Impossibility: The Inability to Return to Military Control

  1. militarydefenselawyers337When a service member is, due to unforeseen circumstances, unable to return at the end of authorized leave through no fault of his own, he has not committed the offense of AWOL as the absence is excused. MCM, pt. IV,  10c(6); see also United States v. Lee , 16 M.J. 278 (C.M.A. 1983) (mechanical problems with automobile); United States v. Calpito , 40 C.M.R. 162 (C.M.A. 1969).
  2. When a service member, already in an AWOL status, is unable to return because of sickness, lack of transportation or other disability, he remains in an AWOL status; however, the disability for part of the AWOL should be considered as an extenuating circumstance. MCM, pt. IV, 10c(6).
  3. Types of impossibility in AWOL situations.
    1. Impossibility due to physical disability.
      1. Where accused was ill at the end of his authorized leave and where, on medical advice, he remained in bed for several days before turning himself in to military authorities, the military judge should have given instructions on the defense of physical incapacity. United States v. Amie , 22 C.M.R. 304 (C.M.A. 1957); see also United States v. Irving , 2 M.J. 967 (A.C.M.R. 1976) (“[s]ickness which amounts to physical incapacity to report or otherwise comply with orders, and which is not self-induced, is a legal excuse”); United States v. Edwards , 18 C.M.R. 830 (A.F.B.R. 1955) (exceeding territorial limits of pass is not per se unauthorized absence).
      2. Evidence of accused’s dental problems which went untreated because of a difference of professional opinion did not raise the defense of physical incapacity after the accused went AWOL to receive civilian dental treatment. United States v. Watson , 50 C.M.R. 814 (N.C.M.R. 1975).
      3. Evidence raised defense of physical inability where accused, returning to his ship, was robbed and knocked unconscious and, upon regaining consciousness the next day, immediately attempted to return to his ship. United States v. Mills , 17 C.M.R. 480 (N.C.M.R. 1954).
      4. The accused was robbed the night before he was due to return to his unit and made no effort to return other than to attempt to borrow money (refusing one offer), although he was aware of his duty to return and was physically able to do so. No defense of impossibility was found. In a footnote, the court wrote that the accused was derelict in his responsibilities, because he did not contact military authorities or seek the aid of any responsible civilian agency. United States v. Bermudez , 47 M.R. 68 (A.C.M.R. 1973).
    2. Impossibility due to transportation misfortune.
      1. Where second lieutenant’s car broke down while he was returning from a weekend pass and he elected to remain with his car until it was repaired, the Manual provision concerning “through no fault of his own” does not apply as his decision was for his own convenience. United States v. Kessinger , C.M.R. 261 (A.B.R. 1952).
      2. Where a second lieutenant postponed his return from leave to assist a friend in filing an accident report, the absence was not excusable as involuntary as no inability to return existed. United States v. Scott , 9 M.R. 241 (A.B.R. 1952).
      3. Where a second lieutenant mistakenly took a “hop” to Washington, C. rather than to Atlanta, and thereafter had difficulty obtainingtransportation back to his unit, no valid defense was found. Rather, the evidence could be considered in extenuation and mitigation. United States v. Mann , 12 C.M.R. 367 (A.B.R. 1953).
    3. Impossibility due to acts of God (sudden and unexpected floods; snow; storms; hurricanes; earthquakes; or any unexpected, sudden, violent, natural occurrence) can be a defense. If the particular act of nature may be expected to occur, it is not a defense because it is foreseeable ( e.g. , a snowstorm after repeated snowstorm warnings in Minnesota in January).
    4. Impossibility due to wrongful acts of third parties includes train wrecks, plane crashes, and explosions that are not caused by the accused. These situations present a legitimate defense of impossibility.
    5. Impossibility due to civilian confinement.
      1. The inability to return to military control depends on the accused’s status at time of confinement and on the results of the civilian trial. The table below summarizes the rule. See generally MCM, pt. IV, ¶ 10c(5). (a) Delivery of soldier to civilian X X No authorities under Article 14 (b) AWOL X X Yes (c) Absent with leave X No (d) Absent with leave X Yes* *AWOL begins at expiration of leave
      2. Adjudication as a youthful offender is tantamount to a conviction within the meaning of MCM, pt. IV, ¶ 10.c.(5). United States v. Myhre , 25 C.M.R. 294 (C.M.A. 1958).
      3. A soldier who voluntarily commits an offense while on authorized leave and is apprehended and detained by civilian authorities may be charged with AWOL for the period after his leave expired until his return to military control. United States v. Myhre , 25 C.M.R. 294 (C.M.A. 1958).
      4. Where a service member, while AWOL, is apprehended, detained and acquitted by civilian authorities, absent evidence of an attempt to return to military control, the entire period of time is chargeable as AWOL. United States v. Grover , 27 C.M.R. 165 (C.M.A. 1958); United States v. Bowman , 49 C.M.R. 406 (A.C.M.R. 1974) (while AWOL, accused was arrested and convicted for a civilian offense; civilian authorities did not make the accused available to return to military control; the AWOL continued through the entire time period he was in civilian control).
      5. Where accused was granted “special leave” to answer civilian charges, he could not later be convicted of AWOL for the time spent in civilian jail if convicted by civilian authorities. United States v. Northrup , 31 C.M.R. 73 (C.M.A. 1961); United States v. Williams , 49 M.R. 12 (C.M.A. 1974).
      6. Absent an arrest on behalf of the military, an offer to turn the service member over to military authorities, or a notification that the civilian authorities are not going to prosecute, the Army does not have an affirmative duty to seek the release to military authorities of an absent soldier held in a civilian jail on civilian charges. United States v. Bowman , 49 C.M.R. 406 (A.C.M.R. 1974) (distinguishing United States v. Keaton , 40 C.M.R. 212 (C.M.A. 1969)).

Types of impossibility in AWOL situations.

Impossibility due to physical disability.