UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700175

_________________________

UNITED STATES OF AMERICA

Appellee

v.

JASON R. HUTFLESS

Private First Class (E-2), U.S. Marine Corps

Appellant

_________________________

Military Judge: Major M.D. Sameit, USMC.

Convening Authority: Commanding Officer, Headquarters and 

Support Battalion, Marine Corps Installations West-Marine Corps 

Base, Camp Pendleton, CA.

For Appellant: Commander Suzanne M. Lachelier, JAGC, USN; 

Lieutenant Commander Derek C. Hampton, JAGC, USN.

For Appellee: Lieutenant George R. Lewis, JAGC, USN; Captain 

Sean M. Monks, USMC

_________________________

Decided 12 July 2018

_________________________

Before WOODARD, MARKS, and JONES, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

_________________________

WOODARD, Chief Judge:

A military judge sitting as a special court-martial convicted the appellant, 

contrary to his pleas, of one specification of unauthorized absence (UA) and 

one specification of missing movement through design, in violation of Articles 

86 and 87, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886 and

887. The military judge sentenced the appellant to 11 months’ confinement 

and a bad-conduct discharge. The convening authority approved the adjudged 

sentence and, except for the bad-conduct discharge, ordered it executed.
United States v. Hutfless, No. 201700175

2

Although not raised by the parties, we find that the military judge erred 

when he terminated the appellant’s UA on 10 June 2008. For this error, we 

grant relief and reassess the sentence. In his sole assignment of error, the 

appellant alleges that his convictions are barred by the statute of limitations. 

We disagree. 

I. BACKGROUND

A. 18 May 2004 to 31 January 2017

1. Appellant’s unauthorized absence and missing movement 

The appellant reported to 1st Battalion, 7th Marine Regiment, 1st Marine 

Division, Twentynine Palms, California, on 8 April 2004. On 17 May 2004, he 

was not present for his post-liberty muster. Sometime during the previous 

weekend, the appellant left Twentynine Palms and went home to Nebraska. 

On 18 May 2004, the appellant’s command placed him in a UA status. A 

month later, his command submitted a Deserter/Absentee DD Form 553, the 

report of a Deserter/Absentee Wanted by the Armed Forces.

1 On 25 August 

2004, the appellant missed his unit’s movement to Iraq.

2. The “H-U-F-T-L-E-S-S” administrative error

During the initial recording and reporting of the appellant’s UA status, 

his unit administrative officer misspelled the appellant’s name on the unit’s 

legal report, transposing the “T” and “F” in the appellant’s last name.2 The 

same spelling error was made on the DD Form 553.3 The form was forwarded 

to the Marine Corps Absentee Collection Unit who entered the appellant’s 

misspelled name into the National Crime Information Center (NCIC) 

database. No one, including the appellant, knew of the error and, as a result, 

the appellant’s misspelled name remained in the database for almost 13 

years.

3. The appellant’s speeding tickets and arrests in 2004, 2005, 2006, and 

2008

In 2004, within a few months of entering into a UA status, the Sarpy 

County, Nebraska civilian authorities stopped the appellant for speeding. 

Fearful that he would be arrested, he did not disclose his UA status to the 

 

1 A DD Form 553 is the mechanism used by the military to notify local, state, 

and federal law enforcement of the military member’s unauthorized absentee status 

and its formal request to civilian law enforcement that the absentee be apprehended 

on behalf of the military.

2 Prosecution Exhibit (PE) 7 at 1; Record at 33.

3 PE 4 at 1.
United States v. Hutfless, No. 201700175

3

citing officer. The following year, he was stopped for speeding again, this time

in Omaha, Nebraska. When the officer ran the appellant’s correctly spelled 

name through multiple state and federal databases, including the NCIC, an 

outstanding arrest warrant for failing to pay the fine for his 2004 speeding 

ticket appeared. The appellant was turned over to Sarpy County authorities

who again ran the appellant’s correctly spelled name through NCIC. The only

outstanding arrest warrant was for the unpaid speeding fines. Thinking he 

“was already good”4 since he had not been arrested for UA when previously 

stopped for speeding in 2004, the appellant did not disclose his UA status to 

the authorities. The appellant was also arrested in either 20065 or 20076for 

matters not discussed on the record. Again, a records check using his 

correctly spelled name returned no active warrants for his arrest or 

apprehension. 

Two years later, the appellant was again arrested in Omaha, this time for 

driving under the influence (DUI). He spent seven days in the county jail

following this arrest. At some point during his confinement, the appellant 

asked a guard “to check–see if [he] was still [UA]” because the appellant

wanted to “make sure that [he] was good.”

7 The guard told the appellant that 

there was no warrant for his arrest for being UA8 and that the Marine Corps 

“must have discharged [him].”9 Other than the database check, the record is 

silent on whether there was any further action by the civilian authorities 

based upon the appellant’s inquiry. It does not reflect whether the civilian 

authorities contacted the Marine Corps to verify the appellant’s absentee 

status nor does it reflect whether the Marine Corps was notified that the 

appellant was available for return to military control. Apparently, after

completing his civilian confinement, he was released without restrictions and 

allowed to resumed his normal activities.

4. Discovery of the spelling error and the appellant’s arrest for UA

On 12 January 2017, almost 13 years after the appellant left his unit, a 

Marine Corps representative contacted the Douglas County Sheriff’s 

Department and requested assistance in locating and apprehending the 

 

4 Record at 96. 

5 Id. at 102.

6 Id. at 95.

7 Id. at 97. 

8 Id. at 98.

9 Id. at 105.
United States v. Hutfless, No. 201700175

4

appellant.10 A department official searched NCIC and the local and state 

databases for the appellant’s name, using the correct spelling of H-U-T-F-LE-S-S. Although, the appellant’s name was in both NCIC and several of the 

local and state databases as a result of his multiple previous civilian offenses, 

there were no outstanding warrants for his apprehension—including for UA.

However, the official conducting the database queries did find an NCIC entry 

for an active UA apprehension warrant with a similarly spelled name—H-UF-T-L-E-S-S. After comparing the dates of birth and social security numbers 

on the two similarly spelled NCIC entries, the authorities determined the 

misspelled entry was for the appellant. Having discovered that the 

appellant’s name was misspelled in the NCIC entry linked to his UA status, 

the UA entry in NCIC was corrected on 30 January 2017. The following day, 

the Douglas County Sherriff’s Department, acting on behalf of the military 

authorities, located and apprehended the appellant. On 3 February 2017, the 

appellant was taken into military custody when cross-country chasers picked 

him up from the Douglas County law enforcement officials.

B. The appellant’s special court-martial

As discussed supra, the appellant was charged with one specification each

of violating Articles 86 and 87, UCMJ. He entered pleas of not guilty to the 

charged offenses and elected to be tried by the military judge. The appellant 

focused his defense on duress, claiming that he left his unit because he was 

being hazed and mistreated by members of his command. 

During his deliberations on the findings, the military judge requested 

clarification as to the date of the appellant’s 2008 DUI arrest. The parties 

stipulated that it occurred on 10 June 2008. Without further comment, the 

military judge announced his findings, finding the appellant guilty of 

violating Article 86, UCMJ, by exceptions and substitutions. In announcing 

his findings, the military judge excepted the words “he was apprehended on 

or about 31 January 2017” and substituted therefor the words “on or about 

[10 June 2008].”11 The military judge also found the appellant guilty of the 

Article 87, UCMJ, offense as charged.

 

10 The appellant’s home of record listed in the DD Form 553 was Omaha, 

Nebraska, which is located in Douglas County.

11 Record at 126. The specification alleged: “[i]n that Private First Class Jason R. 

Hutfless, U.S. Marine Corps, on active duty, did, on or about 18 May 2004, without 

authority, absent himself from his unit, to wit: 1st Battalion, 7th Marine Regiment, 

1st Marine Division[,] located at or near Marine Corps Air Ground Combat Center, 

Twentynine Palms, California[,] and did so remain absent until he was apprehended 

on or about 31 January 2017.” Charge Sheet at 1.
United States v. Hutfless, No. 201700175

5

II. DISCUSSION

A. Legal and factual correctness of the UA termination date

Although not raised by the parties, we question whether we can approve 

the termination date of the appellant’s period of UA as legally and factually 

correct. We can only approve the military judge’s findings regarding the date 

of termination and sentence if we are convinced, on the basis of the record, 

that they are correct in law and fact. Art. 66(c), UCMJ. Based upon the 

record before us, we conclude that the military judge’s determination that the 

appellant’s period of UA terminated by surrender on 10 June 2008 is not 

correct in law or fact.

The offense of UA is an instantaneous offense and is complete as soon as 

the accused absents himself without proper authority and the duration of his 

absence is a matter in aggravation for the purpose of increasing the 

maximum punishment authorized for the offense. United States v. Lovell, 22 

C.M.R. 235, 237 (C.M.A. 1956); see also MANUAL FOR COURTS-MARTIAL,

UNITED STATES (2002 ed.) (MCM), Part IV, ¶ 10.c.(8). Once a period of UA 

begins, it continues until terminated by the exercise of military control over 

the absentee. United States v. Ringer, 14 M.J. 979, 981-82 (N.M.C.M.R. 

1982). The return to military control can be either actual or constructive. 

United States v. Pettis, 12 M.J. 616, 618 (N.M.C.M.R. 1981). As the appellant 

did not return to actual military control until 3 February 2017—when he was 

delivered into the custody of the military cross-country chasers by the 

Douglas County law enforcement officials—we will only address constructive 

control.

An absentee may be constructively returned to military control by several 

different methods. He is constructively returned to military control “when 

[the] absentee presents himself to military authorities with full intention of 

returning to duty, even when no control is exercised by military authorities.”

Id. (citation and internal quotation marks omitted). Additionally, an absentee 

may be constructively returned to military control when he is taken into 

custody by civilian authorities at the request of the military, or, when taken 

into custody by civilian authorities on civilian offenses, discloses his absentee 

status to civilian authorities and the civilian authorities notify the military of 

his immediate availability to be taken into their custody. United States v. 

Lanphear, 49 C.M.R. 742, 744 (C.M.A. 1975). Inherent in all manner of 

constructive control is that the military has been informed of its opportunity 

to exercise control over the absentee. If, after having been properly informed 

of its opportunity to exercise control over the absentee, the military fails or 

refuses to exercise control, constructive control will be deemed to have 

occurred and the UA terminated. Id. 
United States v. Hutfless, No. 201700175

6

The record establishes that the appellant’s period of UA initiated and was 

completed on 18 May 2004, when he left his unit without proper authority.

12

In performing our Article 66(c), UCMJ, responsibility to determine the legal 

and factual correctness of the military judge’s findings regarding the 

termination of the appellant’s period of UA, the question then becomes, when 

and how did his UA terminate?

The military judge found that the appellant’s period of UA terminated by 

surrender on 10 June 2008. Counsel did not request, and the military judge 

did not make special findings, concerning how the he arrived at the 

termination date for the appellant’s UA. Our review of the record suggests 

that the military judge’s findings were greatly influenced by the testimonial 

evidence presented by the appellant and the argument presented by trial 

defense counsel that the appellant developed an honest and reasonable, 

although mistaken, belief that he had somehow been discharged from the 

Marine Corps after initially absenting himself from his unit on 18 May 

2004.

13 The date of 10 June 2008 may have been significant to the military 

judge as it was the date the appellant was arrested for DUI. It was also the 

first time, as the appellant testified, that he had notified civilian law 

enforcement of his “possible” UA status.

14 The extent of the appellant’s 

notification to civilian law enforcement officials that he may be in a UA 

status was his asking the civilian guard “to check [to] see if [he] was still 

[UA].”15

1. Termination of UA in accordance with Article 86(c)(10), UCMJ

Article 86(c)(10), UCMJ, provides the five methods by which an absentee’s 

UA can be terminated: (1) the absentee surrenders to military authority by 

presenting themselves to any military authority, notifies that authority of 

their UA status, and submits or demonstrates a willingness to submit to 

military control; (2) the absentee is apprehended by military authorities; (3) 

the absentee is delivered by anyone to military authorities; (4) the absentee is 

apprehended by civilian authorities at the request of military authorities; or 

(5) if the absentee is in the hands of civilian authorities for reasons other 

than a prior military request, the civilian authorities make the absentee 

 

12 In response to questioning by the court, the appellant indicated that he had no 

reason to doubt that he left his unit on 18 May 2004. Record at 113.

13 See id. at 87-88, 96-99, 104-08, 118-19, and 122.

14 Id. at 96.

15 Id. at 97.
United States v. Hutfless, No. 201700175

7

available for return to military control, and the military authorities are 

informed of the absentee’s availability for return to their control. 

The record is devoid of evidence of any action by the appellant, the 

military, or the Douglas County authorities on 10 June 2008 that would 

permit us to affirm a finding that the appellant’s UA was terminated by one 

of the five means articulated in Article 86(c)(10), UCMJ. There is no evidence 

in the record that the appellant’s UA terminated by surrender. He did not 

submit to, or demonstrate a willingness to submit to, military control. There 

is no evidence in the record that the appellant was delivered to military 

control by anyone. Furthermore, although the appellant was in the hands of 

the Douglas County civilian authorities for other reasons (his DUI arrest), 

there is no evidence in the record that the Douglas County authorities were 

aware that the military had requested the appellant’s apprehension, that 

they made the appellant available for return to military control, that they 

contacted the military to inform them of the appellant’s availability for 

return to their control, or that the military was ever presented an 

opportunity to exercise control over the appellant.

The record fails to establish the facts necessary to find that on 10 June 

2008, the appellant returned to military control—actually or constructively—

and, therefore, his UA was not terminated by surrender, or by any other 

means of termination listed in Article 86(c)(10), UCMJ. The record does, 

however, establish that, after being released by the Douglas County 

authorities, the appellant apparently faded back into the civilian population 

and had no interaction with military, or civilian authorities on behalf of the 

military, until 31 January 2017—when he was arrested by the Douglas 

County authorities acting on behalf of the military based upon the corrected 

DD Form 553.

2. Mistake of fact

Having concluded that the appellant’s UA did not terminate by any of the 

five means listed in Article 86(c)(10), UCMJ, we now turn to whether the 

appellant’s UA could have terminated on 10 June 2008 under the theory of 

mistake of fact. We conclude that it did not.

UA is a general intent crime. United States v. Holder, 22 C.M.R. 3, 6 

(C.M.A. 1956). It is an affirmative defense to the offense if the appellant had

an honest and reasonable belief that he was not required to be at his unit at 

the time of his absence. Id. at 7. The evidence triggering the mistake of fact 

defense must show the accused’s mistake was both honest and reasonable. 

United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). Furthermore, to be

reasonable, the mistake cannot be based on a negligent failure to discover the 
United States v. Hutfless, No. 201700175

8

true facts. “Negligence is the absence of due care. Due care is what a 

reasonable person would do under the same or similar circumstances.”

16

After leaving his unit on 18 May 2004, the appellant “never once sought 

to ascertain, from anyone likely to know, whether or not he had been 

discharged from [the Marine Corps].” Holder, 22 C.M.R. at 12 (emphasis 

added). An inquiry by any mode of communication to his unit, or a visit to

any one of the three Marine Corps recruiting stations in Omaha, Nebraska,17

would have likely provided him with the necessary information concerning 

his absentee status. Any belief the appellant may have had that his UA was 

terminated because he had somehow been discharged by the Marine Corps 

after leaving his unit without the proper authority on 18 May 2004 was 

unreasonable. We are convinced that the appellant’s failure to take 

reasonable actions to determine the true facts concerning his military status 

renders any claim of mistake as to his military status defective. We conclude 

that the defense of mistake of fact was not raised and, therefore, could not 

terminate his absence on 10 June 2008. 

Having concluded that the appellant’s UA was not terminated on 10 June 

2008 by any of the means listed in Article 86(c)(10), or by mistake of fact, we 

find that the military judge’s finding that the appellant’s UA was terminated 

by surrender on that date was error and that portion of his finding cannot be 

affirmed. Accordingly, if we are to affirm the appellant’s UA conviction, we 

can only affirm a one-day UA that occurred on 18 May 2004. Lovell, 22 

C.M.R. at 239; see also MCM, Part IV, ¶10(C)(8). (“If the duration [of the UA] 

is not alleged or if alleged but not proven, an accused can be convicted and 

punished for only [one] day of unauthorized absence.”).

In order to determine whether we can affirm the appellant’s offenses, we 

must first address the appellant’s claim of error—that his convictions are 

barred by the statute of limitations of Article 43(b)(1), UCMJ.

B. Are the convictions barred by the statute of limitations? 

Like the offense of UA, missing movement is also an instantaneous

offense and is committed the moment an accused misses the movement of his 

or her unit. United States v. Dube, No. 200000698, unpublished op., 2001

CCA LEXIS 5 at *4 (N-M. Ct. Crim. App. 16 Jan 2001). We previously

 

16 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 1010 (10 Sep 

2014).

17 Record at 75. During cross-examination, the appellant admitted that he had 

been to two of the three recruiting stations in Omaha, Nebraska. Id. at 105.
United States v. Hutfless, No. 201700175

9

determined that if the appellant’s UA conviction is to be affirmed, we could 

only affirm a one-day UA offense that occurred on 18 May 2004. The military 

judge convicted the appellant of missing movement through design on 25 

August 2004. The appellant’s sworn charges were received by the officer 

exercising summary court-martial jurisdiction over his command on 21 

February 2017 (UA offense) and 6 March 2017 (missing movement offense).

Article 43(b)(1), UCMJ, provides that “[e]xcept as otherwise provided in 

this section (article), a person charged with an offense is not liable to be tried 

by court-martial if the offense was committed more than five years before 

receipt of sworn charges by an officer exercising summary court-martial 

jurisdiction over the command.” However, “[p]eriods in which the accused is 

[UA] or fleeing from justice shall be excluded in computing the period of 

limitation prescribed in [Article 43(b)(1), UCMJ.]” Art. 43(c), UCMJ.

The appellant argues that because his UA terminated more than five 

years prior to the receipt of his sworn charges by the officer exercising 

summary court-martial jurisdiction for his command, the Article 43(b)(1), 

UCMJ, five-year statute of limitations on his offenses had expired. Thus his 

convictions are barred by the statute of limitations.

18 We disagree. We find 

the appellant went UA and missed movement “in time of war;” therefore, 

there was no statute of limitations applicable to his offenses. Art. 43(a), 

UCMJ.

1. UA and missing movement in time of war

Article 43(a), UCMJ, provides that “[a] person charged with [UA] or 

missing movement in time of war . . . may be tried and punished at any time 

without limitation.” (Emphasis added). What constitutes “time of war” within

the context of Article 43(a), UCMJ, is not a novel question.

Military courts have used two tests to determine whether a period of 

military conflict qualifies as a “time of war.” A period of conflict is a “time of 

war” if either “Congress formally declares war (de jure war test) or if the 

conflict is a war in fact (de facto war test).” United States v. Castillo, 34 M.J. 

1160, 1163 (N.M.C.M.R. 1992) (citing United States v. Gann, 11 C.M.R. 12, 13 

(C.M.A. 1953)); see also United States v. Bancroft, 11 C.M.R. 3 (C.M.A. 1953).

 

18 Despite our findings that the military judge’s determination that the 

appellant’s UA terminated on 10 June 2008 was error and that if we are to affirm the 

UA conviction we could only affirm a one-day UA occurring on 18 May 2004, the basis 

of the appellant’s claim of error would remain unchanged—the officer exercising 

summary court-martial jurisdiction did not receive the sworn charges in his case 

until after the five-year statute of limitations had run.
United States v. Hutfless, No. 201700175

10

Recognizing that Congress has not formally declared war since the adoption 

of the UCMJ, we turn our attention to the de facto war test.

For the purposes of the UCMJ, the existence of a de facto war “is 

determined by the realities of the situation as distinguished from legalistic 

niceties, and the existence of armed hostilities against an organized enemy is 

of significant crucial importance.” Castillo, 34 M.J. at 1163. (citation and 

internal quotation marks omitted). The practical considerations to be 

evaluated when determining whether a conflict is a de facto war include, but 

are not limited to:

the nature of the conflict; the manner in which it is carried on; 

the movement to and presence of large numbers of personnel 

on the battlefield; the casualties involved; the sacrifices 

required; the drafting of recruits to maintain a large number of 

personnel in the military service; national emergency 

legislation enacted and being enacted; executive orders 

promulgated; and the expenditure of large sums to maintain 

armed forces in the theater of operations.

Id. (citing Bancroft, 11 C.M.R. at 5).

Since the implementation of the UCMJ, our superior court, this court, and 

our sister service courts of criminal appeals have found the Korean, Vietnam, 

and both Iraq conflicts (Operations DESERT SHIELD/DESERT STORM and 

IRAQI FREEDOM) were de facto wars. See United States v. Anderson, 38 

C.M.R. 386, 387 (C.M.A. 1968) (Vietnam conflict); United States v. Ayers, 15 

C.M.R. 220, 227 (C.M.A. 1954) (Korean conflict); Bancroft, 11 CMR at 5 

(Korean conflict); United States v. Rivaschivas, 74 M.J. 758, 761 (A.C.C.A. 

2015) (Operation IRAQI FREEDOM); Castillo, 34 M.J. at 1166-67 (Operation 

DESERT SHIELD/DESERT STORM). However, the appellant argues that, 

with respect to Operation IRAQI FREEDOM, the Rivaschivas holding 

addressed only whether the conflict was a “time of war” during 2007—more 

than three years after the appellant committed his offenses.

19

As noted by the appellant, the Rivaschivas court did evaluate the conflict 

as it existed in 2007. Rivaschivas, 74 M.J. at 762. Regarding the state of the 

conflict in 2007, the Ricaschicas court noted: 

the continuous and multiple large-scale deployments to both 

Iraq and Afghanistan of combat units going back to 2003, the 

well-documented number of combat fatalities and injuries in 

that theater of operations during those campaigns, the 

 

19 Appellant’s Brief of 2 Nov 2017 at 5.
United States v. Hutfless, No. 201700175

11

tremendous financial cost of our ongoing military conflicts in 

the Middle East, the various legislative enactments and 

executive orders detailing our wartime footing in Iraq and 

Afghanistan, the creation of military commissions with the 

purpose of prosecuting violations of the law of war, and judicial 

decisions such as Hamdi v. Rumsfeld, 542 U.S. 507, (2004). 

Id.

Acknowledging that the Rivaschivas court’s determination is persuasive

but not binding precedent, and that the court focused on the state of the 

conflict in 2007 not 2004, we will apply the Bancroft factors to the conditions 

of the conflict in 2004—when the appellant committed his offenses. As our 

superior court did in Bancroft, we also rely on “[a] reading of the daily 

[media] accounts of the conflict in [Iraq]; an appreciation of the size of the 

forces involved; a recognition of the efforts, both military and civilian, being 

expended to maintain military operations in that area; and knowledge of 

other well-publicized wartime activities . . . .” Bancroft, 11 C.M.R. at 5-6.

2. Conditions of the conflict in 2004

In 2004, our military forces were conducting statutorily authorized 

combat operations in Iraq20 and Afghanistan.

21 Approximately 130,600 

military personnel were deployed to Iraq and the surrounding areas in 

support of the conflict.

22 Over 170,000 reservists and National Guard 

personnel were activated to augment the active duty force.

23 On the 

battlefields of Iraq and Afghanistan, our armed forces were utilizing the most 

advanced and powerful weapon systems in the world. The Department of 

Defense expended substantial funds to maintain armed forces in Iraq and 

 

20 Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. 

No. 107–243, 116 Stat. 1498.

21 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224

(2001).

22 Amy Belasco, CONG. RESEARCH SERV., R40682, TROOP LEVELS IN THE AFGHAN 

AND IRAQ WARS, FY2001–FY2012: COST AND OTHER POTENTIAL ISSUES (2009) at 9 

(citations omitted).

23 Department of Defense, Defense Science Board Task Force, Deployment of 

Members of the National Guard and Reserve in the Global War on Terrorism (2007) at 

7.
United States v. Hutfless, No. 201700175

12

Afghanistan.

24 Our military forces in Iraq and Afghanistan suffered a 

combined 737 killed in action and another 8,221 wounded in action.

25

Applying the Bancroft factors to the conditions of the conflict in 2004, we 

are easily convinced “beyond any reasonable doubt that we [were] in a highly 

developed state of war” in 2004 for Article 43, UCMJ, purposes. Bancroft, 11 

C.M.R. at 6. Because the appellant was charged with UA and missing

movement during this time of war, the five-year statute of limitations does 

not bar his convictions. We, therefore, affirm the appellant’s convictions for a 

one-day UA on 18 May 2004 in violation of Article 86, UCMJ, and missing 

movement through design on 25 August 2004 in violation of Article 87, 

UCMJ.

C. Sentence reassessment

Having modified the findings of the court-martial, we must now consider 

whether we can reassess the sentence. United States v. Winckelmann, 73 M.J. 

11, 15-16 (C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 41-42 

(C.A.A.F. 2006); United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).

We can reassess a sentence without ordering a rehearing if we are confident 

“that, absent any error, the sentence adjudged would have been of at least a 

certain severity[.]” Sales, 22 M.J. at 308. A reassessed sentence must not only 

“be purged of prejudicial error [but] also must be appropriate for the offense 

involved.” Id. (internal quotation marks omitted).

We base these determinations of appropriateness on the totality of the 

circumstances of each case, guided by the following “illustrative, but not 

dispositive, points of analysis”:

(1) Whether there has been a dramatic change in the penalty landscape or 

exposure.

(2) Whether sentencing was by members or a military judge alone.

(3) Whether the nature of the remaining offenses captures the gravamen 

of criminal conduct included within the original offenses and whether 

 

24 The combined cost of supporting combat operations in Iraq and Afghanistan in 

2004 was approximately $92,000,000,000. Amy Belasco, CONG. RESEARCH SERV.,

RL33110, THE COST OF IRAQ, AFGHANISTAN, AND OTHER GLOBAL WAR ON TERROR 

OPERATIONS SINCE 9/11 (2014) at 15.

25 Department of Defense, Defense Casualty Analysis System, Casualty 

Summary by Month and Service, https://dcas.dmdc.osd.mil/dcas/pages/.xhtml, last 

visited: Jul. 5, 2018. By comparison, in 2007, United States military casualties 

included 847 killed in action and 6,872 wounded in action. Id.
United States v. Hutfless, No. 201700175

13

significant or aggravating circumstances addressed at the court-martial 

remain admissible and relevant to the remaining offenses.

(4) Whether the remaining offenses are of the type with which appellate 

judges should have the experience and familiarity to reliably determine what 

sentence would have been imposed at trial.

Winckelmann, 73 M.J. at 15-16.

Under all the circumstances presented, we find that we can reassess the 

sentence and that it is appropriate for us to do so. First, there has not been a 

dramatic change in the penalty landscape. Considering the appellant was 

tried by special court-martial, our action in reducing the appellant’s UA to a 

one-day offense did not change the penalty landscape. The appellant still 

faces the jurisdictional maximum for that forum. 

Second, the appellant elected to be tried and sentenced by a military 

judge, and we are more likely to be certain of what sentence the military 

judge, as opposed to members, would have imposed. 

Third, the gravamen of the conduct for which the appellant remains the 

same—the appellant went UA and he missed the movement of his unit to 

Iraq for a combat deployment. With the exception of the evidence regarding 

the duration of the UA presented during the merits phase of the courtmartial, our action on the findings does not render inadmissible any evidence 

admitted in aggravation. The appellant’s prior civilian convictions would still 

have been admissible under RULE FOR COURTS-MARTIAL 1001(B)(3), MCM.

26

The military judge limited the evidence presented in aggravation to the 

impact the appellant’s missing movement had on his unit’s available machine 

gunners—the appellant’s military occupational specialty—while the unit was 

deployed to Iraq.

Last, these are offenses with which we, as appellate judges, have in depth 

experience and familiarity to reliably determine what sentence would have 

been imposed at trial. The evidence of the appellant’s culpability and the 

impact of his misconduct on his unit’s mission and efficiency remain the 

same. Taking these facts as a whole, we can confidently and reliably 

determine that, absent the error, the military judge would have imposed a 

sentence of at least 10 months’ confinement and a bad-conduct discharge. We 

also conclude that the adjudged sentence is an appropriate punishment for 

 

26 PE 16 reflects the appellant’s civilian convictions for: theft by taking (March 

2008); driving under the influence (September 2008); and assault and battery (April 

2016). PE 17 reflects the appellant’s civilian conviction for attempted commission of a 

class 3A or 4 felony—possession of a controlled substance (October 2011). 
United States v. Hutfless, No. 201700175

14

the modified offenses and this offender—thus satisfying the Sales 

requirement that the reassessed sentence be not only purged of error, but 

also appropriate. 

III. CONCLUSION

The findings and sentence as modified are affirmed. The supplementary 

court-martial order will reflect affirmed findings of guilt to a one-day UA 

committed on 18 May 2004 and missing movement through design on 25 

August 2004 with an affirmed sentence of 10 months’ confinement and a badconduct discharge.

Senior Judge MARKS and Senior Judge JONES concur.

For the Court

R.H. TROIDL

Clerk of Court