AIRCRAFT III. OPERATION AND USE: AIR NAVIGATION § 33.1. Generally. § 33. Pilots and Crews The Light Air Section of a certain command has assigned to it several enlisted men who are not in flying status. Training problems frequently require that pilots of aircraft have assistants on training flights for mock bombing runs and other duties in connection with infantry and artillery basic training. The frequency of these duties and the number of enlisted personnel assigned to the Light Air Section indicate that if such duties were rotated, each enlisted man assigned to the section would be required to make a training flight approximately once a week. An opinion was requested as to whether these enlisted men not on flying status could legally be ordered to participate in training flights. Held: Paragraph 3, Army Regulations 95-15, 31 May 1950, precludes such orders. JAGA 1953/9568. 16 December 1953. Police officials of occupied country as having no authority to apprehend military personnel, see CM 369603, Ramos, ASSAULT § 49.11. § 15. Escape from Custody § 19. Evidence, Generally § 19.5. Weight, effect, sufficiency. The accused was charged with escape from custody at an airport. The evidence indicates that the accused was put under restraint for "safekeeping prior to departure" of a plane to return him to his post of duty from which he was absent on authorized leave. The petty officer, whose custody he was alleged to have been placed under, testified that the accused had been placed in his safekeeping due to the fact the accused's mother was very apprehensive about his returning to his post of duty on time. There was no suggestion that the accused was put under restraint because anyone thought he was drunk or because anyone thought he was out of uniform, or because of any offense which it was thought the accused had committed. Held: The evidence was insufficient to establish that the accused had been placed under "lawful custody." Possibly, there were reasonable grounds for belief that an offense might be committed (that is, if permitted to remain at large the accused would be absent over leave), but that is not enough for lawful apprehension under the Manual. There must be reasonable belief that an offense has been committed. It may be that custody officially imposed is presumed to be legal (MCM, 1951, par 174c), but here the record rebuts such presumption. CGCMS 19866, Delgado (1953) 12 CMR 651. The accused was convicted of escape from custody. The evidence showed that he and another prisoner were being transported in a shore patrol vehicle when the accused left the vehicle and started away from it. The other prisoner advised the patrolman that the accused was departing and the patrolman set out in pursuit and after a chase regained custody of the accused. Held: The accused did not effect an escape from custody, but rather attempted such escape since it does not appear that at any time the accused became a free agent and that the patrolman ceased to be in "hot pursuit". (Citing MCM, 1951, pars 174 and 159). Held also: Since the punishment for an attempt is the same as for a completed offense the sentence need not be changed. (Citing MCM, 1951, fn 3, p 219.) NCM 264, Vichos (1953) 13 CMR 562. § 25.1. Generally. § 25. Arrest and Confinement The accused was charged with breach of arrest. It was shown that on 10 December 1951, the accused was placed under arrest to await execution of a bad conduct discharge, and went absent without leave on 20 December 1951. Held that: -the commanding officer had "probable cause" to believe the restraint imposed on the accused was necessary, hence the arrest imposed was legal. Since notification of the action of the board of review on the bad conduct discharge was not forwarded to the commanding officer until 23 January 1952, he had to take some action to assure accused's presence when time for execution, if such was necessary, was at hand. That there was "probable cause" to believe that some form of restraint was justified is shown by the accused's action in breaking the restraint imposed upon him. Article 10 of the Code, by its own terminology, is limited to those cases where the person sought to be restrained is charged, or will be charged, with an offense. the term "probable cause" is not limited by UCMJ, Art 10, to such restraint as is necessary to insure presence of a person in order to be tried for whatever charges may be pending against him, but must be construed in the light of other provisions of the Code and Manual. - the provision of UCMJ, Art 13, that no person, while being held for trial or "the results of trial," shall be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, does not restrict authority to restrain persons to the time sentence is imposed and, thereafter, only as to such restraint as would be found in the sentence. Par 21d, p 26, MCM, 1951, which is supplemental and not contradictory to the provisions of the Code-hence should be given the force and effect of law-authorizes the "imposition of any necessary restraint pending final action on the case." United States v. Teague (No. 1719), 3 USCMA 317, 12 CMR 73. § 29. Breach of Arrest § 29.5. Termination of arrest status. The evidence on a trial for breaking arrest showed that the accused was placed in an arrest status and while in such status was issued orders to depart from station and proceed to another duty station. He failed to report to the duty station as he was ordered to do. The order placing the accused in arrest provided limits while he was enroute to his duty station and further provided that the arrest status was to remain in effect until he reported to his duty station. Held: To place one in an arrest status and then order him to perform travel under orders in his own custody is requiring one to perform a duty entirely inconsistent with an arrest status. Consequently when the accused proceeded in compliance with his transfer orders his arrest was terminated. (Citing MCM, 1951, par 20a.) NCM 247, Vetter (1953) 13 CMR 517. The evidence established that on 10 December 1951 the accused was placed under arrest to await execution of a bad conduct discharge, and that on 20 December 1951, he absented himself without leave until his return on 9 January 1952. On the day of return, he was again placed under arrest in a prisoner-at-large status for the purpose of having him available when notification of action of higher authority was received. On 17 January he again absented himself without leave. Held that: - the evidence was sufficient to establish that the accused was in a status of arrest on the dates he left on his unauthorized absences, in view of the presumption that a condition shown to have existed at one time may be presumed to have continued (par 138a, p 240, MCM, 1951), especially in view of the short period of time involved. It is reasonable to presume in the instant case that the accused's arrests would continue for such time as the reason for imposition remained unchanged. written orders of arrest, acknowledged and signed by the accused, constitute proof of his arrest status, since they constitute an agreement by the accused to accept and abide by the regulations governing him while he remained under arrest. a service record entry, dated 7 January 1952, and stating that the accused, "having been duly placed in a PAL status, did, at 2200, 20 December 51 absent himself without proper authority," is sufficient to establish the arrest status of the accused at the time of his alleged absence. The entry shows the imposition of the restraint prior to the absence and its continuation up until the time the accused departed from the restricted area. an order placing the accused under arrest stated that the arrest was for the purpose of awaiting action on a previously adjudged bad conduct discharge. The discharge could not be executed until it had been subjected to appellate review (UCMJ, Art 71 (c)). Other evidence of the record showed that the results of the appellate review were not forwarded to the place of arrest until long after the accused had broken his arrest. It is unlikely that the accused's arrest, which was shown to have been imposed to await appellate action on his punitive discharge, would be terminated prior to the time action was taken. Accordingly, the above evidence supports the findings of a continuation of the arrest status until the accused's alleged breach thereof. the second arrest was imposed in order to hold the accused for appropriate action by higher authority. Due to his absence, charges were not preferred until 21 April 1952 and it was not until 3 June 1952 that the charges were referred for trial. The purposes for which arrest was imposed were not fulfilled until a date subsequent to the alleged breach of arrest. The reasonable conclusion is that a person would not be released from restraint imposed to secure his presence for trial and disposition before the papers were processed by the convening authority either ordering him to trial or making other disposition. accordingly, the above evidence supports the findings of continuation of the arrest status. United States v. Teague (No. 1719), 3 USCMA 317, 12 CMR 73. The accused was found guilty of breaking arrest. The prosecution based its case upon a service record entry which in part read as follows: "[name of accused] was placed in a prisoner-at-large status and restricted to the limits of the U. S. Naval Station [name of station]. Made a prisoner-at-large at 1530 hours, 13 May 1952 awaiting confirmation of status and subsequent transfer. At or about 2130 hours, 13 May 1952 failed to muster with the station O.O.D. and absented himself from this command without proper authority, while in the status of P.A.L. and is on unauthorized absence from about 2130 hours this date." Held: This entry does not establish that the accused was ever placed in "arrest," but, to the contrary, indicates a possible status of "restriction." A status of "prisoner-at-large" may reflect either one, and in the absence of any affirmative showing that the accused was in the status of "arrest," or that he was not performing military duties, the accused should not stand convicted of breaking arrest but of the lesser included offense of breaking restriction (BuPers Circ Ltr 148–51; NDB 31 August 1951 p 28). NCM 201, Hicks (1953) 9 CMR 603. The accused was convicted of breach of arrest. Extracts from the service record of the accused were admitted in evidence purporting to show that he was made a prisoner-at-large on a specified date and that he broke arrest while in a prisoner-at-large status on a subsequent specified date. A letter from the commanding officer to the accused was admitted in evidence. This letter notified the accused that he was placed in a prisoner-at-large status and confined to the limits prescribed in a specified station order and the reasons for his being placed in a prisoner-at-large status. The station order referred to in the commanding officer's letter was not introduced in evidence, but it was clear from the record that the accused had been made a prisoner-at-large awaiting verification of his unauthorized absence status from another station. Nowhere in the notification to the accused or in the related service record entry was there the word "arrest" or "limits of arrest." Held: There is no convincing evidence of record that the accused was expressly notified that he was "in arrest." The descriptive language applied to the term "prisoner-at-large" could with equal or more logic have applied to the status of restriction in lieu of arrest. Therefore the |