NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: 2/3 pay/month x 1 month, 1 month, E-1. (Category1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did (at/on board—location), on or about __________, without authority, (fail to go at the time prescribed to) (go from) (his) (her) appointed place of duty, to wit: (here set forth the appointed place of duty).
c. ELEMENTS:
(1) That (state the certain authority) appointed a certain time and place of duty for the accused, that is, (state the certain time and place of duty);
(2) That the accused knew that (he) (she) was required to be present at this appointed time and place of duty; and
(3) That (state the time and place alleged), the accused, without authority, (failed to go to the appointed place of duty at the time prescribed) (went from the appointed place of duty after having reported at such place).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: Applicability of specification. This specification applies whether a place of rendezvous for one or many and contemplates a failure to repair for routine duties as prescribed by routine orders, e.g., kitchen police, etc., but doesn’t apply to an ordinary duty situation to be at one’s unit or organization.
NOTE 3: “Deliberate avoidance” raised. The following instruction should be given when the issue of “deliberate avoidance,” as discussed in US v. Adams, 63 MJ 223 (CAAF 2006), is raised:
I have instructed you that the accused must have known that (he) (she) was required to be present at the appointed time and place of duty. You may not find the accused guilty of this offense unless you believe beyond reasonable doubt that the accused actually knew that (he) (she) was required to be present at the appointed time and place of duty.
The accused may not, however, willfully and intentionally remain ignorant of a fact important and material to (his) (her) conduct in order to escape the consequences of criminal law. Therefore, if you have a reasonable doubt that the accused actually knew that (he) (she) was required to be present at the appointed time and place of duty, but you are nevertheless satisfied beyond a reasonable doubt that:
a. The accused was aware that there was a high probability that (he) (she) was required to be present at an appointed time and place of duty; and
b. The accused deliberately and consciously tried to avoid learning that (he) (she) was required to be present at an appointed time and place of duty, then you may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of actual knowledge.
In other words, if you find the accused had (his) (her) suspicions aroused that (he) (she) was required to be present at a certain place of duty at a time prescribed, but then deliberately omitted making further inquiries because he wished to remain in ignorance, you may find the accused had the required knowledge.
I emphasize, however, that knowledge cannot be established by mere negligence, foolishness, or even stupidity on the part of the accused. The burden is on the prosecution to prove every element of this offense beyond a reasonable doubt, including that the accused actually knew that (he) (she) was required to be present at the appointed time and place of duty. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that (he) (she) was required to be present at the appointed time and place of duty, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
NOTE 4: Other instructions. Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable.