The bad conduct discharge in this case is not, in my view, manifestly unjust and inappropriate as opined by Judge Baum in his dissenting opinion. Appellant’s case was processed and its disposition controlled by the law and policy in effect at the time of appellant’s return to military control. The ALNAV policy discussed by Judge Baum does not apply to his circumstances. An unauthorized absence of nearly six years is a very serious offense under the UCMJ, adversely affecting military readiness and discipline. That fact is unaltered by an administrative policy [whether denominated as forgiveness, pardon, compassion or any other term] whose operative criteria are that the desertion or unauthorized absence occurred within a precise parameter of time and application has been made for processing after the effective date of the policy announcement by eligible members who have not received a punitive discharge by court-martial. Whether for administrative convenience in processing applicants or otherwise, motivation for the absence has not been made a relevant factor in determining applicability of the policy. The result is predictably anomalous; identical circumstances motivating a serviceman’s declination to serve result in sanctions being applied in some cases but not in others. To eliminate the anomaly and treat all such cases equally would require that all unauthorized absentees, past, present and future, not be held accountable for their conduct, regardless of the motivation. Since military service in many respects is onerous and distasteful enough, even without a combat environment, adoption of that course would sound the death knell of an effective military force. The alternative to no accountability, which we follow in this case, is to apply the law in cases before us which have not been specifically precluded by executive decision from criminal prosecution pursuant to the Uniform Code of Military Justice. Appellant is not thereby unfairly punished; he merely fails to qualify for the visitation of executive grace upon his delict.
The findings and sentence as approved on review below are affirmed.
Judge GLASGOW concurs.