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: BCD, TF, 6 months, E-1. (Category1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, on or about __________, without authority and with intent to avoid (maneuvers) (field exercises), absent himself/herself from (his) (her) (unit) (organization) (place of duty at which he/she was required to be), to wit: __________ located at (__________), and did remain so absent until on or about _________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be, that is, (state the name of unit, organization, or place of duty);
(2) That this absence was without authority;
(3) That the accused remained absent until (state the date of alleged termination of absence);
(4) That the accused knew that the absence would occur during (a part of) a period of (maneuvers) (field exercises) in which (he) (she) was required to participate; and
(5) That the accused intended by (his) (her) absence to avoid (all) (part) of the period of such (maneuvers) (field exercises).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
NOTE 2: Voluntary termination and casual presence. When some evidence has been presented that raises the issue of voluntary termination of an unauthorized absence prior to the end date alleged in the specification (see US v. Rogers, 59 MJ 584 (ACCA 2003)), the following instruction should be given:
There has been some evidence that the accused was present (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location) prior to the end date alleged in (The) Specification _____ of (The) (Additional) Charge _____. Casual presence for personal reasons (on a military (installation) (base) (camp) (post)) (in a military facility) (at/on board—location), without more, does not terminate an unauthorized absence. To voluntarily terminate an unauthorized absence, the absentee must physically present (himself) (herself) to someone with authority to apprehend (him) (her), that is, a commissioned officer, a noncommissioned officer, or a military policeman (or __________) with the intent to return to military duty. The absentee must properly identify (himself) (herself) and disclose (his) (her) absentee status and submit to the control exercised over (him) (her). If the absentee does not disclose (his) (her) status, the person to whom the absentee presented (himself) (herself) must have been aware already of the absentee’s status, or had a duty to inquire and could have, with reasonable diligence, determined the absentee’s status.
The prosecution bears the burden of proof to establish beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status. In order to find the accused guilty of an unauthorized absence for the entire period alleged in the specification, you must be convinced beyond a reasonable doubt that the accused did not voluntarily terminate (his) (her) absentee status prior to the end date alleged in the specification.
(If you find that the accused went from or remained absent without authority as alleged, but voluntarily terminated (his) (her) absentee status prior to the end date alleged, but later absented (himself) (herself) from (his) (her) (unit) (organization) (place of duty at which (he) (she) was required to be), you may find the accused guilty, by exceptions and substitutions, of two or more separate unauthorized absences under one specification, provided that each unauthorized absence is included within the overall period alleged in the specification.)
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 the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate. you may not find the accused guilty of this offense unless you believe beyond a reasonable doubt that the accused actually knew that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate.
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 the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate, but you are nevertheless satisfied beyond a reasonable doubt that:
a. The accused was aware that there was a high probability that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate; and
b. The accused deliberately and consciously tried to avoid learning that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate, 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 the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate 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 the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate. Consequently, unless you are satisfied beyond a reasonable doubt that the accused either had actual knowledge that the absence would occur during (a part of) a period of (maneuvers)(field exercises) in which (he)(she) was required to participate, or that the accused deliberately avoided that knowledge, as I have defined that term, then you must find the accused not guilty.
NOTE 4: Multiple unauthorized absences under single specification. An accused may be found guilty of two or more separate unauthorized absences under one specification, provided that each absence is included within the period alleged in the specification and provided that the accused was not mislead. If an accused is found guilty of two or more unauthorized absences under a single specification, the maximum authorized punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification.
NOTE 5: Other Instructions. Instruction 7-3, Circumstantial Evidence (Intent and Knowledge) is ordinarily applicable.