UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           BURTON, HAGLER, and FLEMING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Private (E1) OLUSEGUN GADE
                          United States Army, Appellant

                                  ARMY 20170506

                 Headquarters, 1st Infantry Division and Fort Riley
           Ryan W. Rosauer and Charles L. Pritchard, Jr., Military Judges
            Lieutenant Colonel Joseph B. Mackey, Staff Judge Advocate


For Appellant: Major Julie L. Borchers, JA; Captain Zachary A. Szilagyi, JA.

For Appellee: Lieutenant Colonel Eric K. Stafford, JA.


                                 27 September 2018

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

      A military judge sitting as a special court-martial found appellant guilty,
contrary to his plea, of desertion terminated by apprehension in violation of Article
85, Uniform Code of Military Justice, 10 U.S.C. § 885 (2006 & Supp. V 2012)
[UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
discharge. We review this case under Article 66, UCMJ.

      Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant
challenges the sufficiency of his conviction, specifically claiming his absence was
excused by duress, that he voluntarily terminated his absence, and that the
government offered no evidence of his intent to remain away permanently. We
disagree.

       Appellant came from Nigeria to the United States when he was 23 years old
and became a U.S. citizen in 2012. He enlisted in the Army at age 40, and was a
42-year-old private (E-1) when he left his unit at Fort Riley, Kansas, his second duty
station following his basic and advanced individual training. Appellant left Fort
Riley in August 2012 and returned to Nigeria. He remained absent until February
2017, when he was detained by customs officials at John F. Kennedy International
Airport (JFK) in New York, pursuant to a deserter warrant.
GADE – ARMY 20170506

       At trial, appellant admitted he left his unit without authority but asserted he
did so under duress: he thought he would die because his military doctors were
unable to diagnose and treat his abdominal pain. Appellant claimed he intended to
return to his unit after receiving treatment from spiritual practitioners in Nigeria.
He also testified he identified himself as a member of the U.S. Army to a customs
agent at JFK, thus terminating his absence voluntarily.

       On the question of intent, appellant argues he had no intent to remain away
permanently, and the government produced no contradictory evidence. However, the
record contains ample circumstantial evidence of his intent: appellant returned to his
native country, where he had lived for the first twenty-three years of life, and he
ultimately remained away from his unit for four and a half years. Such evidence
leaves no reasonable doubt in our mind that appellant intended to remain away
permanently, at some point during his lengthy absence, despite his testimony to the
contrary.

       Likewise, we find this same evidence negates the defense of duress.
Appellant reasserts his claim at trial that he feared imminent death or serious bodily
injury when he left and this fear continued throughout his absence. In other words,
he would immediately die or suffer serious bodily injury if he returned to his unit.
For the defense of duress to apply, appellant’s apprehension must have been
reasonable and it must have reasonably continued for the duration of his absence.
Rule for Courts-Martial 916(h). On the facts of this case, we find such an
apprehension – even if appellant actually held it – to be unreasonable. Put another
way, we find no reasonable possibility that duress applied in this case.

      Finally, on the question of voluntary termination, we note the only evidence
of appellant’s surrender was his testimony that he told a customs agent he was in the
Army. Yet appellant did not testify he notified the agent of his status as an
unauthorized absentee. Overall, our review of the entire record, to include the
testimony of a JFK customs agent who handled appellant, convinces us that his
absence was terminated by apprehension, when he was detained after an initial
screening revealed a warrant for his arrest.

       On consideration of the entire record, including the issues personally
specified by appellant, we hold the finding of guilty and the sentence as approved by
the convening authority correct in law and fact. Accordingly, that finding and the
sentence are AFFIRMED.




                                           2
GADE – ARMY 20170506

                       FOR THE COURT:



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




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