                        UNITED STATES, Appellee

                                    v.

                    Jeremy M. PHILLIPPE, Private
                        U.S. Army, Appellant

                              No. 05-0674

                       Crim. App. No. 20040616

       United States Court of Appeals for the Armed Forces

                        Argued March 21, 2006

                        Decided July 18, 2006

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.



                                 Counsel

For Appellant: Captain Stephen P. Watkins (argued); Colonel
John T. Phelps II, Lieutenant Colonel Kirsten V. C. Brunson, and
Captain Billy B. Ruhling II (on brief).

For Appellee: Captain Flor M. Suarez (argued); Lieutenant
Colonel Theresa A. Gallagher and Major William J. Nelson (on
brief).


Military   Judge:   Gregory A. Gross



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v Phillippe, No. 05-0674/AR


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by special court-martial before a

military judge alone.   In accordance with his pleas, he was

convicted of one specification of unauthorized absence in

violation of Article 86, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 886 (2000).   The adjudged and approved

sentence included a bad-conduct discharge, confinement for

ninety days, forfeitures of $795.00 pay per month for three

months, and reduction to grade E-1.   The United States Army

Court of Criminal Appeals found no error and affirmed.    United

States v. Phillippe, No. ARMY 20040616, slip op. at 4 (A. Ct.

Crim. App. July 26, 2005).   We granted review of the following

issue:

     WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING THE
     APPELLANT’S PLEA OF GUILTY TO A PERIOD OF UNAUTHORIZED
     ABSENCE FROM 24 JULY 2001 TO 31 MARCH 2004 WHEN, IN
     SENTENCING, APPELLANT INDICATED THAT HE RETURNED OR
     ATTEMPTED TO RETURN TO MILITARY CONTROL ON THREE SEPARATE
     OCCASIONS DURING THE CHARGED PERIOD OF UNAUTHORIZED
     ABSENCE.

     We hold that the military judge erred in accepting

Appellant’s guilty plea with respect to the termination date.

However, we affirm guilt to a shorter period of unauthorized

absence, and we remand to the United States Army Court of

Criminal Appeals for reassessment under United States v. Sales,

22 M.J. 305, 307-08 (C.M.A. 1986).




                              2
United States v Phillippe, No. 05-0674/AR


                              BACKGROUND

     Appellant pled guilty to an unauthorized absence from July

24, 2001 to March 31, 2004.    During the plea inquiry, Appellant

stated to the military judge that, after he requested and was

denied leave, he left without authority to pursue his fiancée.1

The military judge accepted Appellant’s guilty plea and found

him guilty by exceptions and substitutions with regard to the

termination date.2   During sentencing, Appellant opted to make an

unsworn statement in which he said:

     I also tried to turn myself in while I was up there
     [in Montana] at an Air Force Base, after the 9/11
     bombing, but they just told me there was nothing they
     could do for me because there was no warrant out for
     my arrest and I did not have my military ID card on
     me. That they -- there was nothing to do, I would
     just have to wait until something happened. And then,
     I finally made -- got the means to get back to
     Illinois around June or July of 2002, sir. And I went
     back to Illinois and tried to meet up with the
     hometown recruiter who recruited me into the military.
     He ended up telling me I was to sign papers and he was
     supposedly faxing them down to here trying to help me
     take care of my situation, which nothing ever got done

1
  In his unsworn statement, Appellant provided additional detail
on this point:

     My reasoning for leaving was [my] fiancée at the time
     had taken all my belongings from back home and took
     off and moved to Montana without notifying me or
     anything. And I felt that it was in my best means to
     go and retrieve all of my belongings and to try and
     secure them back at my home of record.
2
  During the plea inquiry, the military judge established through
Appellant that, although Appellant did not arrive back at Fort
Polk until April 6, 2004, he turned himself in to civilian
authorities on March 31, 2004.


                                3
United States v Phillippe, No. 05-0674/AR


     on that. I finally just decided to take the means in
     my own hands and call up to Fort McCoy and see what I
     needed to do about turning myself in and how my
     situation was.

The military judge did not reopen the plea inquiry to question

Appellant about any prior attempts to return to military control

and the court-martial continued to adjournment.

     On review, the lower court rejected Appellant’s argument

that his absence terminated when he presented himself to Air

Force authorities in Montana.       Phillippe, No. ARMY 20040616,

slip op. at 4.   The lower court found that the military judge

should have explained the law of voluntary termination to

Appellant and obtained admissions of fact from him to

“unambiguously negate” the applicability of the defense but that

the failure to do so did not create a substantial basis in law

and fact to reject Appellant’s plea.      Id. at 3-4.   The lower

court characterized the facts in the following fashion:

     In connection with appellant’s actions in Montana, we
     note that appellant did not assert that he personally
     presented himself to a military authority with power
     to apprehend him, as required by our precedent in
     Rogers and Coglin. We also note that appellant did
     not assert that he personally presented himself to his
     “hometown recruiter,” but only that he “tried to meet
     up” with him. In neither circumstance did appellant
     ever submit to actual or constructive military
     control. As such, appellant’s assertions evince
     nothing “more than an inchoate desire to return at an
     earlier date.” United States v. Acemoglu, 21
     U.S.C.M.A. 561, 563, 45 C.M.R. 335, 337 (1972). . . .
     [W]e conclude that appellant’s unsworn statement
     raises no more than the “mere possibility” that he



                                4
United States v Phillippe, No. 05-0674/AR


     terminated his unauthorized absence on one or more
     occasions. Faircloth, 45 M.J. at 174.

Id. at 4.

     On appeal to this Court, Appellant argues that his unsworn

statement raised matter inconsistent with his plea.   According

to Appellant, the inconsistency was a defense to the extended

period of unauthorized absence, and he analogizes the facts of

his case to those of United States v. Reeder, 22 C.M.A. 11, 46

C.M.R. 11 (C.M.A. 1972).

     In response, the Government agrees with Appellant that the

military judge erred by failing to resolve the apparent

inconsistencies between Appellant’s plea and his unsworn

statement.   However, the Government’s position is that the error

was harmless because any inconsistencies do not create a

“substantial basis in law or fact” to question the sufficiency

of Appellant’s plea.   Finally, the Government argues that, even

if this Court were to disagree, we should amend the findings of

guilt to reflect multiple unauthorized absences, rather than

just one, with no effect on the maximum authorized punishment or

the sentence.

                            DISCUSSION

     “A military judge’s decision to accept a guilty plea is

reviewed for an abuse of discretion.”    United States v. Eberle,

44 M.J. 374, 375 (C.A.A.F. 1996) (citing United States v.



                              5
United States v Phillippe, No. 05-0674/AR


Gallegos, 41 M.J. 446 (C.A.A.F. 1995)).   “Pleas of guilty should

not be set aside on appeal unless there is ‘a substantial basis

in law and fact for questioning the guilty plea.’”   Id.

(quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.

1991)).

     “If an accused ‘sets up matter inconsistent with the plea’

at any time during the proceeding, the military judge must

either resolve the apparent inconsistency or reject the plea.”

United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)

(quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000)); see

Rule for Courts-Martial (R.C.M.) 910(h)(2).   Once a military

judge has accepted a plea as provident and has entered findings

based on it, this Court will not reverse that finding and reject

the plea unless it finds a substantial conflict between the plea

and the accused’s statements or other evidence on the record.

Garcia, 44 M.J. at 498.   “A ‘mere possibility’ of such a

conflict is not a sufficient basis to overturn the trial

results.”    Id. (quoting Prater, 32 M.J. at 436).

     The elements of unauthorized absence under Article 86,

UCMJ, are:

     (a) That the accused absented himself or herself from
     his or her unit, organization, or place of duty at
     which he or she was required to be;

     (b) That the absence was without authority from anyone
     competent to give him or her leave; and



                               6
United States v Phillippe, No. 05-0674/AR


     (c) That the absence was for a certain period of time.


Manual for Courts-Martial, United States pt. IV, para. 10.b.(3)

(2005 ed.) (MCM).    Unauthorized absence can be terminated in

five ways, including surrender to military authority.   MCM pt.

IV, para. 10.c.(10).   According to the MCM, “surrender occurs

when a person presents himself or herself to any military

authority, whether or not a member of the same armed force,

notifies that authority of his or her unauthorized absence

status, and submits or demonstrates a willingness to submit to

military control.”   MCM pt. IV, para. 10.c.(10)(a).

     The issue in this case is whether the military judge should

have inquired further into the providence of Appellant’s plea,

in light of his unsworn statement.   Even if an accused does not

volunteer all the facts necessary to establish a defense, if he

sets up matter raising a possible defense, then the military

judge is obligated to make further inquiry to resolve any

apparent ambiguity or inconsistency.   See Prater, 32 M.J. 436.

Only after the military judge has made this inquiry can he then

determine whether the apparent inconsistency or ambiguity has

been resolved.3   However, to answer this question, there must be


3
 The Government, relying on the lower court’s treatment of the
case, argued that Appellant’s unsworn statement did not state
the necessary facts to find surrender by voluntary termination.
However, before this determination can be made as to such a
defense, there must be adequate facts on the record. See


                               7
United States v Phillippe, No. 05-0674/AR


sufficient information on the record from which to arrive at

this conclusion.   Several cases decided by this Court illustrate

these points.

     In Reeder,4 this Court invalidated a guilty plea to

unauthorized absence for a period of over two years where

the lower court found that the accused had surrendered

himself to military control six days after initially

absenting himself.   22 C.M.A. at 12-13, 46 C.M.R. at 12-13.

While agreeing with the lower court that there was

sufficient information on the record to find that the

accused submitted himself to military control after six

days, this Court stated that, at the very least, the

accused’s statements during the plea inquiry “obligated the

military judge to make further inquiry to determine the

full extent of the inconsistency, and, absent the accused’s

withdrawal of his avowals, to reject the plea.”   Id. at 13,

46 C.M.R. at 13.

     In United States v. Pinero, we reversed where an


Prater, 32 M.J. at 436. Here, there were not because the
military judge failed to make further inquiry of Appellant to
resolve the apparent inconsistencies created by his unsworn
statement.
4
  The rationale in Reeder pertaining to a separate issue of
finding multiple shorter periods of unauthorized absences within
the longer one alleged was abrogated in United States v.
Francis, 15 M.J. 424, 429 (C.M.A. 1983). The additional



                              8
United States v Phillippe, No. 05-0674/AR


appellant’s statements during the providence inquiry established

that he in fact returned to military control for five hours amid

an otherwise continuous period of unauthorized absence.      60 M.J.

31, 34 (C.A.A.F. 2004).   “Termination was not merely a

‘possible’ defense here -- the judge secured a factual basis

establishing that Appellant was, for a five-hour period, not

guilty of unauthorized absence.”      Id.   Therefore, in Pinero, the

problem was not that the military judge did not inquire further,

but rather that he reached the wrong conclusion.

     We long ago recognized the congressional rationale

buttressing Article 45, UCMJ.       “The statute ‘manifest[s] a

congressional intent that guilt be acknowledged consistently

from the pleas through the sentence.’”      Reeder, 22 C.M.A. at 13,

46 C.M.R. at 13 (citing United States v. Thompson, 21 C.M.A.

526, 528, 45 C.M.R. 300, 302 (1972)).       As we stated in Pinero,

Article 45, UCMJ, like United States v. Care, 18 C.M.A. 535,

539, 40 C.M.R. 247, 251 (1969), is addressed to the military

context:

     The military justice system takes particular care to
     test the validity of guilty pleas because the facts
     and the law are not tested in the crucible of the
     adversarial process. Further, there may be subtle
     pressures inherent to the military environment that
     may influence the manner in which servicemembers
     exercise (and waive) their rights. The providence
     inquiry and a judge’s explanation of possible defenses


rationale in Reeder pertinent to the issue in this case,
however, retains its vitality.


                                9
United States v Phillippe, No. 05-0674/AR


     are established procedures to ensure servicemembers
     knowingly and voluntarily admit to all elements of a
     formal charge.

60 M.J. at 33.    As a result, when, either during the plea

inquiry or thereafter, and in the absence of prior disavowals,

see, e.g., Garcia, 44 M.J. at 499, circumstances raise a

possible defense, a military judge has a duty to inquire further

to resolve the apparent inconsistency.

     Turning to the case at hand, Appellant’s statement raised

the possibility that either he surrendered to military

authorities and returned to military control, as in Pinero, or

that he tried to, as in Reeder.     This would have ended

Appellant’s initial period of unauthorized absence on or about

September 11, 2001, rather than two-and-a-half years later on

March 31, 2004.   For sure, as the Government argues, the facts

are not sufficiently developed in the record to determine

whether such a defense was available.    Upon further inquiry, the

military judge may have found that Appellant did not voluntarily

terminate his unauthorized absence at the Air Force base.5    But

Appellant’s statement lays out the elements of a possible

defense to a multi-year unauthorized absence.    Surrender occurs


5
 Because Appellant’s statements about his interaction with Air
Force personnel in Montana are sufficient to raise a substantial
question in law and fact as to the sufficiency of the plea, we
do not reach the issue of what effect Appellant’s statements
about his interactions with the hometown recruiter in Illinois
might have had on the sufficiency of the plea.


                               10
United States v Phillippe, No. 05-0674/AR


when a person presents himself to any military authority

(whether or not a member of the same service), notifies that

authority of his unauthorized absence, and demonstrates a

willingness to submit to military control.     MCM pt. IV, para.

10.c.(10)(a).   Here, Appellant stated that he tried to turn

himself in at an Air Force base, “but they just told me there

was nothing they could do for me because there was no warrant

out for my arrest.”   This language suggests that:    (1) Appellant

was physically present at the military installation; (2)

Appellant advised someone he deemed authoritative that he was

absent without leave (“they” checked for a warrant); and (3)

Appellant expressed a willingness to return to military control.

In such circumstances, and in the absence of further inquiry by

the military judge, we cannot be confident that Appellant did

not terminate his unauthorized absence prior to March 31, 2004.

As a result, there remains a substantial basis in law and fact

to question Appellant’s plea to an unauthorized absence

terminating on March 31, 2004.

                       The Termination Date

     Unauthorized absence under Article 86, UCMJ, is not a

continuing offense.   Francis, 15 M.J. at 427.    “[T]he length of

an unauthorized absence is the essential element in determining

the legal punishment for the offense.”   Id.     “[T]he [MCM]

authorizes increased punishments based upon, among other things,


                              11
United States v Phillippe, No. 05-0674/AR


the duration of the absence.”    United States v. Hardeman, 59

M.J. 389, 391-92 (C.A.A.F. 2004); see MCM pt. IV, para. 10.e.

     “A military judge may find multiple absences within a

single charged period so long as the maximum authorized

punishment does not exceed that for the longer period.”   Pinero,

60 M.J. at 34 (citing Francis, 15 M.J. at 429); see MCM pt. IV,

para. 10.c.(11) (“Findings of more than one absence under one

specification.   An accused may properly be found guilty of two

or more separate unauthorized absences under one specification,

provided that each absence is included within the period alleged

in the specification and provided that the accused was not

misled.”).   However, the ability to do so is premised on the

ability of this Court to determine from the record an inception

date for each separate period of unauthorized absence.    An

inception date is necessary to establish the offense.    See

Hardeman, 59 M.J. at 391 (citing United States v. Harris, 21

C.M.A. 590, 593, 45 C.M.R. 364, 367 (1972)).   Here, while there

are sufficient facts to determine that Appellant was absent from

July 24, 2001, until at least September 11, 2001,6 there are


6
  By his own admission, Appellant was absent without
authorization from July 24, 2001, to at least September 11,
2001. During the plea inquiry, the military judge and Appellant
had the following exchange:

     MJ: Okay, now when was that that [sic] you left your
     unit?



                                12
United States v Phillippe, No. 05-0674/AR


insufficient facts to determine when Appellant initiated a

subsequent period of unauthorized absence.   Therefore, we affirm

only one period of unauthorized absence, from July 24, 2001,

until on or about September 11, 2001.

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed only as to a finding of guilt to an

unauthorized absence ending on or about September 11, 2001.    The

decision is set aside with respect to the sentence.   The record

of trial is returned to the Judge Advocate General of the Army

for remand to the United States Army Court of Criminal Appeals




     ACC: Around the 24th of July, I am not sure of the
     date, sir, exactly.

     MJ: But it was on or about the 24th of July of 2001,
     though?

     ACC: Yes, sir.

     . . . .

     MJ: Okay. At any time between the 24th of July of
     2001 and the 31st of March of 2004 did you have
     authority to be absent from your unit?

     ACC: No, I did not, sir.

     MJ:   Did you think that you had authority to be gone?

     ACC: No, I did not, sir.

As noted, during his unsworn statement, Appellant indicated that
he tried to turn himself in to military authorities on or about
September 11, 2001, at an Air Force base in Montana.


                                13
United States v Phillippe, No. 05-0674/AR


for reassessment under Sales, 22 M.J. at 307-08, or a rehearing

may be ordered if appropriate.




                             14
