During a week in which Sergeant Bowe Bergdahl pled guilty in one of the highest profile desertion cases in military history, you may have missed news of another desertion case. On October 12th, Seminole County Sheriff’s deputies arrested Jeffrey Michels for military desertion. Forty years ago, in July 1977, Jeffrey Michels failed to report for duty at the Minot Air Force Base in North Dakota. Instead, he apparently deserted; assumed the name Jeffrey Lantz; settled in Florida; married and had kids; and established a construction business. While the the newspaper headlines sound sensational, it is important to remember that Mr. Michels is entitled to the protections of due process; due process that means prosecuting this case is more difficult than the Air Force expects. There is even a chance that Mr. Michels could walk away without a conviction
Statute of Limitations
Mr. Michel’s arrest last week in Sanford, Florida put an end to his desertion, but it signals the beginning of the often misunderstood prosecution of military deserters. The confusion is held by the public, but also unfortunately the military authorities responsible for prosecuting and defending these cases. The confusion revolves around the statute of limitations and its application to desertion and unauthorized absence offenses. For instance, in his article about Mr. Michel’s arrest, reporter Jared Gilmour quotes an International Business Times article stating, “there’s no statute of limitations for military crimes….” This statement is not true. Through Article 43 of the Uniform Code of Military Justice (UCMJ), Congress established a statute of limitations for military crimes. The author of the misquoted International Business Times article, Roger Baird, actually wrote that “there is no statute of limitations for desertion.” This statement is also not 100% accurate as I will discuss below.
Current and former versions of Article 43 (UCMJ), have only ever carved out a few exceptions to the statute of limitations. For instance, in its current version, Article 43 states that a person charged with the offenses of murder, rape or sexual assault, rape or sexual assault of a child, any offense punishable by death, and most importantly to this blog article, “absence without leave or missing movement in a time of war” may “be tried and punished at any time without limitation.” However, Mr. Michels deserted in 1977, not during a time of war (direct U.S. involvement in Vietnam ended in 1973). For most other offenses, including desertion not during a time of war, the current version of Article 43 establishes a statute of limitations of five years.
However, it is not the current Article 43 five year statute of limitations which applies to Mr. Michels, but the three year statute of limitations in the Article 43 in effect at the time he deserted. In 2003, the United States Supreme Court held that a new law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto clause if it is used to revive a previously time-barred prosecution. Stogner v. California, 539 U.S. 607 (2003). In 1977, when Mr. Michels deserted, the Manual for Courts-Martial (1969 revised edition) and Article 43 were in effect. At that time Article 43(b) stated, “a person charged with desertion in a time of peace…is not liable to be tried by a court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command.”
So in 1977, the statute of limitations for desertion in a time of peace was three years. That three years also causes confusion for many military justice practitioners who misunderstand when the statute of limitations clock begins ticking and what must be done to stop it.
Instantaneous or Continuous Offense?
Prosecutors and convening authorities often incorrectly consider unauthorized absence offenses, like desertion, as continuous offenses for which the statute of limitations period does not begin to run until the deserter is caught. While this makes sense logically—the deserter makes the decision each day not to turn himself in—the courts view unauthorized absence offenses differently. Military courts have consistently held that “the offense of absence without leave is not a continuing offense and is complete when the accused initially departed from his unit of assignment,” and that “‘unauthorized absence…is not a continuing offense, so the statute of limitations begins to run against the offense at the moment of the inception of the absence, not its termination.” United States v. Salter, 20 M.J. 116, 117 (C.A.A.F. 1985); United States v. Francis, 15 M.J. 424, 427 (C.A.A.F. 1983).
Since Mr. Michels committed an instantaneous offense (desertion) in 1977 when the statute of limitations for such an offense was three years and more than 40 years passed before his arrest, he is home-free right? Not necessarily. There’s a chance the Air Force tolled (stopped) the statute of limitations for his offense prior to the three years.
Tolling the Statute of Limitations
Tolling the statute of limitations basically means stopping the statute of limitations clock by showing that prior to the time expiring the command was aware of the offense and ready to press charges. As mentioned in Article 43(b) above, in order to toll the three year statute of limitations for desertion, there needed to be receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command within three years of the desertion. In Mr. Michel’s case, that means the Air Force needed to provide receipt of sworn charges to the summary-court martial convening authority before July 1980.
This is where these types of cases become difficult for prosecutors. How can they now, 40 years later, prove that the sworn charges were received by an officer exercising summary court-martial jurisdiction within the requisite three years? Department of Defense Form 458 is the current court-martial charge sheet. On the back of this form, there is a block requiring a signature to acknowledge receipt of the sworn charges by the officer exercising summary court-martial jurisdiction. Although DD Form 458 did not exist in 1977, there was a similar charge sheet form and on the back of form, a similar block to acknowledge receipt by the summary court-martial convening authority:
With current technology, creating these charge sheets within the statute of limitations and storing them until a deserter is eventually caught is rather routine. But for the prosecution in a case like Mr. Michel’s which predated the digital age, it can oftentimes be very difficult to track and introduce at trial the charge sheets which are now at least 37 years old. His charge sheet may be destroyed or misplaced (or the Air Force has a copy and this case will be fairly routine).
Appellate court cases such as United States v. Rodgers, 24 C.M.R. 36 (1957); United States v. Salter, 20 M.J. 116 (C.M.A. 1985); and United States v. Miller, 38 M.J. 121 (C.M.A. 1993) show that confusion in handling the statute of limitations issues within unauthorized absence cases remains a recurring issues for military courts, prosecutors, and defense counsel. Oftentimes, the military defense attorneys handling these long-term deserter cases are very junior and are just as unfamiliar with the law as the staff judge advocates and military prosecutors they are facing. These types of cases typically resolve with pretrial agreements to plead guilty at courts-martial in exchange for a limited amount of time in the brig, but the agreements almost always allow for a punitive discharge. However, in certain cases, like those where a copy of the original DD Form 458 no longer exists, a defense attorney willing to hold the military accountable for dotting its I’s and crossing its T’s may ensure that the client avoids a court-martial conviction, jail time, and a punitive discharge. As the International Business Times article references, there are over 50,000 men and women in a deserter status in the United States. Within those 50,000 cases there are many cases where the statute of limitations and its tolling are sure to generate confusion. It will be interesting to follow those cases, as well as Mr. Michels’, to see if the military handles them correctly.
Matthew Smith is an attorney practicing criminal defense law (including military law) in Tampa, Florida. Prior to starting his private law practice he served nine years as a judge advocate (JAG) in the Marine Corps with 7 years of those years involved with military justice, including five and a half years as a Marine Corps defense counsel. He can be reached at firstname.lastname@example.org or 813-591-5913.