174BOARD OF REVIEW

ACM 2289

UNITED STATESv.

Private First Class WILLIAM MASON, AF 6712867, Headquarters and Headquarters Squadron, 1100th Air Base Group

Continuance absence of witness materiality constructivecondonation.

1. An accused was charged with two periods of desertion, oneterminating on 25 November 1946 and the other terminating on 8January 1949. To establish a defense of constructive condonation, thedefense offered in evidence an extract copy of a morning report entry ofthe 307th Air Base Group, MacDill Air Force Base, Florida, showing theaccused from Conf to dy on 10 February 1949. Defense counsel thenrequested a continuance for the purpose of obtaining, either in the formof a deposition or personal appearance before the Court, the testimony ofa certain general officer. Defense counsel asserted that if such officer,who was then in Alaska, was present and sworn, he would testify thaton or about 10 February 1949 he was the Commanding General of the307th Bombardment Wing, and that, as such, on that date, he not onlywas invested with, but exercised general court-martial jurisdiction, andthat on that date, with his constructive knowledge, the accused . . . wasreleased from confinement, without restriction. It appeared from therecord that defense counsel rested his motion for a continuance upon theproposition that the evidence he had placed before the Court needed onlyto be supplemented by the facts which be expected to establish by thetestimony of the general officer to make out a defense of constructivecondonation. Neither the record of trial nor the accompanying paperscontained anything to indicate what testimony the general officer mighthave given if present and testifying under oath, other than the assertions

of defense counsel. However, the Court could properly accept suchassertions as substantially true (MCM 1949, par 52c). The motion for acontinuance was denied. The only question concerning the propriety ofthe denial was the question of the materiality of the expected testimonyof the absent witness. HELD: The motion for continuance was properlydenied. Under the circumstances of this, case, it would appear that unlessthe testimony of the general officer would have materially affected theaccused's case, the denial of the motion was not in error (CM 330299,Fickas, 78 BR 363, 365, 366; 12 Am Jur. Continuances, 23). Unless,therefore, the expected testimony of the general officer would havefurnished an essential connecting link in the chain of evidence necessaryto establish the constructive condonation claimed by the defense, theBoard of Review must conclude that it would not have been of materialadvantage to the accused to have obtained it.

Desertion constructive condonation.

2. A motion for dismissal of a Charge of desertion was made on thegrounds of constructive condonation based on the claim that the accusedhad been promoted from private to private first class after the offensewas committed. There was no showing, nor contention that evidence wasavailable to show, that the promotion was made by a commanderexercising

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general court-martial jurisdiction or that his mind was directed to thisparticular offense and was consciously willing that the accused begranted exception from the consequence of it. The law member,therefore, properly denied the motion.

Exceptions and substitutions place of apprehension.

3. The substitution by the Court in its findings, of the place ofapprehension of the accused as shown by the proof, in lieu of the placealleged, is proper. (Citing MCM, 1949, par 78c; CM 261111, Kuykendall,40 BR 141.)

Morning reports contemporaneous entries,

4. Morning report entries need not be made contemporaneously withthe happening of the event. (Citing ACM 2150, Virgilio, 2 CMR 435.)

Desertiontermination in manner not shown.

5. An accused was charged with desertion until he surrenderedhimself at Wilmington, Delaware, on 25 November 1946. He was foundguilty, the Court excepting the words Wilmington, Delaware, andsubstituting the words Fort Dix, New Jersey, therefor. The inception ofthe absence of the accused was shown by competent evidence. To showthe termination of the absence, the prosecution offered in evidence anextract copy of a morning report of a unit at Fort Dix, New Jersey. Aftercertain deletions were made by the Court upon objections by the defense,the entry showed the accused as Atchd unasgd fr AAF ORD GreensboroNC . . . per par 12 SO 385 Hq 1262 ASU Ft Dix NJ EDCMR: 28 Nov 46.The wording of the extract copy, with its deletions, left nothing whichexplained the circumstances of the attachment. HELD: In the absence ofother evidence to the contrary, the accuseds unauthorized absencecontinued until terminated by his return to military control at Fort Dix,New Jersey, on or about 25 November 1946. There being no evidence thatthe accused surrendered himself, as alleged and found, the record of trialwill support only a finding as to the manner of termination of the period ofabsence as finds that the accused returned to military control in a mannernot shown.

Jurisdiction of Air Force over Army personnel.

6. The accused, who was arraigned and tried on 16 August 1949,was alleged in one Specification of the Charge to be a member of a unit ofthe First Army at Fort Dix, New Jersey, at the time of the alleged offense.There was no evidence that he was still a member of the Department ofthe Army at the time of the trial, and the accused was described in allSpecifications as currently being a member of an organization of theDepartment of the Air Force. He was so arraigned, and his identity assuch was thereby established prima facie. There was no issue raisedregarding this fact, either by the accused or by the appearance of anyaffirmative fact in the record of trial, showing that he was not a memberof that organization (ACM 18, Baggett. 1 CMR 16, 22; ACM 539, Juris.1 CMR 485, 489). There was no evidence that the accused had in factbeen at any time the subject of an interdepartmental transfer. It appearsthat the language of such Specification aforementioned should have readthen attached to rather than then a member of, and that the wordsactually employed amounted to a harmless misnomer. Assuming that theaccused was a member of an organization of the Department of the Armyat the time of the offense complained of, the Department of the Air Forcewould nevertheless have had jurisdiction to punish the offense at the timeof this trial.

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This was specifically provided for in 4 of Public LAWS 774, Act of June25, 1948 (62 Stat 1014 [c 648, 5 USC 627j, 627k, 627l], and leaves nodoubt AS to the jurisdiction of either department to prosecute suchoffense.

Trial by General Court-Martial, convened at Bolling Air ForceBase, District of Columbia, on 16 August 1949. Dishonorabledischarge, total forfeitures after date of order, and confinementat hard labor for three (3) years and six (6) months.

1. The record of trial in the case of the airman named above hasbeen examined by the Board of Review and the Guard submits this, itsholding, to The Judge Advocate General, United States Air Force.

2. The accused was arraigned and tried upon the following Chargeand Specifications;

CHARGE: Violation of the 58th Article of War.

SPECIFICATION 1: In that Private First Class WilliamMason, Headquarters and Headquarters Squadron,1100th Air Base Group, Bolling Air Force Base,District of Columbia, then a member of Squadron O,106th Army Air Force Base Unit, OverseasReplacement Depot, Greensboro, North Carolina, did atOverseas Replacement Depot, Greensboro, NorthCarolina, on or about 8 March 1946, desert the Serviceof the United States, and did remain absent in desertionuntil he surrendered himself at Wilmington, Delaware,on or about 26 November 1946.

SPECIFICATION 2: In that Private First Class William

Mason. Headquarters and Headquarters Squadron,1100th Air Base Group, Bolling Air Force Base,District of Columbia, then a member of detachmentNumber 3. 1262nd Army Service Unit, First Army, FortDix, New Jersey, did, at Fort Dix, New Jersey, on orabout 6 December 1946, desert the service of theUnited States, and did remain absent in desertion untilbe was apprehended at Adamsville, Florida, on or about8 January 1949.

SPECIFICATION 3: in that Private First Class WilliamMason, Headquarters and Headquarters Squadron,

1100th Air Base Group, Bolling Air Force Base, Districtof Columbia, then a member of Air Police Squadron,307th Air Base Group, MacDill Air Force Base, Tampa,Florida, did at MacDill Air Force Base, Tampa, Florida,on or about 4 March 1949, desert the service of the UnitedStates, and did remain absent in desertion until besurrendered himself at Havre de Grace, Maryland, on orabout 26 May 1949.

After the arraignment, but prior to pleading to the general issue, theaccused made a special motion to dismiss Specifications 1 and 2 of theCharge, which motion was denied. The accused then pleaded not guilty toall of the Specifications of the Charge and to the Charge. The Courtsfindings were as follows:

Of Specification 1 of the Charge;

Guilty except the words Wilmington, Delaware substituting thereforthe words Fort Dix, New Jersey, of the excepted words, Not Guilty, of thesubstituted words, Guilty.

Of Specification 2 of the Charge;

Guilty

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Of Specification 3 of the Charge;

Guilty, except the word desert and in desertion, substituting herefor,respectively, the words absent himself without leave from and withoutleave, of the excepted words Not Guilty, of the substituted words Guiltyand guilty of a violation of the 61 at Article of War.

Guilty.

Of the Charge:

The Court sentenced the accused to be dishonorably discharged theservice, to forfeit all pay and allowances to become due after the date ofthe order directing execution of the sentence, and to be confined at hardlabor at such place as the proper authority may direct for three (3) yearsand six (6) months. No evidence of previous convictions was introduced.The reviewing authority approved the finding of guilty of the Charge,Specifications 1 and 2 thereof, but only so much of the findings of guiltyof Specification 3 of the Charge and of the Charge as involved findingsthat the accused absented himself without leave at the place and timealleged and remained so absent until 26 May 1949, in violation ofArticle of War 61. He approved the sentence, designated the BranchUnited States Disciplinary Barracks, New Cumberland, Pennsylvania, orelsewhere as the Secretary of the Army may direct, as the place ofconfinement and forwarded the record of trial, withholding the orderdirecting execution of the sentence, pursuant to Article of War 50e.

3. Special pleas and motions.

Prior to entering pleas to the general issue, the accused moved fordismissal of Specifications 1 and 2 of the Charge on theground of constructive condonation R. 6). The defense cited severalauthorities for the legal basis for such a motion R. 6, 7). He then offeredin evidence an extract copy of a morning report entry of the Air PoliceSquadron, 807th Air Base Group, MacDill Air Force Base, Florida,dated 10 February 1949, which reads as follows:

10 February 1949

Mason William AF-6712367 Pfc-6 010 Conf to dy

/s/Julious C. Griffin Capt, USAF Commanding

The entry was admitted into evidence as Defense Exhibit A R.7).

The record then reveals the following:

DEFENSE: For further proof of the defensesstatements, the defense would like to call Brigadier GeneralDonald R. Hutchinson. I informed the prosecution two weeksago of my desire to call this witness and I now ask theprosecution whether he is here or not. I have informed theprosecution of his address.

PROSECUTION. The prosecution has determined,through correspondence, that Brigadier General Hutchinsonis no longer the Commanding General of MacDill Air ForceBase, Tampa, Florida, and that General Donald R.Hutchinsons present address is the 57th Fighter Wing, APO942, c/o Postmaster, Seattle, Washington, and other than this,the prosecution has made no further attempt to obtain orprocure the person requested.

DEFENSE: With the courts permission, I will profferwhat he was to say and then the court may ascertain whetherit will grant a continuance or some other form of evidence tobe taken from the General. If General Donald R. Hutchinson,presently of Fort Richardson, Anchorage, Alaska, werepresent and sworn he would state substantially as follows:That on or about 10 February 1949 he was the CommandingGeneral of the 807th Bombardment Wing, and that, as such,on that date,

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he not only was invested with, but exercised general court-martial jurisdiction, and that on that date, with hisconstructive knowledge, the accused, Pfc Mason, wasreleased from confinement, without restriction.

PROSECUTION: May the prosecution ask upon whatis based this particular proffer of evidence? Is it throughpersonal knowledge or talk with General Hutchinson that thedefense can state what General Hutchinson would stateshould he appear before the court and make such a statementas that?

LAW MEMBER: Are you asking the defense or thecourt?

PROSECUTION: I will ask the defense, and ask thatthe defense be required to show the basis for this particulartype of testimony he is giving.

DEFENSE: The defense does not feel he is obligatedto answer the prosecutions question. Does the Court directthe defense to answer?

LAW MEMBER: If the defense does not desire toanswer, he does not have to.

DEFENSE: The defense wont answer then. R. 7,8)

The law number suggested that the prosecution and the defenseattempt to arrive at a stipulation as to the expected testimony, whereupon

the Court closed for a brief recess. Upon the opening of the Court thedefense counsel agreed with the accused to stipulate that GeneralHutchinson was in command of the 307th Bombardment Wing and wasthe Commander of MacDill Air Force Base on 10 February 1949, andthat he did on that date have general court-martial jurisdiction. Theprosecution agreed to that stipulation and it was accepted R. 8). The lawmember then asked if that disposed of the defenses request for GeneralHutchinson as a witness, to which the defense counsel replied:

. . . We could not agree that General Hutchinson wouldsay he had constructive knowledge of the accuseds releasefrom confinement without any conditions. I still believe itwould be the testimony of General Hutchinson and stillwould like to proffer that. It must be obvious to the court thatGeneral Hutchinson did not personally let the man out of jail.He had authority to so direct his subordinates, and it is thedefenses contention that whether or not he had actualknowledge of the release is immaterial as long as thoseworking under him had authority and it was directed by theappointing authority. Would the court like the citations that Ihave read? I have several others from Winthrop and theManual for Courts-Martial

LAW MEMBER: The law member would like to see a copy ofAR 615-300 in force on February 1949.

[AR 615-300 was handed to the law member.]

LAW MEMBER: Does the defense have any evidence to presentin support of his motion?

DEFENSE: The document I have introduced in evidence, thestipulation, plus the proffer of what General Hutchinson would stateconcerning the mans release is all that I have. . . (Italics added) R. 9)

After some discussion relating to another matter, the record showsthe following:

LAW MEMBER: . . . With reference to the basic motion made bythe defense counsel, does the defense have anything further?

DEFENSE: The court is not permitting General Hutchinson totestify?

LAW MEMBER: Do you make a motion to call GeneralHutchinson as a witness?

DEFENSE: I called him as a witness and the counsel for thegovernment stated he was not here,

LAW MEMBER: Are you asking for a continuance?

DEFENSE: I said I would proffer any evidence, and if the courtfeels a continuance is warranted, the defense would like to have it.

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LAW MEMBER: Subject to objection by any member of thecourt, the motion of the defense for a continuance in denied.

DEFENSE: I have nothing further to present along this line. R.11, 12)

Having in mind that the record of trial shows that the defensecounsel is not a lawyer within the meaning of Article of War 11, theBoard of Review has treated the defense counsels language regardingthe desirability of a continuance as an outright request for continuancefor the purpose of obtaining general Hutchinsons testimony either inperson before the Court or in the form of a deposition.

The accused has the right to reasonable opportunity to prepare andpresent his case and to present material witnesses in his behalf (MCM,1949, pars 45b, 49f. 52a, b). Paragraph 52b of the Manual, supra, statesin part:

. . . Although the question of a continuance is one forthe sound discretion of the court, whenever it appears that thecourt has abused its discretion and denied the accused areasonable opportunity to prepare for trial or otherwiseperfect his defense, the proceedings should be disapproved . . .

Paragraph 52b of the Manual supra, states that:

. . . The right to prepare for trial and to secure necessarywitnesses is fundamental . . .,

but in discussing the right to continuance, uses the term materialwitness.

It is noted that both the defense counsel and the law member referto the defense counsels statements relative to the nature of GeneralHutchinsons expected testimony as a proffer of testimony. The Boardof Review considers the procedure here under consideration to be thatdiscussed in paragraph 52c the Manual for Courts-Martial, 1949, whichdeals with applications for continuance and action thereon. We do notfind such language used in that discussion. Therefore, while the word

proffer is more appropriately used in connection with offer of proof,discussed in paragraph 140c of the Manual, an entirely separate anddistinct matter, we are considering that the term proffer as used by thecounsel and law member was intended to refer to the showing requiredby paragraph 62c of the Manual of . . . the facts which he expects to beable to prove by such witness . . .. The pertinent portions of thisparagraph are as follows:

. . . the application should show that the witness ismaterial, that due diligence has been used to procure histestimony or attendance, that the party applying for thecontinuance has reasonable ground to believe that he will beable to procure such testimony or attendance within theperiod stated in the application, the facts which he expectedto be able to prove by such witness, and that he cannot safelyproceed with the trial without such witness.

In general the facts as set forth in the application maybe accepted as substantially true; but if long or repeated delayis involved, or the facts are disputed or improbable, or if anyother good reason therefor exists, the applicant may berequired to furnish further proof. . . ,

Neither the record of trial nor the accompanying papers containanything to indicate what testimony General Hutchinson might havegiven if present and testifying under oath, other than the bare assertionsof the defense counsel. However, the Court may properly accept suchassertion as substantially true, as noted above. Since the Court did notrequire the defense to offer anything further in the way of assurance tothe Court that he had reasonable grounds for believing that such wouldbe the nature of General Hutchinsons testimony, it appears that thedefense counsel could have properly assumed that the Court was in factaccepting his statement as being substantially true. The Board feels thatit is therefore bound so to consider that statement. For the purposes of

this discussion, the Board will assume, without so deciding, that theother requirements of the above quoted paragraph of the Manual

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have been met and will consider the question of the materiality of theexpected testimony of the absent witness and the propriety of the lawmembers ruling on the defense motion for continuance under suchcircumstances.

Had the record herein failed to indicate so completely the factswhich, the defense counsel expected to establish by the testimony of theabsent witness, and that he depended upon these facts to supply the solemissing link in the chain of evidence which he relied upon to establishhis claim, there would, perhaps, have been a somewhat differentquestion presented here. However, the position of the defense counsel inthe matter was quite clearly stated in that he rested his motion upon theproposition that the evidence he had placed before the Court needed onlyto be supplemented by the facts which he expected to establish by thetestimony of General Hutchinson to make out a defense of constructivecondonation of the offenses described in Specifications 1 and 2 of theCharge. The law members extensive inquiry on this particular point andthe defense counsels response thereto leave no room for doubt but thatthis issue was clearly drawn, that this was fully understood by allconcerned, and that the law members decision to deny the motion forcontinuance turned on ths issue of whether, in law, the sum total of allthe evidence which the defense counsel had presented and expected toobtain by such continuance would have established either directly or byreasonable inference the elements necessary to constitute suchcondonation. The question presented, therefore, appears to be whether ornot the law members apparent summation or the practical aspects ofsuch a continuation and his apparent findings of law were correct.

Under the circumstances of this case, it would appear that unlessthe testimony of General Hutchinson would have materially affected theaccuseds case, the denial of the motion was not in error. This conclusionappears to be fully supported by the view followed in both military andcivil practice. No holdings of the Boards of Review of the Department ofthe Air Force have been found dealing with this precise question, butseveral holdings of the Boards of Review of the Department of the Armywere found wherein the matter has been particularly dealt with.Reference has also been made to authoritative texts dealing with the civillaw on the subject. The test of materiality is expressed in CM 330299,Fickas, 78 BR 363, 365, 366, wherein the Board said:

. . . .Sufficient evidence must appear in the record oftrial to show that the expected testimony of the witness wouldbe of material advantage to accused. . . . [Citing severalprevious quotations of Boards of Review.]

This seems to be in harmony with the language found in Section23. Volume 12. American Jurisprudence, in which it is said inconnection with requirements of expected testimony of absent witnessesto support a motion for continuance, . . . It must be credible and theremust be a probability that it will affect the result; . . .

Unless, therefore, the expected testimony of General Hutchinsonwould have indeed furnished an essential connecting link in the chain ofevidence necessary to establish the constructive condonation claimed bythe defense, we must conclude that it would not have been of materialadvantage to the accused to have obtained it. There remains to beconsidered, therefore, the question of whether all the necessary elementsof a constructive condonation would have been established by thedefense had the facts relied upon by the defense been proved.

Constructive condonation has been considered by Boards ofReview of the Department of the Army in situations somewhat similar to

that in the present case, i.e., where there was no showing that theauthority competent to appoint a general court-marital restored theaccused to duty with full knowledge of the facts concerning the allegeddesertion. (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

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-JC 243, 272). It does not appear that the matter of restoration andcondonation has heretofore been the subject of an opinion by any Boardof Review of the Department of the Air force, either generally, or uponthe precisely defined question of whether such restoration withconstructive knowledge of the competent appointing authority cansuccessfully be pleaded in bar of trial for the offense of desertion.Initially, the Board deems appropriate the following language from theMissik opinion, supra, at page 272:

The defense of constructive condonation, althoughlong recognized in military law, is a defense only to thesingle offense of desertion. . . . [Citing cases.] Wheninterposed as a special plea in bar of trial, it must besupported by the accused by a preponderance of the proof(par 64a. MCM 1928, p-51) (Italics added).

The language of the Board of Review in the Missik opinion statingthat the burden of supporting a special motion of this kind is upon thedefense and citing paragraph 64a of the 1928 Manual for Courts-Martialas authority therefor has been considered pertinent as the 1949 Manualfor Courts-Martial includes language similar to that contained in thecited paragraph in the 1928 Manual (par 64e). The Missik case, at page272, while stating the general rule that: . . . it must appear that accused

. . . was unconditionally restored to duty by an authority competent toorder his trial by general court-martial who was chargeable with or whoactually had full knowledge of the facts and circumstances of theabsence. . . , expressly withheld ruling authoritatively on the questionof whether in that case the restoration to duty was accomplished by suchcompetent authority. The Board has, accordingly, turned to theexamination of the other cited cases to determine, if possible, the limitsto which this defense would be available if the competent authority didnot personally act and where it was not shown that he had actualknowledge of all the facts and circumstances. In the Pagano case, supra,it appeared that the accused after his return from an alleged period ofdesertion talked with the staff judge advocate of the Ninth InfantryDivision and that the conversation which ensued, according to him, was:

A. Colonel Gentry said that I had two choices: Either Ireturn to the Stockade and awaited trial or go back to my uniton the line on duty.

Q. What did you decide to do? What was your choice?

A. I returned to my organization for duty on the line. [R.20]

The proof showed, as the Board observed, that the accused did infact return to his organization and did perform combat duty therewithfrom 25 February 1945 until 1 May 1945 when he was placed in thestockade to await trial for this alleged desertion. However, as the recordshowed, the only proof that the restoration was unconditioned consistedof the uncorroborated testimony of the accused. Proceeding upon this theBoard then said, at pages 130 and 131:

. . . For the purpose of this holding, the Board ofReview will assume, without deciding, that an unconditionalrestoration to duty without trial by the Staff Judge Advocate

of the authority competent to order trial, may successfully bepleaded in bar of trial for the desertion, as constructivecondonation by that authority.

The full purport of the conversation between the StaffJudge Advocate and accused, assuming there was one, andany evidence bearing upon the authority of that officer to actfor the division commander in the premises, should havebeen presented by the defense if it intended to establishconstructive condonation. Upon the a state of the record, onecannot say that the defense was established or that the courtwas bound to believe accuseds uncorroborated testimonywith respect thereto or that it constituted a discharge of thedefenses burden of supporting the plea, which the Board willassume to have been entered. . . .

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A somewhat similar situation involving the action of a subordinate of thecompetent authority was found in the Schultz case, supra. There theoffender returned to his company commander who, believing the story ofthe accused as to the reason for his absence sent the accused and thecompany executive officer to the staff judge advocateS office where awarrant officer referred them to the assistant adjutant general of thedivision. This latter officer recommended [to the company commander]that no Charges be preferred and that the accused be picked up on themorning report as returned to duty from missing in action. Therecommendation was followed. The Board then said, at pages 132 and133:

. . . the question becomes whether his restoration toduty was accomplished by an authority competent to order

trial or, more specifically, whether the commanding generalwas bound by the action taken by his assistant adjutantgeneral in recommending the action here taken. . . . In theinstant case it appears . . . that neither the commandinggeneral nor his staff judge advocate had knowledge of theaction taken. Without attempting to set forth the exactprocedure necessary, it is concluded that the action here takenwas not such as to constitute an unconditional restoration toduty by an authority competent to order trial and hence didnot amount to constructive condonation of accuseds offense . . . .

In the Jones case, supra, the restoration was accomplished by theregimental commander, and the Board of Review in holding thatconstructive condonation was not established said:

. . . only the authority competent to order trial, in this casethe division commander, has the power to condone anoffense. Since accused was assigned to duty in the regimentalS-2 office by his regimental commander, no condonation waseffected . . . [citing cases].

The Board considers that the Schultz, Pagano, and Jones cases,supra, harmoniously indicate that the mere act of a subordinate ineffecting a release and restoration cannot be considered as the act of theauthority competent to appoint a general court-martial in the absence ofsome showing that such subordinate was specially or generallyauthorized to so act for the appointing authority. The principleannounced by The Judge Advocate General of the Army in hisindorsement to the opinion of the Board of Review in the Stirewalt case,supra, (p 128) regarding constructive condonation appears to the Boardto be particularly applicable to any showing of a delegation of authorityby the appointing authority. His statement of principle was:

. . . Condonation of crime which becomes a legal barto punishment therefore should be sanctioned only upon theclearest authority. . . .

The language of the foregoing opinions suggests that a commanderwho exercises general court-martial authority need not personally do allthe acts required to accomplish a condonation of an offense by theunconditional restoration of the offender to duty, but that suchcondonation may be accomplished by a subordinate officer to whom thecommander by either expressly or impliedly delegated either special orgeneral authority to act in his name on such matters. The question ofwhether a condonation may be accomplished by a subordinate officerunder such conditions, as distinguished from the mere carrying out of theexpressed wishes of the commander in a particular case, is not presentedin 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 subordinatedone under a delegation of authority are legally sufficient to accomplishcondonation, the accuseds burden of showing the requisite knowledgeand intent on the part of such officer would be no less than where it isclaimed that the commander himself ordered the restoration. This Boardso holds.

The evidence which the defense actually produced plus that whichit sought to produce would have established only that the accused wasreleased from con-

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finement and placed on a duty status on 10 February 1949, which eventwas reported by Captain Julious C. Griffin, Commander of the AirPolice Squadron at MacDill Air Force Base, and that GeneralHutchinson, who then exercised general court-martial jurisdiction at that

time and place, had constructive knowledge that the accused wasreleased from confinement at that time without restriction. Such facts, ifproved, would fail to show that the officer exercising general court-martial jurisdiction, either personally or through an authorizedsubordinate, ordered the accuseds release from confinement andrestoration to duty with the requisite knowledge of the offensecommuted by the accused and intent that the accused not be triedtherefor. From the foregoing discussion, it is seen that these latterelements are indispensable to make out a constructive condonation. TheBoard concludes that the facts relied upon by the defense in this casewere substantially incomplete, even after full inquiry by the Court andample discussion and elaboration by the defense counsel. The ultimatepurpose of securing the testimony sought by the defense at this time wasto supply the basis for its motion to dismiss on the grounds ofconstructive condonation. Such evidence would not have been sufficientto support the defenses burden of establishing the preponderance ofproof which would be required to support a motion to dismiss on suchgrounds. We conclude, therefore, that the motion for continuance wasproperly denied under the circumstances.

The defense made a further motion for dismissal of Specification 1of the Charge on the grounds of condonation based on the claim that theaccused had been promoted from private to private first class [R. 21].This motion was made at the conclusion of the prosecutions case andwas based upon the fact that Prosecutions Exhibit No. 2 shows accusedas private first class. The defense counsel stated:

. . . He was promoted. We dont 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 aconstructive pardon on such offense.

In fact, all subsequent exhibits of the prosecution show the accusedas Pfc, and he is so charged. However, there is no showing, nor was

there any representation or contention that evidence was available toshow, that the promotion was made by a commander exercising generalcourt-martial jurisdiction, or that his mind was directed to this particularoffense and was consciously willing that the accused be grantedexception from the consequences of it. The law member, therefore,properly denied the motion R. 21).

4. Evidence for the prosecution.

As to Specification I of the Charge, the prosecution introduced acertified true extract copy of a morning report of Squadron O, l06th,AAF Base Unit, AAF ORD, Greensboro, N. C., dated 8 June 1946, toshow the inception of the absence alleged (Pros. Ex. 2). The extract ofthe morning report entry showed:

8 June 1946 X X X Mason William 6 712 867 Pvt Dy to AWOL 8 Mar 46 (0600) X X X /s/ John S. Caughman Major Air Corps

The defense objected to the exhibit on the grounds that the entrywas not made contemporaneously with the event. The document wasadmitted into evidence over objections by the defense (R., 12, 13). Toshow the termination of this absence, the prosecution offered in evidencea certified true extract copy of a morning report of Det #8, 1262ndASU, First Army, DEML Fort Dix, N. J. dated 29 November 1946(Pros. Ex. 3). The defense objected to the admission of that portion ofthe entry beginning with the word from and ending with the wordsNew Jersey as hearsay, and not within the official knowledge or dutyof the

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maker, and because it recited an apparent admission by the accused,there being no showing that the accused had been advised of his rightsR. 13). The law member sustained the objection in part, and admitted theentry into evidence with exception OF the words claiming andAWOL R. 14).

This entry reads, after deletion of these words:

28 November 1946 X X X Mason William RA 6 713 867 Pfc Race: (W) Atchd unasgd fr AAF ORD Greensboro NC . . . per par 12 SO 285 Hq 1262 ASU Ft Dix NJ EDCMR: 28 Nov 46 X X X /s/ Ralph E Wallace Lt Col CMP

As to Specification 2 of the Charge, the prosecution offered inevidence a certified true extract copy of a morning report of Det #31262nd ASU, First Army, DEML Fort Dix, N. J. dated 9 January 1947,to show the inception of the absence (Pros. Ex. 4). This entry reads asfollows:

9 Jan 1947 X X X Mason William RA 6 712 867 Pfc dy to AWOL as of 0600 6 Dec 46

X X X /s/ Ralph E. Wallace Lt Col CMP

The defense objected to the exhibit on the grounds that the entrywas not made contemporaneously with the event. This document wasadmitted into evidence over the objection of the defense R. 14). Mr.Albert D. Knight testified that he was a Deputy Sheriff residing atTampa, Florida. He arrested the accused at about 4:05 P.M. on 8 January1949, at Adamsville, Florida. He arrested him on a charge ofintoxication. However, as the accused told him that he was a member ofthe United States Air Force, the witness released accused after a periodof eight days to MacDill Field R. 15, 16). The accused told the sheriffthat he was overdue R. 16). The accused was wearing an OD shirt butno tie or cap R. 11). The prosecution offered in evidence a true extractcopy of a morning report of the Air Police Squadron, 307th Air BaseGroup, MacDill Air Force Base, Tampa, Florida, dated 19 January 1949,to show termination of the absence (Pros. Ex. 5), The defense objectedto the words beginning with the word from and ending with the figure49 as hearsay not within the required knowledge of the maker, andfurther objected to the entire entry as not having been madecontemporaneously with the happening of the event R. 18). The defensefurther objected to so much of the heading of the certificate as reads,Regiment Air Corps Unassigned Panama R. 20). The exhibit wasadmitted into evidence, over defenses objection. However, the lawmember sustained the objection in part in excluding the words frAWOL fr Air Corps Unassigned Panama apprehended by civil authTampa Fla 9 Jan 49 R. 19). The entry, as admitted, reads as follows:

19 January 1949 Mason William AF 6712867 Pfc-6 010 Atchd not jd conf sta gd house . . . ret to Mil control 14 Jan 49

/s/ Julious C. Griffin Capt., USAF Commanding

As to Specification 3 of the Charge, the prosecution introduced inevidence a true extract copy of the morning report of the Air PoliceSquadron, 307th Air Base Group, MacDill Air Force Base, Tampa,Florida, dated 5 March 1949, to show inception of the absence (Pros. Ex.5 ) . The defense objected to the words contained in the heading of thecertificate which read, REGIMENT Air Corps Unassigned Panama R.20). This morning report extract was admitted into evidence overobjection by the defense that the wording is not in accordance with thestandard procedure . . ., because it contained an uninitialled erasure, andbecause of the showing in the heading of the certificate that theaccuseds organization was Air Corps Unassigned Panama R. 19. 20),and reads:

185UNITED STATES v. MASON

(ACM 2289)

5 March 1949 Mason William AF-6712867 Pfc 6 010 Reference M/R dtd 19 Jan 49 EM reld fr atchd & dy fr this orgn by reason of AWOL fr this orgn at 0800 hours 4 Mar 49 /s/ Julious C. Griffin Capt, USAF Commanding

The prosecution introduced, for the purpose of showing thetermination of that absence a certified true copy of a morning reportentry of the Post Guardhouse, Aberdeen Proving Ground, Maryland,

dated 26 and 27 May 1949. (Pros. Ex. 6). The defense objected to somuch of the entry of 26 May 1949 as begins with the words from andends with the figure 61 as not within the personal knowledge orrequired knowledge of the maker. The defense objected to the entry of27 May 1949 on the ground that it was hearsay and furthermoreirrelevant and immaterial R. 20). The exhibit was admitted in evidenceover the objection of the defense R. 20). The entries read as follows;

26 May 49 Mason William AF 6712867 PFC Atchd & Conf fr Seymore Johnson Field Goldsborough NC by order of 1st Lt Walter R. Russell 3208th CML Ord Test Gp APG Md Violation of AW 61 2330 hrs /s/ John T. Busse 1st Lt CMP Prison Officer

27 May 49 Mason William AF 6712867 PFC Conf to Reld to AF Collecting Point Bolling Fld Washington DC Return to AF Control /s/ John T. Busse 1st Lt CMP Prison Officer

The prosecution entered another document in this connection,consisting of a true extract copy of the morning report of Hq & Hq Sq,1100th Air Base Group, Bolling Air Force Base, Washington, D. C,dated 1 June 1949 (Pros. Ex. 7). The defense objected to the admissionof that portion of the entry which was shown in parentheses (AWOL frunasgd Panama Comd Depot), and to the portion of the heading of the

certificate which shows the accuseds organization to be PanamaCommand Depot R. 20). The exhibit was admitted into evidence by thelaw member, excluding the word AWOL fr unasgd Panama ComdDepot (R-20). The entry reads, after the deletion:

1 Jun 49 Mason William AF 6712867 Pfc Atchd not jd . . . placed in conf post gd house l500 hrs 27 May 49 pending disposition in accordance with AR 615- 300 /s/ Richard E Hyman RICHARD E. HYMAN 1st Lt., USAF

5. Motions based on the evidence.

At the conclusion of the prosecutions case, the defense moved fora finding of not guilty as to Specification 1 of the Charge on the groundsthat there is no evidence of his termination as alleged. There is noevidence other than several months of time that the accused intended todesert the service and there is no evidence of the physical place that theaccused is alleged to have left at the time R. 22). After some discussionas to whether the Court could amend the Specification to substitute thewords Fort Dix, New Jersey for the words Wilmington, Delaware R.22, 23), the Court denied the motion of the defense R. 23). The Courtproperly denied the motion (MCM. 1949, par 72a).

The defense made a further motion for a finding of not guilty ofSpecification 3 of the Charge on the grounds that:

. . . there is no evidence showing the exact time orplace, in accordance with the specification by theprosecution; further, that the shortness of the time and the

alleged surrender obviously makes it not desertion. . . . R.28).

The law members ruling in denying the motion was proper(MCM, 1949, par 72a, supra).

186BOARD OF REVIEW

(ACM 2189)

6. Evidence for the defense.

The accused, after having his rights explained to him by the lawmember, elected to make an unsworn statement through counsel R. 24).In this statement, the accused stated tat he had no particular dislike forthe service. However, he never intended and did not then intend to makea career of the service. On 8 January 1949, when arrested, he was on hisway to MacDill Air Force Base to turn himself in and was in uniform atthe time but had lost his cap. He told the officer at the time that he wasabsent without leave and wanted to get back to his unit. He further statedthat he had not turned himself in prior to that time as family difficultiesprevented his doing so R. 24, 25). The defense offered nothing further,

7. Discussion.

As to the offense alleged in Specification 1 of the Charge, the Courtfound the accused guilty except of the words Wilmington, Delawarebut guilty of the substituted words Fort Dix, New Jersey. Thesubstitution of a place of apprehension shown by the proof, in lieu of theplace alleged, is proper (MCM. Par 78c. CM 261111, Kuykendall, 40BR 141. The law member properly denied accuseds objection toProsecutions Exhibits Nos. 2 and 3 on the grounds of hearsay where theobjection was based solely on the fact that the entries were not madecontemporaneously with the happening of the event (ACM 2150,

Virgilio, 2 CMR 435, 438). The inception of the period of unauthorizedabsence having been established prima facie by the morning report entryof the accuseds organization reflected in Prosecutions Exhibit No 2,the condition of absence without leave may be presumed to havecontinued until a change in the condition is shown to have occurred.

. . . Having once been shown to exist, the condition ofabsence without leave with respect to an enlistment may bepresumed to have continued, in the absence of evidence tothe contrary, until the return of the accused to military controlunder that enlistment. . . (MCM. 1949, par 146a).

The next item of evidence is Prosecutions Exhibit No. 3, whichshows the accused picked up as attached unassigned as of 25November 1946, on the morning report of another organization. Thewording thereof, after striking the comments as to accuseds status ofabsent without leave, leaves nothing which particularly explains thecircumstances of his attachment. Furthermore, the language which refersthereto, having been stricken, cannot be considered in evidence.However, we are on notice, as was the Court, that something of theoriginal makers language was stricken. We cannot, therefore, read theremaining language of the entry in the same light and as carrying thesame meaning as though there had never been any modifying languagecontained therein. In other words, although we are not free to interpretthe remaining language in the light of the particular words which havebeen expressly stricken as inadmissible, we must, nevertheless, takecognizance of the fact that something has been stricken, and that wecannot properly give literal meaning to all that remains. Nevertheless,there appears to be nothing in the entry which suggests accusedsattachment to the reporting organization was by virtue of othercircumstances. We conclude, therefore, that in the absence of otherevidence to the contrary, the accuseds unauthorized absence, whichcommenced on or about 8 March 1948, as alleged, continued untilterminated by his return to military control at Fort Dix, New Jersey, on

or about 25 November 1946. There being no evidence that the accusedsurrendered himself, as alleged and found, the record of trial will supportonly a finding as to the manner of termination of the period of absenceas finds that the accused returned to military control in a manner notshown. The accuseds long absence without leave not beingsatisfactorily explained, the Court may well infer the accused did intendat the time of absenting himself, or at some time during his absence, notto return (MCM, 1949, par 146a).

187UNITED STATES v. MASON

(ACM 2289)

As to Specification 2 of the Charge, the defenses objection toProsecution Exhibits Nos. 4 and 5 was based an similar grounds as in thecase of Prosecution Exhibits Nos. 2 and 3, and were properly denied forthe reasons hereinbefore set forth as to those objections. As to thatSpecification, the inception of the absence without leave, as alleged, isestablished prima facie by Prosecution Exhibit No. 1. In addition to theshowing of accuseds apprehension, he admitted by his unswornstatement to the Court, presented through his counsel, that when he wasapprehended he was in fact in an absent without leave status. We indulgein the same presumptions as to the continuation of this absence withoutleave until the time of his apprehension and as to his intent not to returnas were set forth in the discussion as to Specification 1. While it wasalleged in Specification 2 that the accused was at the time of the absencea member of a unit of the First Army at Fort Dix, New Jersey, there is noevidence that he was still a member of the Department of the Army atthe time of trial. The accused, however, was described in allSpecifications as currently being a member of an organization of theDepartment of the Air Force. He was so arraigned, and his identity assuch was thereby established prima facie. There was no issue raisedregarding this fact, either by the accused or by the appearance of anyaffirmative fact in the record of trial showing that he was not a member

of that organization (ACM 13, Baggett, 1 CMR 16, 22; ACM 539, Juris1 CMR 485, 489). There is no evidence that the accused had in fact beenat any time the subject of an interdepartmental transfer. It appears thatthe language of Specification 2 should have read then attached torather than than a member of, and that the words actually employedamounted to a harmless misnomer. Assuming, for the sake of argument,that the accused was in truth a member of an organization of theDepartment of the Army at the time of the offense complained of, theDepartment of the Air Force would nevertheless have had jurisdiction topunish the offense at the time of this trial. This was specifically providedfor in Section 4 of Public Law 775. Act of June 25, 1948 (62 Stat 1014[c 648, 6 USC 627j, 627k, 627i]), and leaves no doubt as to thejurisdiction of either department to prosecute such offenses.

As to Specification 3 of the Charge, the accuseds absence withoutleave during the period alleged is adequately shown by the evidence.The reviewing authoritys action appropriately disapproved so much ofthe finding of guilty as related to the manner of termination of theabsence, in view of the absence of proof of such allegations.

8. The accused was approximately 37 years of age at the time oftrial. He enlisted in the United States Air Force on 9 November 1945,having had only three months and twenty-two days previous militaryservice. His initial absence without leave was committed seven monthslater and he remained almost continually absent without leave since thattime. There is no evidenced previous convictions.

9. For the foregoing reasons, the Board of Review holds that therecord of trial is legally sufficient to support only so much of the findingof guilty of Specification 1 of the Charge as finds that the accused diddesert the service of the United States at the time and place alleged andremained absent in desertion until his return to military control at FortDix, New Jersey, on or about 26 November 1946, in a manner notshown; legally sufficient to support the findings of guilty of

Specification 2, of Specification 3 as modified by the reviewingauthority, and of the Charge; and legally sufficient to support theSentence.

BLACKSTONE (on leave), DRIER, and CASE, Judge Advocates. 12 May 1950