Stone (#41) Gitmo is outside of any jurisdiction, so anyone can be sent there. So that's where Hillery Clinton's email server went! "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   12:32:28 ET  Reply   Trace   Private Reply   #43. To: redleghunter (#38) If the WH was involved in this charge sheet we could have a serious issue with "Unlawful Command Influence (UCI). True, but who is going to do anything about it if it did happen? “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.â€� CZ82  posted on  2015-03-26   12:54:39 ET  Reply   Trace   Private Reply   #44. To: CZ82 (#43) True, but who is going to do anything about it if it did happen? There are still honorable men at the top ranks. Odierno being one. And I knew the investigating officer personally. He was my BDE CDR about 10 years ago. This is a legal way for the military to stuff it back to the Admin. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   13:00:16 ET  Reply   Trace   Private Reply   #45. To: redleghunter (#26) Didn't you also say he would never have charges preferred against him. LOL. He is going before a Courts Martial panel (jury) where seasoned field grade officers and senior NCOs will sit on. He's toast. He is going to the equivalent of a Grand Jury were all charges can be dismissed. He will not be court martialed. I will give you odds that the worst that happens to him is a plea deal where he gets a dishonorable discharge and may not get his back pay. He will not see a day behind bars save for what he may during the so-called trail. The only way I am wrong about this if Obama decides that he can throw Bergdah under the bus with getting mud splattered on the Emperor himself. But the administration's paid liars are still claiming that his trade for 5 terrorist leaders was absolute a good deal. Either way justice will not be served. потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   13:02:09 ET  Reply   Trace   Private Reply   #46. To: TooConservative, nolu chan, redleghunter (#34) As for a pardon, don't you have to have a conviction prior to a presidential or gubernatorial pardon? What was Nixon convicted of when Ford pardoned him? потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   13:05:10 ET  Reply   Trace   Private Reply   #47. To: redleghunter (#42) So that's where Hillery Clinton's email server went! Didn't it come out that some of her assistants had "their own servers too"?? “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.â€� CZ82  posted on  2015-03-26   13:06:22 ET  Reply   Trace   Private Reply   #48. To: SOSO (#45) He is going to the equivalent of a Grand Jury were all charges can be dismissed. He will not be court martialed. It is difficult to 'dismiss' any charges in an Article 32 investigation. We shall see. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   13:14:54 ET  Reply   Trace   Private Reply   #49. To: CZ82 (#47) Don't know. They are all corrupt. At a minimum Hitlery is guilty of willful deception. "For the law was given through Moses, but grace and truth came through Jesus Christ." (John 1:17) redleghunter  posted on  2015-03-26   13:22:18 ET  Reply   Trace   Private Reply   #50. To: CZ82 (#47) Didn't it come out that some of her assistants had "their own servers too"?? No, they used hers and had their own personal email accounts too. People like Huma did that anyway. So did Bill & Chelsea (whose longstanding secret travel identity got exposed as a result of this server nonsense). Tooconservative  posted on  2015-03-26   13:25:22 ET  Reply   Trace   Private Reply   #51. To: TooConservative, redleghunter (#34) As for a pardon, don't you have to have a conviction prior to a presidential or gubernatorial pardon? You can't have preemptive pardons issued prior to a lawful finding of guilt. Too much temptation for crooked pols to just pardon all their henchmen in advance. Wrong guess. Manual for Courts-Martial, 2012 Edition, R.C.M. 907(b)(2)(D)(iii), p. II-97 (D) Prosecution is barred by: (i) A pardon issued by the President; nolu chan  posted on  2015-03-26   13:47:07 ET  Reply   Trace   Private Reply   #52. To: redleghunter (#37) Indeed. "Time of war" will be the key factor with Article 85. It will be a zero factor. There will be a zero attempt to even attempt to introduce the term war as a factor. nolu chan  posted on  2015-03-26   13:49:38 ET  Reply   Trace   Private Reply   #53. To: redleghunter (#38) If the WH was involved in this charge sheet we could have a serious issue with "Unlawful Command Influence (UCI). You don't think WH involvement was the cause of the incredible delay? The high military brass are political appointees. nolu chan  posted on  2015-03-26   13:52:59 ET  Reply   Trace   Private Reply   #54. To: redleghunter (#39) And it would be a heavy dose of Unlawful Command Influence (UCI) if the WH was involved at all in the investigation process and charge sheet. It would also pertain to the WH giving tips to the defense attorney as well. UCI is serious business in the Services UCI is endemic to the process. It is all over it. When everyone in the world knows the WH and the military are wrangling about Bowe Bergdahl and military charges, its hard to say that the JAG officers are the only ones out of the loop. The Convening Authority knows what is wanted. Here, the military can deliver only just so much. They could never explain not bring charges. nolu chan  posted on  2015-03-26   13:58:43 ET  Reply   Trace   Private Reply   #55. To: SOSO (#46) What was Nixon convicted of when Ford pardoned him? Pardoning him was the same as convicting him in the court of public opinion. Having praised Bergdahl for his service, Obama pardoning him prior to a court martial would politicize the whole process. And Bergdahl would be assumed guilty as charged (or worse) and Obama would literally be eating his own words after treating Bergdahl as a war hero for his spectacular desertion and consorting with the enemy. Even the libmedia won't cover up for a Bergdahl pardon. I think it would be a sort of breaking point for them. Tooconservative  posted on  2015-03-26   14:03:59 ET  Reply   Trace   Private Reply   #56. To: nolu chan (#51) Wrong guess. Even so, I don't think it will happen. Tooconservative  posted on  2015-03-26   14:08:24 ET  Reply   Trace   Private Reply   #57. To: TooConservative (#55) Even the libmedia won't cover up for a Bergdahl pardon. I think it would be a sort of breaking point for them. Think again. потому что Бог хочет это тот путь SOSO  posted on  2015-03-26   14:11:49 ET  Reply   Trace   Private Reply   #58. To: redleghunter (#38) It is not like this guy deserted before deploying and is sitting up in Canada wanting to come home. That is what a plea is for. A plea is for when avoiding a trial is desired. The Commander-in-Chief does not want a trial. His appointees want what he wants. The military needs a guilty plea. A plea agreement can do that. This probably comes to nothing in the end, but it is interesting to look at the possibilities. Everybody knew for years that Bergdahl had left his unit and was captured. He was promoted to Sergeant, paid for his time in captivity, and returned to duty. That’s all public knowledge. Manual for Courts-Martial, 2012 Edition, R.C.M. 907(b)(2)(D)(iii), p. II-97-98 (D) Prosecution is barred by: (i) A pardon issued by the President; [...] (iii) Constructive condonation of desertion established by unconditional restoration to duty without trial of a deserter by a general court-martial convening authority who knew of the desertion; “A promotion will operate as a constructive pardon on such offense,” Winthrop at 270, U.S. v Mason, excerpted below. Court-Martial Reports of the Judge Advocate General of the Air Force, Holdings and Opinions of the Judge Advocate General, Judicial Council and Boards of Review, Volume 3, (1950) At 174: BOARD OF REVIEW ACM 2289 UNITED STATES v. Private First Class WILLIAM MASON, AF 6712867, Headquarters and Headquarters Squadron, 1100th Air Base Group Continuance — absence of witness — materiality— constructive condonation. At 174-5: Desertion —constructive condonation. 2. A motion for dismissal of a Charge of desertion was made on the grounds of constructive condonation based on the claim that the accused had been promoted from private to private first class after the offense was committed. There was no showing, nor contention that evidence was available to show, that the promotion was made by a commander exercising general court-martial jurisdiction or that his mind was directed to this particular offense and was consciously willing that the accused be granted exception from the consequence of it. The law member, therefore, properly denied the motion. At 176: After the arraignment, but prior to pleading to the general issue, the accused made a special motion to dismiss Specifications 1 and 2 of the Charge, which motion was denied. The accused then pleaded not guilty to all of the Specifications of the Charge and to the Charge. The Court’s findings were as follows: Guilty except the words ‘Wilmington, Delaware’ substituting therefor the words ‘Fort Dix, New Jersey’, of the excepted words, Not Guilty, of the substituted words, Guilty. At 177: 3. Special pleas and motions. Prior to entering pleas to the general issue, the accused moved for dismissal of Specifications 1 and 2 of the Charge “on the ground of constructive condonation” (R. 6). At 179: Having in mind that the record of trial shows that the defense counsel is not a lawyer within the meaning of Article of War 11, the Board of Review has treated the defense counsel’s language regarding the desirability of a continuance as an outright request for continuance for the purpose of obtaining general Hutchinson’s testimony either in person before the Court or in the form of a deposition. At 180-81: Constructive condonation has been considered by Boards of Review of the Department of the Army in situations somewhat similar to that in the present case, i.e., where there was no showing that the suthority competent to appoint a general court-marital restored the accused to duty with full knowledge of the facts concerning the alleged desertion. (CM 298568, Schultz, 24 BR ETO 127, 133; CM 299988, Pagano, 31 BR ETO 121, 130; CM 280227, Stirewalt, 58 BR 115, 119-121; CM 316767, Jones, 66 BR 29, 31; CM 882151, Missik, 3 BR -JC 243, 272). It does not appear that the matter of restoration and condonation has heretofore been the subect of an opinion by any Board of Review of the Department of the Air force, either generally, or upon the precisely defined question of whether such restoration with constructive knowledge of the competent appointing authority can successfully be pleaded in bar of trial for the offense of desertion. Initially, the Board deems appropriate the following language from the Missik opinion, supra, at page 272: “The defense of constructive condonation, although long recognised in military law, is a defense only to the single offense of desertion. . . . [Citing cases.] When interposed as a special plea in bar of trial, it must be supported by the accused by a preponderance of the proof (par 64a. MCM 1928, p-51)” (Italics added). At 181: Proceeding upon this the Board then said, at pages 130 and 131: “. . . For the purpose of this holding, the Board of Review wiil assume, without deciding, that an unconditional restoration to duty without trial by the Staff Judge Advocate of the authority competent to order trial, may successfully be pleaded in bar of trial for the desertion, as constructive condonation by that authority. “The full purport of the conversation between the Staff Judge Advocate and accused, assuming there was one, and any evidence bearing upon the authority of that officer to act for the division commander in the premises, should have been presented by the defense if it intended to establish constructive condonation. Upon the a state of the record, one cannot say that the defense was established or that the court was bound to believe accused’s uncorroborated testimony with respect thereto or that it constituted a discharge of the defense’s burden of supporting the plea, which the Board will assume to have been entered. . . .” At 182: The language of the foregoing opinions suggests that a commander who exercises general court-martial authority need not personally do all the acts requircd to accomplish a condonation of an offense by the unconditional restoration of the offender to duty, but that such condonation may be accomplished by a subordinate officer to whom the commander by either expressly or impliedly delegated either special or general authority to act in his name on such matters. The question of whether a condonation may be accomplished by a subordinate officer under such conditions, as distinguished from the mere carrying out of the expressed wishes of the commander in a particular case, is not presented in the case. This Board does not decide that question herein. It is clear, however, from the above cases, that even if such acts of a subordinate done under a delegation of authority are legally sufficient to accomplish condonation, the accused’s burden of showing the requisite knowledge and intent on the part of such officer would be no less than where it is claimed that the commander himself ordered the restoration. This Board so holds. At 183: The defense made a further motion for dismissal of Specification 1 of the Charge on the grounds of condonation based on the claim that the accused had been promoted from private to private first class [R. 21]. This motion was made at the conclusion of the prosecution’s case and was based upon the fact that Prosecution’s Exhibit No. 2 shows accused as private first class. The defense counsel stated: “. . . He was promoted. We don’t know where or when, but it was after he took off and the offense was committed. Winthrop says, on page 270: ‘A promotion will operate as a constructive pardon on such offense’.” In fact, all subsequent exhibits of the prosecution show the accused as “Pfc”, and he is so charged. However, there is no showing, nor was there any representation or contention that evidence was available to show, that the promotion was made by a commander exercising general court-martial jurisdiction, or that his mind was directed to this particular offense and was consciously willing that the accused be granted exception from the consequences of it. The law member, therefore, properly denied the motion (R. 21). nolu chan  posted on  2015-03-26   14:35:45 ET  Reply   Trace   Private Reply         .       .       . Comments (59 - 86) not displayed. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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