UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                         Sergeant MICHAEL L. TREAT
                         United States Army, Appellant

                                  ARMY 20110402

            Seventh U.S. Army Joint Multinational Training C ommand
                          Wendy Daknis, Military Judge
            Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on brief).

                                  25 October 2013

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                            OPINION OF THE COURT
                           -----------------------------------

CAMPANELLA, Judge:

       A military judge sitting as a special court-martial convicted appellant,
contrary to his pleas, of missing movement and making a false official statement in
violation of Articles 87 and 107, Uniform Code of Military Justice, 10 U.S.C. §§
887, and 907 (2006) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a bad-conduct discharge, confinement for three months, and
reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellate
defense counsel raised two of assignments of error to this court. The first
assignment of error merits discussion but no relief. The remaining assignment of
error is without merit.
TREAT—ARMY 20110402

                                       FACTS

       Appellant was a combat engineer assigned to the 370th Sapper Company, 54th
Engineer Battalion, in Bamberg, Germany. The unit was notified during the summer
of 2010 that it was to deploy in late 2010 to Afghanistan in support of Operation
Enduring Freedom. While the original orders indicated deployment would occur on
or about 19 November 2010, appellant was scheduled to deploy with Main Body 1 of
his unit on 17 November 2010. Appellant was aware of this date. Not only did he
attend unit briefings where this date was announced, appellant trained with his unit,
completed all pre-deployment certification and training, and was told the
deployment window could be moved forward or delayed by forty-eight to seventy-
two hours.

       On 17 November 2010, the deployment date was delayed, and the flight
appellant was directed to take ultimately occurred on 19 November 2010, two days
after his unit was originally scheduled to leave. Appellant was not present for the
movement.

       The government charged appellant with missing movement in violation of
Article 87, UCMJ. Charge II and its Specification alleged appellant:

             did, at or near Bamberg, Germany, on or about 17
             November 2010, through design, miss the movement of
             Flight TA4B702 with which he was required in the course
             of duty to move.

     At trial, appellant’s primary defense was he had been abducted on 15
November 2010 at a German bar by Russian-speaking men and not released until 20
November 2010, after the unit’s movement had already taken place.

       The government did not believe appellant’s story to Army criminal
investigators and used appellant’s statements regarding the abduction as the basis for
a charge of making a false official statement in violation of Article 107, UCMJ.
Evidence presented at trial showed that appellant confided in at least one soldier that
the story of his kidnapping was fabricated. Ultimately, the military judge found
appellant guilty and convicted him of making a false official statement.

       Regarding the missing movement charge, the military judge found appellant
guilty of missing movement by excepting the words “Flight TA4B707” and
substituting therefor the words “the flight dedicated to transport Main Body 1 of the
54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base,
Kyrgzstan.”




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TREAT—ARMY 20110402


       The modified specification read as follows:

             In that Sergeant Michael L. Treat, U.S. Army, did, at
             Bamberg, Germany, on or about 17 November 2010,
             through design, miss movement of the flight dedicated to
             transport Main Body 1 of the 54 th Engineer Battalion from
             Ramstein Air Base, Germany, to Manas Air Base,
             Kyrgzstan with which he was required in the course of
             duty to move.

                              LAW AND DISCUSSION

       In his first assignment of error, appellant alleges a fatal variance exists
because the government alleged appellant missed the mo vement of a particular flight
on a specific day but the military judge modified the specification at findings to
reflect that appellant instead missed the movement of a particular unit. In response,
the government argues that appellant waived this issue a t trial, but if not waived, the
military judge’s modifications did not amount to a fatal variance. 1

      Fundamental due process demands an accused be afforded the opportunity to
defend against a charge before a conviction based upon that charge can be sust ained.
United States v. Teffeau, 58 M.J. 62, 67 (C.A.A.F. 2003). Such fundamental due
process is violated when an appellant’s conviction is predicated upon a different
incident than the one originally alleged in the specification. A variance between
pleadings and proof exists when evidence at trial establishes the commission of a
criminal offense by the accused, but the proof does not conform strictly with the
offense alleged in the charge. United States v. Allen, 50 M.J. 84, 86 (C.A.A.F.
1999). Although the Rules for Courts-Martial [hereinafter R.C.M.] authorize
findings by “exceptions and substitutions,” they do not allow for such exceptions
and substitutions to be “used to substantially change the nature of the offense.”
R.C.M. 918(a)(1).

       As noted in the discussion of R.C.M. 918(a)(1), “[c]hanging the date or place
of the offense may, but does not necessarily, change the nature or identity of the
offense.” R.C.M. 918(a)(1) discussion. Minor variances “as to the location or date

1
  While appellant’s defense counsel did not raise any concerns with the military
judge about the flight number in a R.C.M. 917 motion or an express objection, we
decline to find waiver in this case because appellant’s defense counsel challenged
the government’s theory of the case regarding the flight number in his closing
argument on the merits.




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TREAT—ARMY 20110402

of an offense” do not necessarily change the nature of the offense and in turn are not
necessarily fatal, especially where the government has made use of the “on or about”
language in the charged specification. Teffeau, 58 M.J. at 66 (C.A.A.F. 2003)
(citing United States v. Hunt, 37 M.J. 344, 347- 48 (C.M.A. 1993)). The words “on
or about” are “words of art in pleading which generally connote any time within a
few weeks of the ‘on or about’ date.” United States v. Brown, 34 M.J. 105, 110
(C.M.A. 1992) (internal citations omitted). Therefore, in this case, regarding Charge
II and its specification, the difference between the charged language, “on or about
17 November 2010,” and the proof that the movement actually occurred on 19
November 2010 does not change the nature or identity of the offense. Brown at 110.

        In United States v. Marshall, 67 M.J. 418 (C.A.A.F. 2009), our superior court
stated, “to prevail on a fatal variance claim, an appellant must show both that the
variance was material and that he was substantially prejudiced thereby. ” Id. at 420.
See also United States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006); Hunt, 37 M.J. at
347; United States v. Lee, 1 M.J. 15, 16 (C.M.A. 1975); United States v. Hopf, 1
U.S.C.M.A. 584, 586, 5 C.M.R. 12, 14-15 (1952). “A variance can prejudice an
appellant by (1) putting ‘him at risk of another prosecution for the same conduct,’
(2) misleading him ‘to the extent that he has been unable adequately to prepare for
trial,’ or (3) denying him ‘the opportunity to defend against the charge. ’” Marshall,
67 M.J. at 420 (citing Teffeau, 58 M.J. at 67).

        In this case, appellant argues the military judge’s change to the specification
was material because it allowed the government to convict him o n a theory of
liability that was not charged. He further argues that this change prejudiced his
right to defend against the specification of which he was convicted. We disagree on
both counts.

       The offense of “missing movement” was drafted as a specific punitive article
following World War II when experience taught that a large number of military
personnel “failed to show when their units or ships moved as such, perhaps to
combat or forward areas. The seriousness of the offense results from the disruption
of the scheduling and movement of an integrated, cohesive, perhaps self -sufficient
and interdependent group of military men that may well have trained to perform as a
unit.” 81st Cong., 1st Sess., on S. 857 and H.R. 4080 at 37 (emphasis added). Early
cases by and large limited application of the offense to situations where the
movement of units or groups of military personnel were involved. See, e.g., United
States v. Jackson, 5 C.M.R. 429 (A.F.B.R. 1952); United States v. Burke, 6 C.M.R.
588 (A.F.B.R. 1952). Since then, application of the offense has been broadened to
cover the movement of individual service members, it having been recognized that,
absent large-scale training exercises or emergencies requiring the immediate
presence of a large force, this is the most common method of movement—moving
individuals to a unit rather than moving the unit itse lf. See United States v. Graham,
16 M.J. 460, 464 (C.M.A. 1983). See also United States v. Johnson, 3 U.S.C.M.A.


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TREAT—ARMY 20110402

174, 11 C.M.R. 174 (1953); United States v. St. Ann, 6 M.J. 563 (N.C.M.R. 1978),
pet. denied, 7 M.J. 392 (C.M.A. 1979).

       Based on these developments, the Manual for Courts-Martial was broadened
regarding the crime of missing movement and now discusses mode of movement,
making specific reference to movement of a unit and movement of individuals as
passengers aboard ships or aircraft. Manual for Courts-Martial, United States (2008
ed.) [hereinafter MCM], pt IV, ¶ 11.c.(2). With respect to movement of individuals
it provides: “If a person is assigned as a crew member or is ordered to move as a
passenger aboard a particular ship or aircraft, military or chartered, then missing the
particular sailing or flight is essential to establish the offense of missing
movement.” Id. at ¶11 c.(2).(b). With respect to “unit,” the MCM states if a person
is required to move with a unit, the mode of travel is not important, whether it be
military or commercial . . . .” Id. at ¶11 c.(2).(a).

       While the missing movement charge in this case was perhaps inartfully
drafted, referring to a particular flight number, the charge was clearly aimed directly
at appellant’s purposeful missing of his unit’s flight. The defense argues that the
government prosecution theory changed when the military judge excepted the flight
number and substituted a description of what the flight number represented, namely
the flight of Main Body 1. The theory of the case, however, remained the same,
namely, that the appellant missed his unit’s flight upon which he was required to
move and that he did so through his own design.

        The military judge gave no credence to appellant’s kidnapping yarn and found
that appellant stayed away from his unit by design during the deployment window
and ultimately frustrated all efforts by members of his unit to have him deploy as
directed. We concur in that assessment. In light of the facts and circumstances
found here, appellant’s contention that the government failed to prove a specific
flight number moved at all misses the point entirely. The important thing is not
whether that specific flight number left, but whether the unit’s flight took place at
all. It most assuredly did move–without appellant aboard.

       Further, the MCM states that “knowledge of the exact hour or even the exact
date of the scheduled movement is not required. It is sufficient if the approximate
date was known by the accused as long as there is a c ausal connection between the
conduct of the accused and the missing of the scheduled movement. Knowledge may
be proved by circumstantial evidence.” MCM, pt IV, ¶11. c.(5). There was
sufficient evidence produced in this case to establish appellant’s knowledge of the
pending flight. Most notably, appellant’s company commander testified the unit,
including appellant, was aware of the 17 November 2010 date and the deployment
window could shift by forty-eight to seventy-two hours. It is clear from the facts
before us that appellant had actual knowledge of the unit’s flight.




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TREAT—ARMY 20110402

       We are not convinced under the facts of this case that the nature of the
offense was substantially changed to the extent necessary to establish a material
variance. See generally Finch, 64 M.J. at 121. However, even if we were to assume
that a material variance does exist, appellant has failed to demonstrate prejudice.
Appellant is in no danger of double jeopardy in this case. The movement which
appellant missed is not in dispute. Moreover, the record of trial is thorough
regarding the circumstances surrounding his crimes and protects appellant from
subsequent prosecution. Additionally, t here is no evidence appellant was unable to
adequately prepare for trial or that he was denied the opportunit y to defend against
the charge. Appellant's explanation as to why he was misled at trial falls short. 2 To
the contrary, appellant was aware of the contested issue–that his unit’s flight moved
without him on or about 17 November 2010. The thrust of appellant’s defense at
trial was that his “abduction” prevented him from being on this flight with his unit
when it departed during the deployment window.

      In the court’s view, appellant's claim of prejudice is not substantiated, and
we, therefore, find no fatal variance in this case.

                                   CONCLUSION

       On consideration of the entire record and the submissions of the parties, we
hold the findings of guilty and the sentence as approved by the convening authority
are correct in law and fact.



2
  Appellant’s defense counsel, in matters submitted in their clemency request and
pursuant to R.C.M. 1105, alleged: (1) the military judge created a fatal variance
when she modified the specification as charged; (2) it was error for the military
judge to find beyond a reasonable doubt that the flight occurred on 17 November
2010; and (3) there was insufficient evidence to support a finding of guilty to the
charged offense where appellant had no actual knowledge of the movement time.
While the staff judge advocate (SJA) responded to the first two allegations, he failed
to respond to the third allegation of error in his recommendation or addendum to the
convening authority (CA). To the extent this allegation can be construed as legal
error, the SJA should have responded. See R.C.M. 1106(d)(4). However, pursuant
to United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988), we are “free to affirm
when a defense allegation of legal error would not foreseeably have led to a
favorable recommendation by the [SJA] or to corrective action by the [CA].” Based
on the record before us and consistent with this opinion, we find any legal error
raised by this allegation lacked merit and would not have resulted in a favorable
recommendation by the SJA or any corrective act ion by the CA.




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    Accordingly, the findings of guilty and the sentence are AFFIRMED.

    Senior Judge COOK and Judge HAIGHT concur.

                                   FOR
                                   FOR THE
                                       THE COURT:
                                           COURT:




                                   MALCOLM H.
                                   MALCOLM     H. SQUIRES,
                                                  SQUIRES, JR.
                                                            JR.
                                   Clerk of Court
                                   Clerk of Court




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