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 

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

3 

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

4 

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

5 

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

6 

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

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

8 

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

9 

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

10 

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

11 

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

12 

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

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

14 

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

may be ordered if appropriate.