United States v. Gonzales

DECISION

MILES, Judge:

Consistent with his plea, accused was convicted of absence without leave in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886. However, the military judge erred in accepting the accused’s plea of guilty because the accused testified he was not aware of his obligation to report for active military service.

The accused served on active duty from 5 April 1972 until 16 June 1978. He was then honorably discharged and enlisted in the Air Force Reserve. Thereafter, he failed to attend reserve meetings and was sent orders, by certified mail, directing his return to active military duty on 20 August 1979. On 9 March 1980, he was returned to military control. He was charged with absence without leave from 20 August 1979 to 9 March 1980.

During the providency inquiry into his plea of guilty and throughout the trial, the accused, though acknowledging receipt of his orders to active duty, steadfastly maintained that he had not read the orders, did not know their effective date, and did not know that he was required to report to active duty. He claimed he simply threw them away as he had other material from the reserves. The accused lived about three *898fourths of a mile from the Air Force Base where he was ordered to report, kept a listed phone number and when arrested by civilian police simply told them it was a mistake-he was not in the Air Force and had been discharged.

Article 45 of the Code, 10 U.S.C. § 845, supra, requires a plea of guilty to be provident and in accordance with the actual facts. United States v. Moglia, 3 M.J. 216 (C.M.A.1977); United States v. Johnson, 1 M.J. 36 (C.M.A.1975); United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). When an accused’s response during a providence inquiry is inconsistent with his plea, the trial judge must further inquire to determine the full extent of the inconsistency and, unless the accused disavows the inconsistent statement, the plea must be rejected. Article 45, Code, supra; United States v. Jemmings, 1 M.J. 414 (C.M.A.1976); United States v. Reeder, 22 U.S.C.M.A. 11, 46 C.M.R. 11 (1972); United States v. Kaetzel, 48 C.M.R. 58 (A.F. C.M.R.1973).

An accused’s response during a guilty plea inquiry can not be disregarded as implausible, unreliable or incredible. United States v. Smith, 1 M.J. 703 (A.F.C. M.R.1975); United States v. Stinson, 35 C.M.R. 711 (A.F.B.R.1964), pet. denied, 15 U.S.C.M.A. 672, 35 C.M.R. 478 (1964). Such a statement must be accepted at face value in determining the sufficiency of the plea. United States v. Jemmings, supra.

In this case, the accused’s continued assertions that he did not know that he had to report to active duty, whether believable or not, were inconsistent with his plea of guilty, and the findings of guilty and the sentence must therefore be set aside. United States v. Shackleford, 2 M.J. 17 (C.M.A. 1976); United States v. Roby, 23 U.S.C.M.A. 295, 49 C.M.R. 544 (1975); United States v. Timmins, 21 U.S.C.M.A. 475, 45 C.M.R. 249 (1972); United States v. Kaetzel, supra; United States v. Norris, 47 C.M.R. 224 (A.F.C.M.R.1973).

A rehearing may be ordered.

EARLY, Chief Judge, and ARROWOOD, Judge, concur.

DECISION UPON RECONSIDERATION

PER CURIAM:

Upon original review of the record of trial in this case, this Court, by its decision dated 10 July 1980 set aside the findings of guilty and the sentence. On 31 July, we decided to reconsider this decision on our own motion. Having so reconsidered, we adhere to our original decision.