United States v. Specialist KENNETH A. COPELAND ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist KENNETH A. COPELAND
United States Army, Appellant
ARMY 20120168
Headquarters, United States Army Cadet Command and Fort Knox
Timothy Grammel, Military Judge
Colonel Robert J. Cotell, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Colonel Edye U. Moran, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain
James S. Trieschmann, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varely, JA;
Major Elisabeth A. Claus, JA; Major Alison L. Gregoire, JA (on brief).
31 October 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of five specifications of absence without leave (AWOL) and
one specification of willful disobedience of a noncommissioned officer, in violation
of Articles 86 and 91, Uniform Code of Military Justice. 10 U.S.C. §§ 886, 891
(2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for seven months, forfeiture of all pay and allowances, and
reduction to E-1. The convening authority deferred automatic and adjudged
forfeitures until action and waived automatic forfeitures for a period of six months,
disapproved the adjudged forfeitures, and otherw ise approved the adjudged
sentence. 1
1
Appellant was credited with 105 days of confinement credit against the sentence to
confinement.
COPELAND — ARMY 20120168
This case is before this court for review pursuant to Article 66, UCMJ.
Appellant asks this court to set aside and dismiss his conviction for willfully
disobeying a noncommissioned officer based upon the “ultimate of fense” doctrine. 2
We disagree.
Appellant stipulated to the facts establishing his willful disobedience. In
particular, appellant first went AWOL for 90 days while on mid-tour leave from his
deployment to Afghanistan. Within a month after returning to his rear detachment,
he did not go to a 0630 formation. The next day, appellant became upset when an
Army Emergency Relief loan was not approved and stated that he was taking his
children and leaving for another state. As appellant drove off-post, he was followed
by a fellow soldier, Specialist (SPC) Krebs, who was telephonically relaying what
was happening to both the platoon sergeant and acting First Sergeant. When
appellant stopped his car, got out, and confronted SPC Krebs, SPC Kr ebs conveyed
to appellant a specific order from appellant’s acting First Sergeant to return to Fort
Knox and remain there until his financial situation was resolved. SPC Krebs handed
appellant a phone with the platoon sergeant on the line. Understanding that his First
Sergeant had ordered him back to Fort Knox immediately, appellant yelled, “F ---
you” into the phone, threw the phone at SPC Krebs, and went AWOL for 35 days.
Our superior court’s reasoning in United States v. Pettersen, 17 M.J. 69, 72
(C.M.A. 1983) succinctly shows why the ultimate offense doctrine does not compel
dismissal of the disobedience charge.
While we must insure that the use of orders is not improperly designed
to increase punishment in a given instance, we also must not erode the
command structure upon which the military organization is based. The
accused’s direct defiance of the orders and refusal to return to his unit
strikes at the very essence of military order and discipline and cannot
be condoned. Such defiance, under the facts of this case, constitutes
“the ultimate offense committed” and, as such, is separably chargeable
and separably punishable from the absence without leave which had not
then been terminated.
(footnote omitted). Applying the above logic, we note that although this is clearly a
case where appellant’s willful disobedience and AWOL did overlap, they were
distinct offenses, separately chargeable and punishable.
2
The matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982) do not merit discussion or relief.
2
COPELAND — ARMY 20120168
CONCLUSION
Upon consideration of the entire record, including consideration of the issues
personally specified by the appellant, the findings of guilty and the sentence are
AFFIRMED.
FOR THE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
3