UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                              COOK, HAIGHT, and MAGGS 1
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Private E2 URIEL RIVASCHIVAS
                            United States Army, Appellant

                                    ARMY 20140471

                                 Headquarters, I Corps
                     Jeffery Lippert, Military Judge (arraignment)
                          Andrew Glass, Military Judge (trial)
                    Colonel William R. Martin, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick
Gordon, JA; Captain Ryan T. Yoder, JA (on brief).

For Appellee: Major A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).


                                       24 July 2015

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

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of desertion and false official statement, in violation of
Articles 85 and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 907
(2006; 2012) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for three months, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error, which merits discussion but no relief.




1
    Judge MAGGS took final action in this case while on active duty.
RIVASCHIVAS — ARMY 20140471

                                  BACKGROUND

       Appellant was charged with deserting the U.S. Army in December 2007 and
remaining in unauthorized absence until January 2014. Shortly after appellant’s
return to Fort Lewis, Washington, charges were preferred against him on 28 January
2014, received by the summary court-martial convening authority on that same day,
and ultimately referred to trial on 10 April 2014. On 27 May 2014, appellant
pleaded guilty by exceptions and substitutions to a desertion that terminated in
February 2008. During the providence inquiry, appellant explained he originally
“tried to come back into Army control” in February 2008 by turning himself in at
Naval Station Great Lakes in Illinois but ultimately remained absent from the Army
until his return to Fort Lewis in January 2014.

       Despite appellant being absent for more than six years, the government
elected to not “prove up” the longer desertion as charged and let the conviction
stand in accordance with the pleaded exceptions and substitutions. This decision to
not go forward with the period of absence as charged did not affect the maximum
potential punishment in this case, because the presidentially-set cap for the crime of
desertion is not contingent on the duration of the absence. Appellant
unconditionally waived his pretrial Article 32, UCMJ, hearing, pleaded guilty
without benefit of a pretrial agreement, and did not enter into a stipulation of fact.
Any potential bar to prosecution because of the statute of limitations was never
mentioned or discussed.

       On appeal, appellant claims the military judge abused his discretion by
accepting appellant’s guilty plea without a knowing and affirmative waiver of the
statute of limitations. We disagree.

                              LAW AND DISCUSSION

       Article 43(b)(1), UCMJ, states, “[e]xcept as otherwise provided in this section
(article), a person charged with an offense is not liable to be tried by court-martial if
the offense was committed more than five years before the receipt of sworn charges
and specifications by an officer exercising summary court-martial jurisdiction over
the command.” Because absence without leave (AWOL) and desertion are “not
continuing offenses and are committed, respectively, on the day the person goes
absent [or] deserts,” appellant is considered to have committed his crime of
desertion when he first left in December 2007. Rule for Courts-Martial [hereinafter
R.C.M.] 907 discussion; see also United States v. Tunnell, 23 M.J. 110, 111 (C.M.A.
1986). However, “[w]hen computing the statute of limitations, periods in which the
accused was . . . absent without leave or in desertion are excluded.” R.C.M. 907
discussion; see also UCMJ art. 43(c).

      Appellant’s position is that when applying the dates to which appellant
pleaded guilty as well as applying the obvious and proper exclusion of appellant’s


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RIVASCHIVAS — ARMY 20140471

admitted period of unauthorized absence, the statute of limitations presumably
barred prosecution of any charges received after February 2013—that is, five years
after February 2008. Appellant’s charges were received by the summary court-
martial convening authority on 28 January 2014, thereby stopping the running of the
statute of limitations on that date, nearly a full year beyond when the Article
43(b)(1) statute of limitations possibly expired. With that in mind, appellant
highlights that he did not make an effective waiver of the period of limitation.

       The law is clear. In order “to waive the defense of the statute of limitations,
the appellant must be personally aware of that right and must knowingly and
affirmatively waive it on the record.” United States v. Brown, 30 M.J. 907, 909
(A.C.M.R. 1990). Just how concrete the requirement is that any waiver of the
statute of limitations be express and knowing has been detailed by our superior
court:

             Almost 28 years ago, we held that it was “well established
             in military jurisprudence that whenever it appears that the
             statute of limitations has run against an offense,” that fact
             will be brought to the attention of the accused by the
             court. We further held that we would not impose upon an
             accused a waiver of the right to plead the statute of
             limitations in bar of trial when the record does not
             disclose that he was aware of that right. This principle of
             open-court advisement was recognized in paragraph 68c of
             the Manual for Courts-Martial, United States, 1951, and in
             the 1969 Manual for Courts-Martial . . . see R.C.M.
             907(b)(2)(B), Manual for Courts-Martial, United States,
             1984. It was reaffirmed by this Court in United States v.
             Arsneault, 6 M.J. 182 (C.M.A. 1979), and even more
             recently in United States v. Jackson, [20 M.J. 83 (C.M.A.
             1985]. It is too well-established in military law to require
             further elaboration here.

United States v. Salter, 20 M.J. 116, 117 (C.M.A 1985) (internal citation omitted).
Accordingly, appellant asserts that he could not have made an effective waiver
because the military judge did not ascertain on the record if appellant knowingly and
voluntarily waived the statute of limitations.

       We find the statute of limitations did not bar prosecution of appellant’s
desertion. Generally, Article 43, UCMJ, imposes a 5-year time bar. However, a
desertion or AWOL in time of war “may be tried and punished at any time without




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RIVASCHIVAS — ARMY 20140471

limitation.” UCMJ art. 43(a). 2 Therefore, if December 2007, the date of appellant’s
absence, was during a “time of war,” then the 5-year limitation did not apply, there
was no bar to waive, and there would have been no requirement to discuss the issue
further.

      Our sister court, the United States Coast Guard Court of Military Review,
addressed this very issue with respect to an appellant who pleaded guilty to an
unauthorized absence from 1968 to 1971, and the charges were received beyond the
peace-time statute of limitations applicable at that time. United States v. Scott, 46
C.M.R 541 (C.G.C.M.R. 1971). That court explained:

                The bar of the statute of limitations may be waived so
                long as the accused is aware of his right to assert it. A
                plea of guilty, after explanation of its effect with respect
                to the statute of limitations, operates as such a waiver. In
                a proper case where the statute of limitations, if asserted,
                would have barred trial, the military judge could not
                accept a plea of guilty without questioning the accused
                personally and satisfying himself that the accused
                knowingly and understandingly desired to waive. It was
                not necessary in the instant case for the military judge to
                have questioned [appellant] on this point, however,
                because the AWOL charged was, in contemplation of law,
                an AWOL committed in time of war.

Id. at 544 (internal citations omitted).

      We, likewise, find it was not necessary in this case for the military judge to
discuss waiver of the statute of limitations with appellant as his admitted desertion
in December 2007 was in a time of war—at least for purposes of Article 43, UCMJ.



2
      The full text of Article 43(a), UCMJ, reads, “A person charged with absence
without leave or missing movement in time of war, with murder, rape, or rape of a
child, or with any other offense punishable by death, may be tried and punished at
any time without limitation.” We note that desertion is an aggravated AWOL as the
first two elements of the charged crime of desertion are an “absence” and “without
authority.” See UCMJ art. 85; see also United States v. Powell, 38 M.J. 153
(C.M.A. 1993) (labeling a period for which desertion was charged as a “period of
unauthorized absence”); United States v. Pou, 43 M.J. 778, 780 (A.F. Ct. Crim. App.
1995) (ruling that a period of desertion qualifies as a period “in which the accused is
absent without authority” for purposes of Article 43(c), UCMJ).




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RIVASCHIVAS — ARMY 20140471

       What constitutes a “time of war” for purposes of the statute of limitations as
outlined in Article 43, UCMJ, is not a novel question. Our superior court, in a case
involving a soldier who went AWOL within the continental United States at the end
of 1950, explained that the analysis of “time of war” for purposes of the statute of
limitations required an approach of “practicality, of broad realism, as distinguished
from narrow legalism” and concluded that the hostilities in Korea at that time
constituted a time of war and consequently “no limitation applie[d] to unauthorized
absences.” United States v. Ayers, 4 U.S.C.M.A. 220, 222, 227, 15 C.M.R. 220, 222,
227 (1954). Similarly, the same court, in a case of a soldier who deserted his unit at
Fort Polk in 1964, concluded that “[t]he current military involvement of the United
States in Vietnam undoubtedly constitutes a ‘time of war’ in that area, within the
meaning of Article 43’s suspension of the running of the statute of limitations.”
United States v. Anderson, 17 U.S.C.M.A. 588, 589, 38 C.M.R. 386, 387 (1968). 3

       When determining whether the country is engaged in a de facto war, as
opposed to a formally declared or de jure war, appellate courts have looked to
factors such as:

             [1] the nature of the conflict; [2] the manner in which it is
             carried on; [3] the movement to and presence of large
             numbers of personnel on the battlefield; [4] the casualties
             involved; [5] the sacrifices required; [6] the drafting of
             recruits to maintain a large number of personnel in the
             military service; [7] national emergency legislation
             enacted and being enacted; [8] executive orders
             promulgated; and [9] the expenditure of large sums to
             maintain armed forces in the theater of operations.

United States v. Castillo, 34 M.J. 1160, 1162-64 (N.M.C.M.R. 1992) (citing United
States v. Bancroft, 3 U.S.C.M.A. 3, 5, 11 C.M.R. 3, 5 (1953)).

       Like the Court of Military Appeals in 1953, we rely on “[a] reading of the
daily newspaper accounts of the conflict in [Iraq and Afghanistan]; an appreciation
of the size of the forces involved; a recognition of the efforts, both military and
civilian, being expended to maintain the military operations in that area; and
knowledge of other well-publicized wartime activities” to convince us “beyond any
reasonable doubt that we [were] in a highly developed state of war” in 2007.

3
  The Court of Military Appeals held in United States v. Averette, 19 U.S.C.M.A.
363, 41 C.M.R. 363 (C.M.A. 1970), that the phrase “in time of war” for
jurisdictional purposes under Article 2, UCMJ, applied only to a war declared by
Congress and that the phrase therefore did not cover the conflict in Vietnam. But,
the court in Averette did not overrule Anderson. Instead, the court distinguished
Anderson based on differences between Article 43 and Article 2. Id. at 365, 41
C.M.R. at 365. Therefore, the analysis in Anderson continues to apply.

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RIVASCHIVAS — ARMY 20140471

Bancroft, 3 U.S.C.M.A at 5-6, 11 C.M.R. at 5-6. Furthermore, we note historical
facts such as the Iraq War troop surge of 2007, the continuous and multiple large-
scale deployments to both Iraq and Afghanistan of combat units going back to 2003,
the well-documented number of combat fatalities and injuries in that theater of
operations during those campaigns, the tremendous financial cost of our ongoing
military conflicts in the Middle East, the various legislative enactments and
executive orders detailing our wartime footing in Iraq and Afghanistan, the creation
of military commissions with the purpose of prosecuting violations of the law of
war, and judicial decisions such as Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The
above is a non-exhaustive list which compels us to hold that appellant deserted the
U.S. Army in a time of war for purposes of the statute of limitations under Article
43, UCMJ. 4

       Because no time limitation applied to appellant’s war-time desertion, there
was no bar to trial to waive, and consequently no inquiry regarding the statute of
limitations was necessary. Although we need not decide here if appellant’s pleading
by exception and substitution to a much shorter period of unauthorized absence
would have successfully implicated a bar to trial if the peace-time limitation had
been applicable, we remind military judges and practitioners alike to remain
cognizant of Article 43, UCMJ, along with its attendant exceptions, extensions,
suspensions, and tolling provisions. See R.C.M. 920(e)(2) (Instructions on findings
shall include “[a] description of the elements of each lesser included offense in issue
unless trial of a lesser included offense is barred by the statute of limitations
(Article 43, UCMJ) and the accused refuses to waive the bar.”); United States v.
Wiedemann, 16 U.S.C.M.A. 365, 370, 36 C.M.R 521, 526 (1966) (“[I]f the accused
pleads guilty to a lesser included offense against which the statute has apparently
run, the law officer will advise him of his right to interpose the statute in bar of trial
and punishment as to that offense.”); Tunnell, 23 M.J. 110; see also United States v.
Thompson, 59 M.J. 432, 439 (C.A.A.F. 2004) (“When the evidence reasonably raises
issues concerning a lesser-included offense or the statute of limitations, the military
judge is charged with specific affirmative responsibilities.”).

                                    CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.


4
  We acknowledge that several federal courts have concluded that the hostilities in
Iraq and Afghanistan, during the relevant time period, constituted a time of war for
purposes of the wartime suspension of limitations codified at 18 U.S.C. § 3287. See,
e.g., United States v. Frediani, 2015 U.S. App. LEXIS 10449 (11th Cir. 2015);
United States ex rel. Carter v. Halliburton Co., 710 F.3d 171 (4th Cir. 2013), aff.d
in part, rev’d in part sub nom. Kellogg Brown & Root Servs. v. United States ex rel.
Carter, 2015 U.S. LEXIS 3407, 135 S.Ct. 1970 (2015); United States v. Pfluger, 685
F.3d 481 (5th Cir. 2012).

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RIVASCHIVAS — ARMY 20140471

    Senior Judge COOK and Judge MAGGS concur.


                                FORTHE
                               FOR  THECOURT:
                                        COURT:




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




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