UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          CAMPANELLA, FEBBO, and WOLFE
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                   Second Lieutenant LAWRENCE J. FRANKS
                         United States Army, Appellant

                                   ARMY 20140952

                            Headquarters, Fort Drum
                         S. Charles Neill, Military Judge
        Lieutenant Colonel Derek D. Brown, Staff Judge Advocate (pretrial)
          Colonel Steven C. Hendricks, Staff Judge Advocate (post-trial)

For Appellant: Jack B. Zimmermann, Esq. (argued); Captain Scott A. Martin, JA;
Terri R. Zimmermann, Esq.; Jack B. Zimmermann, Esq. (on brief and on reply brief).

For Appellee: Captain Linda Chavez, JA (argued); Colonel Mark H. Sydenham, JA;
Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain Linda
Chavez, JA (on brief).


                                    31 August 2017

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

FEBBO, Judge:

       In this case, we hold that appellant’s own fear of suicide does not support a
defense of duress under current precedent. We hold that the offense of desertion
with intent to shirk important service was factually and legally sufficient. We also
hold that the military judge properly instructed the panel on the mens rea required
for the offense of conduct unbecoming an officer.

       A panel sitting as a general court-martial convicted appellant, contrary to his
pleas, of desertion with intent to shirk important service and conduct unbecoming an
officer, in violation of Articles 85 and 133 of the Uniform Code of Military Justice,
10 U.S.C. §§ 885, 933 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dismissal and confinement for four years.
FRANKS—ARMY 20140952

      We review this case under Article 66, UCMJ. 1 Appellant assigns four errors. 2
We find three require discussion but no relief. We have considered the matters
personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find they lack merit.

                                    BACKGROUND

       In spring 2008, appellant graduated from the United States Military Academy
at West Point and commissioned as a medical service corps officer. In January
2009, appellant reported to 2nd Battalion, 22nd Infantry Regiment (commonly
referred to as the “Triple Deuce”), 1st Brigade Combat Team (1BCT), 10th Mountain
Division (Light Infantry) at Fort Drum. His duties included tracking and reporting
on the medical readiness of the soldiers in the unit. His unit was on the “Patch-
Chart” 3 to deploy to Iraq in September 2009 as part of the “Surge.” The unit had
completed reset from a redeployment, had started a new training cycle, and was
preparing for another deployment, but had not yet received deployment orders.

       Appellant asserts he grew disillusioned with his assignment, became
depressed, and developed suicidal ideations. He stated he wanted direct contact with
patients and did not enjoy a “desk job.” According to appellant, he had unreported
and undiagnosed depression and suicidal ideations during high school and while
attending West Point, but avoided his suicidal ideations through physical and



1
    The court heard oral argument in this case on 22 February 2017.
2
  In the one assignment of error we do not directly address, appellant asserts the
military judge erred by excluding the testimony of a retired U.S. Army Brigadier
General (BG) and a French Army BG on the merits. As we find that the military
judge did not abuse his discretion or commit error in concluding that the defense of
duress did not apply in appellant’s case, we likewise conclude it was not error to
exclude testimony on the defense of duress. Similarly, the military judge ruled
character evidence from the French Army BG about appellant’s foreign-service was
not admissible on the merits. The military judge concluded the character trait of a
“good legionnaire” was not pertinent to the charge of voluntarily leaving his unit to
enlist and serve in a foreign military service. See Military Rule of Evidence
[hereinafter Mil. R. Evid.] 404(a)(2)(A). The military judge did allow appellant to
present other testimony and documentary evidence concerning his service in the
Legion. We find no abuse of discretion by the military judge.
3
 The “Patch Chart” is a planning document projecting the timeline of deployments
for U.S. Army units. The units are identified on the timeline by their unit patch.


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athletic activities. He decided to join the French Foreign Legion (“the Legion”)
because he believed it would be more rigorous and challenging.

       On 30 March 2009, after purchasing a round trip ticket, appellant left his unit
and flew to France. Before he left, he paid his rent and left his military
identification card, military identification tag, West Point class ring, cell phone, and
keys to his office. Appellant left his military clothing and equipment (“OCIE”) and
asked his roommate to turn it in. He also wrote letters to his roommate and family
indicating his suicidal ideations.

       On 6 April 2009, appellant executed a five-year enlistment contract with the
Legion. 4 Appellant was provided a new identity by the Legion. During his
enlistment, appellant deployed to Mali, Central African Republic, and Djibouti. He
served as a team leader, as a medic, and on the security detail for a French Army
BG.

     Back in the United States, in January 2010, the Triple Deuce deployed to
Afghanistan.

       On 6 April 2014, appellant completed his five-year enlistment contract and
was discharged from the Legion. The next day, appellant traveled to Wiesbaden,
Germany and voluntarily surrendered to the U.S. Army. The government charged
appellant with two specifications of desertion and one specification of conduct
unbecoming an officer. A “sanity board” ordered pursuant to Rule for Court-Martial
[hereinafter R.C.M.] 706 found that when appellant left his unit, he had a severe
mental disease or defect—major depressive disorder—as well as recurrent, severe
and active suicidal ideations and an alcohol use disorder. However, the sanity board
found he understood the wrongfulness of his actions and could participate in his
defense.

       At trial, appellant admitted it was wrong to leave the Army for five years. He
claimed, however, his “tunnel vision” and thoughts of suicide left him with two
choices: commit suicide or join the Legion. Appellant reasoned that since France is
an ally of the U.S. and the Legion was engaged in fighting terrorism, joining the
Legion was not conduct unbecoming an officer. Appellant asserts at trial and on
appeal he should be commended for his decisions.

      After a trial consisting of fifteen government and defense witnesses, dozens of
exhibits consisting of hundreds of pages of documents, and a record of trial


4
 As part of the French enlistment process, a certificate was provided by a French
Deputy Chief Physician that appellant had “no disability.”

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consisting of 1,196 pages, the panel found appellant not guilty of desertion with
intent to remain permanently away, but guilty of desertion with intent to shirk his
unit’s deployment, as well as conduct unbecoming an officer.

                              LAW AND DISCUSSION

                 A. Desertion with Intent to Shirk Important Service

       Appellant’s duress defense claim on appeal can be summarized as follows:
appellant asserts that if one will kill himself if he does not commit a crime then he is
under duress and cannot be criminally liable for committing the crime. While we
reject appellant’s argument, our conclusion should not be misinterpreted as a lack of
understanding of the seriousness and gravity of the mental health issues of service
members. Rather, our analysis focuses on whether appellant attempted to pursue a
defense that was not available to him under current precedent.

             1. Does Fear of One’s Own Suicide Support a Defense of Duress

       A military judge has an affirmative duty to instruct on special defenses
reasonably raised by the evidence. R.C.M. 920(e)(3). An instruction on a defense is
not required if no reasonable panel member could find the defense applicable.
United States v. Schumacher, 70 M.J. 387, 389-90 (C.A.A.F. 2011). The appellant’s
defense counsel specifically requested the military judge to instruct the panel on the
duress defense. Therefore, the instructional issue for the duress defense is preserved
on appeal.

      The defense of duress applies when:

             the accused’s participation in the offense was caused by a
             reasonable apprehension that the accused or another
             innocent person would be immediately killed or would
             immediately suffer serious bodily injury if the accused did
             not commit the act. The apprehension must reasonably
             continue throughout the commission of the act. If the
             accused had any reasonable opportunity to avoid
             committing the act without subjecting the accused or
             another innocent person to the harm threatened, this
             defense shall not apply.

R.C.M. 916(h).

       Appellant argues the military judge erred by ruling that appellant’s own
suicidal ideations could not support a defense of duress. Appellant asserts that
having only two choices, kill himself or join the Legion, he intentionally left his unit
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to avoid an overwhelming desire to kill himself. Appellant thought the “rigorous
and regimented lifestyle would cause his suicidal ideations to diminish.”

       There are several problems with appellant’s argument, and we hold the
military judge did not err by denying appellant’s request to instruct the panel on the
duress defense. Under appellant’s theory, appellant is threatening himself. The
defense of duress does not exist if the accused can avoid the threatened harm. If one
is threatening oneself, then one can remove the threat. As the accused can remove
the “threat” by no longer threatening himself, the accused can avoid the harm if he
possesses the ability to exercise that choice. If appellant could not understand this
dilemma because he suffered from a severe mental disease or defect, the appropriate
defense would be lack of mental responsibility. 5 This is not to say that everyone
contemplating suicide is suffering from a severe mental disease or defect, but for a
lack of mental responsibility defense to exist, this would need to be the case.

       Appellant argues his case is similar to United States v. Hayes, where the
accused claimed if he did not steal and send funds to his mother, his mother would
commit suicide. 70 M.J. 454 (C.A.A.F. 2012). There, the Court of Appeals for the
Armed Forces (CAAF) did not rule out the possibility that a threat of suicide arising
from another person could provide a basis for the defense of duress. Id. at 461-62;
See also, United States v. Toney, 27 F.3d 1245, 1248 (7th Cir. 1994) (noting a threat
of suicide may be a sufficient basis for coercion if the defendant took reasonable
alternative steps to avoid the suicide); but see United States v. Stevison, 471 F.2d
143, 147 (7th Cir. 1972) (affirming the denial of a defendant’s proposed coercion
instruction where the defendant had not alleged that she had no opportunity, other
than embezzling funds, to avoid her daughter’s threatened suicide). The Hayes
court, however, did not apply the defense of duress for one’s own suicidal ideations.




5
  R.C.M. 916(k) provides for an affirmative defense of a lack of mental
responsibility. If appellant, at the time of the commission of his offenses, was
unable, due to a severe mental disease or defect, to appreciate the nature or quality
or the wrongfulness of his acts, then he would be not guilty of the offenses.
However, both at trial and on appeal, appellant repeatedly disavowed this defense.
Appellant did not want to present evidence that would raise the issue of lack of
mental responsibility, did not want to instruct the panel on the defense, and did not
argue that he was not responsible for his conduct. Appellant has waived, not
forfeited, the defense of lack of mental responsibility. The record demonstrates the
waiver of this defense was made after consultation between appellant and counsel,
and was not patently unreasonable.


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FRANKS—ARMY 20140952

       Appellant argues the natural extension of Hayes would create a defense of
duress for an accused’s own suicidal ideations. Adopting this position could
arguably make an accused’s suicidal ideations a defense to any crime under the
UCMJ except a homicide. Appellant is unable to cite one reported case that has
adopted appellant’s theory. Our research indicates every federal, state, and military
court that has considered the issue has rejected the theory that a person’s own
compulsion or threat of suicide could raise a defense of duress. 6

       Furthermore, this court does not read Hayes as broadly as appellant. Hayes
involved a situation where an accused believed another person was going to commit
suicide. The Hayes court applied “the ‘possible defense’ standard that is intended to
serve as a lower threshold than a prima facie showing because it is intended as a
trigger to prompt further inquiry during a guilty plea inquiry pursuant to Article 45,
UCMJ, and United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969),
not to determine whether the defense is available or whether members in a contested
case should be given an instruction.” Hayes, 70 M.J. at 458.

       Accordingly, we hold, the defense of duress did not apply to appellant under
current precedent. Accordingly, the military judge did not err in failing to give an
instruction on the defense of duress. But, even if it did apply, the facts of
appellant’s suicidal ideations did not reasonably raise a defense of duress.

        Even assuming arguendo a person’s own suicidal ideations could create a
“reasonable apprehension that the accused . . . would be immediately killed or [the
accused] would immediately suffer serious bodily injury,” this only addresses the
first of the four elements required for the defense of duress. For the military judge


6
  United States v. Bowling, NAVY 20030001, 2003 CCA LEXIS 207, at *13
(N.M. Ct. Crim. App. 9 Aug. 2003) (a defendant’s own suicidal ideations raises
an issue of “mental competence vice the defense of duress” and is not a defense
to leaving a unit without authority); United States v. Sanchez, No. 201400053,
2014 CCA LEXIS 378, at *8-9 (N.M. Ct. Crim. App. 30 Jun. 2014) (use of drugs
to “ease pain” from withdrawal did not raise defense of duress); see also Love v.
State, 271 Ind. 473, 393 N.E.2d 178 (Ind. 1979) (robbery for money to buy
heroin to prevent drug withdrawal did not raise defense of duress); State v.
Gann, 244 N.W.2d 746 (N.D. 1976) (duress could not be asserted where the
defendant robbed to provide his family with food and shelter because the
compulsion did not come from an outside source and remove the free will of the
actor); Degler v. State, 741 P.2d 659 (Alaska Ct. App. 1987) (duress instruction
not given and evidence not allowed where reason for robbery was to secure
funds to attend a custody hearing, because defense of duress requires the use of
unlawful force).

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FRANKS—ARMY 20140952

to instruct on the special defense, there must be some evidence as to each separate
element of the defense. United States v. Davis, 75 M.J. 537, 541 (Army Ct. Crim.
App. 2015) aff’d, United States v. Davis, 76 M.J. 224 (C.A.A.F. 2017) (citing
Schumacher, 70 M.J. at 389-90) (“The military judge must answer the legal question
of whether there is some evidence upon which the members could reasonably rely to
find that each element of the defense has been established.”) However, three
essential elements of duress are plainly absent based on appellant’s own factual
recitation and testimony: the immediacy between appellant’s actions and the
perceived threat; the opportunity to avoid the harm threatened; and the continuation
of immediacy throughout the conduct in question. The defense of duress did not
apply to the facts in appellant’s case.

       First, the defense of duress requires the accused be under a threat of death or
serious bodily injury. The sheer length of time necessary to carry out appellant’s
plan shows the situation could not have had the requisite immediacy. Before leaving
his unit, appellant conducted research into various foreign military organizations, to
determine if they accepted U.S. citizens. Having determined his eligibility to enlist
in the Legion, appellant settled some of his personal affairs, washed and organized
his military property for turn-in, and purchased a plane ticket to France. Afterward,
he went to the airport and flew to France and, after a review process and executing a
contract, enlisted in the Legion.

       Additionally, for the defense of duress to apply, there must have been “no
other reasonable alternative” other than joining the Legion. The record reveals
appellant had other choices. He did not seek to resign his commission in the Army
or seek a branch transfer to what he would consider a more rigorous and demanding
combat arms branch or unit. Appellant could have sought mental health treatment,
sought the advice of a chaplain, or checked himself into the hospital. Appellant’s
testimony that he did not seek mental health treatment because he did not want to be
prescribed medication highlights this point. Appellant understood he could have
sought mental health treatment but was allegedly concerned about the stigma of
seeking treatment. However, he did not make any effort to seek assistance from
outside the Army or from other professionals. Even accepting appellant’s claims as
true, this meant appellant understood he had options. Appellant chose to join the
Legion because he preferred this course of action over seeking mental health
treatment.

       Lastly, the defense of duress requires the duress continue throughout the
commission of the crime. Here, the threat of suicide would have had to remain
throughout his entire five-year absence. Appellant himself specifically disavowed
this claim and testified that once in the Legion, he continued to serve not because of




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his fear that he would commit suicide, but because he had not finished his enlistment
contract with France. 7

       Appellant took many steps to plan his desertion, had many opportunities to
avoid or treat his suicidal ideations, and did not have suicidal ideations for the
entirety of his five-year desertion. As the military judge rejected the defense of
duress at trial, we likewise reject it here.

    2. Legal and Factual Sufficiency of Desertion by Shirking Important Service

       Appellant does not dispute his unauthorized five-year absence from his unit.
He does not challenge that his unit’s deployment was “important service.” However,
appellant states his motive 8 for leaving the unit and joining the Legion was not to
shirk the deployment but to avoid committing suicide. Appellant asserts he did not
know his unit was actually deploying and claims that to be guilty of the offense, the
unit’s deployment must be imminent.

      In March 2009, the 1BCT had not yet received deployment orders to Iraq.
The unit deployed to Afghanistan in January 2010.

        Article 85(a)(2), UCMJ, provides: “Any member of the armed forces who . . .
quits his unit, organization, or place of duty with intent to avoid hazardous duty or
to shirk important service . . . is guilty of desertion.” United States v. Gonzalez
states:



7
  Around November 2012, appellant called a civilian attorney in the United States to
get advice on being a deserter. The attorney informed appellant he would probably
spend several years in prison for deserting the U.S. Army in a time of war and not
fulfilling his eight-year service obligation for attending West Point and that serving
in a foreign military organization aggravated his situation. After speaking with the
civilian defense counsel, appellant wrote a letter to his command in the Legion
sharing his civilian defense counsel’s advice and declaring he was “absolutely not
going to” turn himself in before the end of his five-year contract because he wanted
to honor his contract and fulfill his duty to the Legion. Appellant stated he planned
to surrender to the Army after 6 April 2014. In the letter, appellant never mentioned
anything about suicidal ideations, depression, or any concern about not returning to
the Army to avoid suicide.
8
 Motive may supply the reason for crime and may be a matter in mitigation;
however, except in the limited instances where it constitutes a defense, motive does
not negate criminality. United States v. Huet-Vaughn, 43 M.J. 105, 113-14
(C.A.A.F. 1995).
                                          8
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             Desertion with the intent to avoid hazardous duty or to
             shirk important service is a serious offense under military
             law. What distinguishes it -- and aggravates it -- from
             simple unauthorized absence, and even from desertion
             with intent to abandon the unit at a time when the
             presence of all hands is most critically needed.

42 M.J. 469 (C.A.A.F. 1995) (citing United States v. Merrow, 14 C.M.A. 265, 34
C.M.R. 45 (1963)).

       The specific intent to shirk important service must be proven to exist in
appellant at the inception or sometime during his absence from his unit. Gonzalez,
42 M.J. at 472 (citing United States v. Vick, 3 U.S.C.M.A. 288, 12 C.M.R. 44
(1953); United States v. Shull, 1 U.S.C.M.A. 177, 2 C.M.R. 83 (1952)). “Whether
an intent to avoid some particular service existed in an accused is a subjective
question of fact depending on proof of his direct statements or circumstances
reflective of his state of mind.” Gonzalez, 42 M.J. at 472 (citing United States v.
Apple, 2 U.S.C.M.A. 592, 10 C.M.R. 90 (1953); United States v. Taylor, 2
U.S.C.M.A. 389, 392, 9 C.M.R. 19, 22 (1953)). “It is generally enough to prove the
intent element that the court determine on the basis of substantial evidence that,
when the unauthorized absence began, the duty or service was imminent and as a
consequence of his absence, the accused in fact avoided it or had reasonable cause to
know that he would do so.” Gonzalez, 42 M.J at 473, n.6 (citing Shull, 2 C.M.R. at
88-89).

       Appellant cites Shull for the proposition that in order to “shirk” important
service the duty must be imminent as a matter of law. We disagree. We do not read
Shull to require an imminent deployment as a precondition to shirking. As
summarized by our superior court in Shull, imminence of the deployment is just one
factor in determining a soldier’s intent or lack of intent to shirk a deployment:

             In our view the actual physical, temporal, or
             administrative proximity of the accused to the service in
             question is not important in this type of case in any
             ultimate sense -- that is as a matter of law. These
             elements only function as items of circumstantial evidence
             raising inferences of intent of varying degrees of
             compulsion. It is conceivable, at least, that an absence
             without leave from a port of embarkation might not have
             been effected with a subjective intent to avoid overseas
             duty. Likewise it is logically possible, we believe, for a
             military person to absent himself unauthorizedly [sic] with
             such an intent on the very first day of his training period -
             - far removed in time, space, and competent orders from
                                           9
FRANKS—ARMY 20140952

             any threat of movement to a combat theater. What we
             have involved in these cases is simply a matter of proof --
             and that is exactly what we are faced with in the present
             case.

      2 C.M.R. at 87.

       The accused in Shull went on pass to resolve some family problems,
overstayed his pass, and was gone for a total of twelve unauthorized days. Id. at 84-
85. Before going on leave, he had volunteered to deploy to Asia and was informed
that orders to the replacement company would “probably be issued” shortly. Id at
84, 88. He was never informed, however, that he had actually received orders to the
replacement company or that without these initial orders he would be precluded from
deploying. Id. at 88. The Shull court concluded there was no evidence presented
that the accused’s absence from his unit for twelve unauthorized days would cause
him to miss any of the additional steps for him to deploy to Asia. Id at 87-88. The
court determined the evidence was insufficient to support a twelve-day absence with
the intent to shirk when the accused was in a replacement process that involved a
“leisurely and perhaps pervious pipeline.” Id.

      As Shull recognized, to sustain a guilty finding the government must prove
appellant had a specific intent to shirk important service. In most specific intent
crimes, direct evidence of intent is often unavailable, as Dep’t of Army, Pam. 27-9,
Legal Services: Military Judges’ Benchbook [hereinafter Benchbook] (10 Sep.
2014) instructs panel members.

       It is a reasonable inference that if one absences himself from his unit
immediately before a deployment or other important service, there was an intent to
avoid important service. When the nexus between the absence and the important
service becomes attenuated, the reasonableness of the inference grows weaker and
weaker until it disappears all together.

       While leaving a unit right before an imminent deployment is one way to prove
intent to shirk, it is not the only way. Accordingly, we see our role on appeal as not
trying to determine whether appellant’s unit was about to deploy, but rather whether
there are sufficient facts in the record to support that appellant left his unit with the
intent to shirk, or, at some point during his five-year absence developed the intent to
shirk. Gonzalez, 42 M.J. at 472 (The intent to shirk important service can be formed
at inception or sometime during the absence from the unit).

        In 2009, the President ordered a surge of troops into Iraq while the Army was
still engaged in combat operations in Afghanistan. As a result, appellant’s unit at
Fort Drum appeared on the “patch chart” as part of the surge and was planning and
training for deployment. A deployment of his BCT to Iraq or Afghanistan was not
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just mere suspicion, conjecture, and speculation. In this case, when appellant left
his unit, he understood his unit would deploy. As we discuss below, appellant
admitted this through both pretrial statements and through his testimony. Shull
recognized that, depending on the circumstantial evidence presented, a panel could
determine that appellant formed the intent to shirk important service during training
and “removed in time, space, and competent orders from any threat of movement to a
combat theater.” Shull, 2 C.M.R. at 87. Here, the evidence was factually and
legally sufficient to support the panel’s finding that appellant left his unit with the
intent to shirk his unit’s deployment.

       Appellant’s intent to shirk is illustrated in several ways. Appellant was a
staff officer in his unit and was responsible for medical readiness. Appellant
attended his unit’s weekly command and staff and training meetings. As a member
of the staff, he understood his unit was deploying. Appellant testified about the
Triple Deuce’s upcoming deployment:

             We just started a new training cycle. We had finished the
             reset, we had finished all the medical and administrative
             redeployment, all those orders now we starting—Triple
             Deuce was beginning to prepare for the upcoming
             deployment. (Emphasis added).

       Appellant also discussed his unit’s upcoming deployment with his roommate.
In a letter to his roommate, 2LT Carney, appellant admitted that he was “running
away from the U.S. Government” and did not expect 2LT Carney to visit him in jail.
Appellant stated he was not afraid to deploy, but did not feel capable to lead an
Army platoon during deployment. Appellant stated he was going overseas, indicated
he was not coming back, and said goodbye to his parents.

       In another letter to his parents, appellant discussed his “undisclosed
depression” and suicidal ideations. He stated he made a mistake accepting his
commission and “dooming” himself to personnel management and operational
planning. Appellant informed his parents of the steps he took—such as fixing his
car and leaving behind his personal property—to help them settle his affairs as a
“deserter” from the Army. While appellant would later testify that he did not
understand what “deserter” meant, his explanation is unconvincing. In fact,
appellant testified before leaving, he specifically purchased a round trip plane ticket
for less than thirty days from his departure day so he would not get dropped from the
rolls of the Army. Appellant wanted to preserve his option to return within thirty
days without entering deserter status. He testified he knew he was wrong when
brought the plane ticket, left the unit, and flew to France and adopted a new identity.

       Appellant argues since the Triple Deuce actually deployed to Afghanistan
instead of Iraq, this undercuts both his knowledge of the deployment or that a
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FRANKS—ARMY 20140952

deployment was imminent. However, the subsequent change in deployment location
does not negate appellant’s intent to shirk the deployment. Gonzalez, 42 M.J. at 471
(“proof of the actual occurrence of important service by an accused’s unit during his
absence is not necessary for conviction” of desertion with intent to shirk important
service) (citing United States v. Squirrel, 2 U.S.C.M.A. 146, 151, 7 C.M.R. 22, 27
(1953)); see Apple, 2 U.S.C.M.A. at 593, 10 C.M.R. at 91. As compared to the
twelve-day unauthorized absence in Shull, appellant deserted his unit knowing he
was going to enlist in a foreign military for five years. By agreeing to a five-year
contract with a foreign military unit, appellant intended not only to avoid the one
deployment he knew was coming, but all deployments with his U.S. Army unit over
the next five years.

       The panel concluded appellant deserted his unit and intended to shirk the
unit’s deployment. The panel did not have to conclude his primary motive must
have been to avoid his unit’s deployment. We find the evidence was factually and
legally sufficient to support appellant’s conviction for desertion with intent to shirk
his unit’s deployment.

                          B. Conduct Unbecoming an Officer

       Appellant asserts the military judge’s instructions on the elements for conduct
unbecoming an officer are insufficient after Elonis v. United States, 135 S. Ct. 2001
(2015) 9; see United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016) (general order
violation requires recklessness), and United States v. Haverty, 76 M.J. 199
(C.A.A.F. 2017) (mens rea required for violation of Article 92, UCMJ). Appellant
argues that the military judge’s instruction failed to specify a mens rea for the
material element that his conduct was unbecoming or appellant intended to behave in
a manner to dishonor or disgrace himself, or seriously compromise his standing as
an officer. Appellant asserts he never intended for his conduct to be unbecoming an
officer. Therefore, appellant argues that the military judge’s instruction were
insufficient to establish that appellant’s conduct was unlawful.

                                      1. Forfeiture

      At an Article 39(a), UCMJ, session, the parties discussed the elements of
conduct unbecoming an officer. Appellant’s defense counsel objected to every
element of the government’s proposed instruction, stating the government’s
proposed instructions had no mens rea required for a conviction. Appellant’s
counsel asserted there should be another element in the instructions that appellant
“intended to engage in conduct unbecoming an officer in order to be found guilty of


9
    Appellant’s trial concluded before the Supreme Court decided Elonis.

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FRANKS—ARMY 20140952

the offense.” The military judge stated he would take appellant’s concerns under
advisement.

       Later in the court-martial, the military judge informed the parties he was
going to give an adapted version of the Benchbook instruction para. 3-59-1. The
military judge’s instruction added that the panel had to find appellant “wrongfully”
enlisted and served in the Legion. Appellant’s counsel did not object to the judge’s
instruction to the panel.

       In general, whether a panel was properly instructed is a question of law
reviewed de novo. United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017).
R.C.M. 920(f) states “[f]ailure to object to an instruction . . . before the members
close to deliberate constitutes waiver of the objection in the absence of plain error.”
Failure to object forfeits the issue absent plain error. United States v. Ahern, 76
M.J. 194 (C.A.A.F. 2017). When an “accused fails to preserve the instructional
error by an adequate objection or request, we test for plain error.” United States v.
Davis 76 M.J. 224,229 (C.A.A.F. 2017) (citing United States v. Girouard, 70 M.J. 5,
11 (C.A.A.F. 2011)); see also United States v. Paige, 67 M.J. 442, 449 (C.A.A.F.
2009).

      By not objecting to the judge’s modified instructions, appellant did not
preserve the issue on appeal and we review for plain error.

                           2. Military Judge’s Instructions

       Article 133, UCMJ has only two elements: 1) that the accused did or omitted
to do certain acts; and 2) that, under the circumstances, these acts or omissions
constituted conduct unbecoming an officer and gentleman. Manual for Courts-
Martial, United States pt. IV, para. 59.b(2) (2012 ed.) [hereinafter MCM]. The
focus of Article 133, UCMJ, is the effect of the accused’s conduct on his status as an
officer. United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F. 2009). The test for a
violation of Article 133, UCMJ, is “‘whether the conduct has fallen below the
standards established for officers.’” Id. (quoting United States v. Taylor, 23 M.J.
314, 318 (C.M.A. 1987)). A determination if the conduct charged is unbecoming of
an officer includes “taking all the circumstances into consideration.” MCM pt. IV,
para. 59.c(2). “Such circumstances incorporate the concept of honor.” Id.
“[E]vidence of honorable motive may inform a factfinder’s judgment as to whether
conduct is unbecoming an officer.” Id. The subjective motivation of an accused is
relevant to a charge under Article 133, UCMJ. United States v. Diaz, 69 M.J. 127
(C.A.A.F. 2010).

       The military judge’s instruction was tailored from para. 3-59-1(d) of the
Benchbook and the statutory language of Article 133. At trial, the military judge did
not preclude evidence from the appellant explaining his motive for leaving his unit
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was to avoid suicide and diminish his suicidal ideations. Appellant also testified
that he did not think joining the Legion was conduct unbecoming an officer. Indeed,
appellant thought service in the Legion was honorable. The military judge properly
instructed the panel to consider “all the facts and circumstances” of appellant’s
motive for leaving his unit and joining a foreign military service, before finding him
guilty of the offense.

       Furthermore, any alleged prejudice to the appellant with respect to Article
133, UCMJ not including a mens rea element was cured by the military judge’s
specific instructions to the panel. Although not required by the standard instruction,
the military judge also instructed the panel that appellant’s conduct had to be
“wrongful.” In considering the appellant’s motives for leaving the Army and joining
the Legion, the panel determined appellant’s conduct was both “wrongful” and
unbecoming an officer. Our superior court in United States v. Rapert, considered
the effect of including “wrongful” as an element in an offense under Elonis. 75 M.J.
164 (C.A.A.F. 2016). The CAAF held the inclusion of “wrongful” as a mens rea
“prevents the criminalization of otherwise ‘innocent conduct,’ and thus requires the
government to prove the accused’s mens rea rather than base a conviction on mere
negligence.” Id. at 169.

      Based on a review of the record of trial and the arguments and briefs of
counsel, the court finds the military judge did not error in giving instructions for
conduct unbecoming an officer.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

Senior Judge CAMPANELLA, concurring.

       While I agree with the majority that the defense of duress did not apply under
the facts of this case, I do not rule out the possibility that an accused’s suicidal
compulsion could be the basis of the defense of duress. Hayes, 70 M.J. at 461-63.
While the majority points to lack of mental responsibility as the “appropriate
defense,” a soldier with suicidal ideations would need to suffer from a severe mental
disease or defect and be unable to appreciate the nature or quality or the
wrongfulness of his acts for the defense of lack of mental responsibility to apply.
Not all who contemplate suicide are suffering from mental illness or do not
understand the nature of their actions. This is precisely why lack of mental
responsibility should not be the sole defense available in the unique military
environment and context in which this issue could arise. The defense of duress
allows an individual to avoid liability “because coercive conditions or necessity
negates a conclusion of guilt even though the necessary mens rea was present.”
Dixon v. United States, 548 U.S. 1 (2006) (internal citations and quotations omitted).
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Accordingly, like our superior court, I “do not foreclose the possibility of a duress
defense in the context of a suicide threat as a matter of law.” Hayes, 70 M.J. at 463.

Judge WOLFE concurring.

       Article 85(a)(1)-(3), UCMJ, lists three types of desertion. The first paragraph
sanctions those who leave their unit with the intent to remain away permanently.
The second paragraph prohibits quitting one’s unit with the intent to avoid
hazardous duty or to shirk important service. Appellant was charged with both of
these offenses and convicted of the latter.

       The third paragraph of Article 85(a), UCMJ, states “any member of the armed
forces who . . . enters any foreign armed service except when authorized by the
United States [] is guilty of desertion.”

       As appellant left his unit without authority and enlisted in a foreign army, the
third paragraph of Article 85(a) appears to be tailor made for appellant’s conduct.
However, in 1954, the Court of Military Appeals held that when passing Article
85(a)(3), UCMJ, “Congress did not intend to create a new and separate offense, but
merely sought to perpetrate a rule of evidence. . . .” United States v. Johnson, 5
U.S.C.M.A. 297, 301, 17 C.M.R. 297, 301 (1954).

       The reasoning in Johnson—which focused on the absence of legislative
history indicating an intent to amend Article 85, UCMJ—is inconsistent with the
CAAF’s current cannons of statutory interpretation. In United States v. Sager, 76
M.J. 158, 161 (C.A.A.F. 2017) the CAAF reiterated:

             The Supreme Court has stated time and again that courts
             presume that a legislature says in a statute what it means
             and means in a statute what it says there. When the words
             of a statute are unambiguous, then, this first cannon [of
             statutory interpretation] is also the last: judicial inquiry is
             complete.

       While I note this issue, I leave it to my superior court to determine whether
the holding in Johnson should be revisited. Accordingly, I understand that under
Johnson, Article 85(a)(3), UCMJ, is a codified rule of evidence that allows the




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factfinder to infer a criminal mens rea to prove an Article 85(a)(1) or (2) offense
from an accused’s enlistment in a foreign army. 10

       Applied to this case, I accept the inference that appellant, knowing his unit
would deploy in the meantime, intended to shirk important service when he enlisted
in a foreign army for five years. Recognizing that the trial court saw and heard the
evidence, I therefore find the evidence factually sufficient and concur with this
court’s decision in this case.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




10
  Johnson specifically addressed only Article 85(a)(1) offenses that involve an
intent to remain away permanently. However, the reasoning of the case would apply
to an intent to shirk important service, although perhaps with less force.
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