United States v. Williams

Latimer, Judge

(concurring):

I concur.

This accused absented himself from his unit at Keesler Air Force Base, *84Mississippi, on March 28, 1957, and was apprehended on April 6, 1959, by civilian authorities. However, he used an alias and did not disclose his service connections until August 27, 1959, and then only after he was informed that a comparison of fingerprints established he was hiding his true identity. He was tried, convicted, and sentenced in September 1959 but was not turned over to military control until October 9, 1959. It was necessary for the Air Force to transport him to Keesler Air Force Base, and this was some 450 miles from his place of confinement in the civilian jail. He was returned to that base and confined on October 27, 1959, but the intervening time is not unreasonable in light of the problems attendant to returning accused to the base in Mississippi. See United States v Garner, 7 USCMA 578, 582, 23 CMR 42. He . was tried and convicted February 9, 1960, but defense counsel concede that the time between January 29, 1960, and trial should not be included in the delay period. Accordingly, I find that we are concerned only with a period of ninety-four days.

Without relating all of the necessary time-consuming details which are incidental to gathering the necessary records of a deserter, seeking out evidence concerning his activities while absent which might shed light on his intent, investigating the offense, conducting a pretrial hearing, referring charges, appointing and assembling courts, obtaining counsel and performing many proper functions which are necessary to assure both parties an opportunity to present facts on the substantive offense and extenuating and aggravating circumstances on sentence, I merely say this record does not entitle the accused to a dismissal. He was furnished counsel at the pretrial hearing, and at no time did he seek an earlj hearing. Furthermore, he does not contend that his defense was impaired or in any way affected, and the only prejudice he claims is that during the pretrial preparations he was incarcerated. But there can be no question regarding the propriety of accused’s pretrial confinement. United States v Wilson, 10 USCMA 337, 339, 27 CMR 411. And I note parenthetically that the record shows he received credit for that time as the convening authority reduced the two-year sentence of confinement by four months upon recommendation of the staff judge advocate that the accused be credited, with the time served prior to trial. Accordingly, under the facts of this record, I am not disposed to hold that, as a matter of law, the law officer erred when he denied accused’s motion to be set free.

A further expression of my views on the law in this area, which cause me to concur with the Chief Judge, may be found in United States v Wilson, 10 USCMA 398, 27 CMR 472; United States v Brown, 10 USCMA 498, 28 CMR 64; United States v Batson, 12 USCMA 48, 30 CMR 48. See also United States v Hounshell, 7 USCMA 3, 21 CMR 129; United States v Callahan, 10 USCMA 156, 27 CMR 230; United States v Davis, 11 USCMA 410, 29 CMR 226.