UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, HAIGHT, and MAGGS1

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 URIEL RIVASCHIVAS 

United States Army, Appellant 

ARMY 20140471 

Headquarters, I Corps 

Jeffery Lippert, Military Judge (arraignment) 

Andrew Glass, Military Judge (trial) 

Colonel William R. Martin, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major M. Patrick 

Gordon, JA; Captain Ryan T. Yoder, JA (on brief). 

For Appellee: Major A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain 

Timothy C. Donahue, JA (on brief). 

24 July 2015 

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OPINION OF THE COURT 

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HAIGHT, Judge: 

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

pursuant to his pleas, of desertion and false official statement, in violation of 

Articles 85 and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 907 

(2006; 2012) [hereinafter UCMJ]. The military judge sentenced appellant to a badconduct discharge, confinement for three months, and reduction to the grade of E-1. 

The convening authority approved the adjudged sentence. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises one assignment of error, which merits discussion but no relief. 

 

1

 Judge MAGGS took final action in this case while on active duty. 
RIVASCHIVAS—ARMY 20140471 

2 

BACKGROUND 

Appellant was charged with deserting the U.S. Army in December 2007 and 

remaining in unauthorized absence until January 2014. Shortly after appellant’s 

return to Fort Lewis, Washington, charges were preferred against him on 28 January 

2014, received by the summary court-martial convening authority on that same day, 

and ultimately referred to trial on 10 April 2014. On 27 May 2014, appellant 

pleaded guilty by exceptions and substitutions to a desertion that terminated in 

February 2008. During the providence inquiry, appellant explained he originally 

“tried to come back into Army control” in February 2008 by turning himself in at 

Naval Station Great Lakes in Illinois but ultimately remained absent from the Army 

until his return to Fort Lewis in January 2014. 

Despite appellant being absent for more than six years, the government 

elected to not “prove up” the longer desertion as charged and let the conviction 

stand in accordance with the pleaded exceptions and substitutions. This decision to 

not go forward with the period of absence as charged did not affect the maximum 

potential punishment in this case, because the presidentially-set cap for the crime of 

desertion is not contingent on the duration of the absence. Appellant 

unconditionally waived his pretrial Article 32, UCMJ, hearing, pleaded guilty 

without benefit of a pretrial agreement, and did not enter into a stipulation of fact. 

Any potential bar to prosecution because of the statute of limitations was never 

mentioned or discussed. 

On appeal, appellant claims the military judge abused his discretion by 

accepting appellant’s guilty plea without a knowing and affirmative waiver of the 

statute of limitations. We disagree. 

LAW AND DISCUSSION

Article 43(b)(1), UCMJ, states, “[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 the receipt of sworn charges 

and specifications by an officer exercising summary court-martial jurisdiction over 

the command.” Because absence without leave (AWOL) and desertion are “not 

continuing offenses and are committed, respectively, on the day the person goes 

absent [or] deserts,” appellant is considered to have committed his crime of 

desertion when he first left in December 2007. Rule for Courts-Martial [hereinafter 

R.C.M.] 907 discussion; see also United States v. Tunnell, 23 M.J. 110, 111 (C.M.A. 

1986). However, “[w]hen computing the statute of limitations, periods in which the 

accused was . . . absent without leave or in desertion are excluded.” R.C.M. 907 

discussion; see also UCMJ art. 43(c). 

Appellant’s position is that when applying the dates to which appellant 

pleaded guilty as well as applying the obvious and proper exclusion of appellant’s 
RIVASCHIVAS—ARMY 20140471 

3 

admitted period of unauthorized absence, the statute of limitations presumably 

barred prosecution of any charges received after February 2013—that is, five years 

after February 2008. Appellant’s charges were received by the summary courtmartial convening authority on 28 January 2014, thereby stopping the running of the 

statute of limitations on that date, nearly a full year beyond when the Article 

43(b)(1) statute of limitations possibly expired. With that in mind, appellant 

highlights that he did not make an effective waiver of the period of limitation. 

The law is clear. In order “to waive the defense of the statute of limitations, 

the appellant must be personally aware of that right and must knowingly and 

affirmatively waive it on the record.” United States v. Brown, 30 M.J. 907, 909 

(A.C.M.R. 1990). Just how concrete the requirement is that any waiver of the 

statute of limitations be express and knowing has been detailed by our superior 

court: 

Almost 28 years ago, we held that it was “well established 

in military jurisprudence that whenever it appears that the 

statute of limitations has run against an offense,” that fact 

will be brought to the attention of the accused by the 

court. We further held that we would not impose upon an 

accused a waiver of the right to plead the statute of 

limitations in bar of trial when the record does not 

disclose that he was aware of that right. This principle of 

open-court advisement was recognized in paragraph 68c of 

the Manual for Courts-Martial, United States, 1951, and in 

the 1969 Manual for Courts-Martial . . . see R.C.M. 

907(b)(2)(B), Manual for Courts-Martial, United States, 

1984. It was reaffirmed by this Court in United States v. 

Arsneault, 6 M.J. 182 (C.M.A. 1979), and even more 

recently in United States v. Jackson, [20 M.J. 83 (C.M.A. 

1985]. It is too well-established in military law to require 

further elaboration here. 

United States v. Salter, 20 M.J. 116, 117 (C.M.A 1985) (internal citation omitted). 

Accordingly, appellant asserts that he could not have made an effective waiver 

because the military judge did not ascertain on the record if appellant knowingly and 

voluntarily waived the statute of limitations. 

We find the statute of limitations did not bar prosecution of appellant’s 

desertion. Generally, Article 43, UCMJ, imposes a 5-year time bar. However, a 

desertion or AWOL in time of war “may be tried and punished at any time without 
RIVASCHIVAS—ARMY 20140471 

4 

limitation.” UCMJ art. 43(a).2 Therefore, if December 2007, the date of appellant’s 

absence, was during a “time of war,” then the 5-year limitation did not apply, there 

was no bar to waive, and there would have been no requirement to discuss the issue 

further. 

Our sister court, the United States Coast Guard Court of Military Review, 

addressed this very issue with respect to an appellant who pleaded guilty to an 

unauthorized absence from 1968 to 1971, and the charges were received beyond the 

peace-time statute of limitations applicable at that time. United States v. Scott, 46 

C.M.R 541 (C.G.C.M.R. 1971). That court explained: 

The bar of the statute of limitations may be waived so 

long as the accused is aware of his right to assert it. A 

plea of guilty, after explanation of its effect with respect 

to the statute of limitations, operates as such a waiver. In 

a proper case where the statute of limitations, if asserted, 

would have barred trial, the military judge could not 

accept a plea of guilty without questioning the accused 

personally and satisfying himself that the accused 

knowingly and understandingly desired to waive. It was 

not necessary in the instant case for the military judge to 

have questioned [appellant] on this point, however, 

because the AWOL charged was, in contemplation of law, 

an AWOL committed in time of war. 

Id. at 544 (internal citations omitted). 

We, likewise, find it was not necessary in this case for the military judge to 

discuss waiver of the statute of limitations with appellant as his admitted desertion 

in December 2007 was in a time of war—at least for purposes of Article 43, UCMJ. 

 

2 The full text of Article 43(a), UCMJ, reads, “A person charged with absence 

without leave or missing movement in time of war, with murder, rape, or rape of a 

child, or with any other offense punishable by death, may be tried and punished at 

any time without limitation.” We note that desertion is an aggravated AWOL as the 

first two elements of the charged crime of desertion are an “absence” and “without 

authority.” See UCMJ art. 85; see also United States v. Powell, 38 M.J. 153 

(C.M.A. 1993) (labeling a period for which desertion was charged as a “period of 

unauthorized absence”); United States v. Pou, 43 M.J. 778, 780 (A.F. Ct. Crim. App. 

1995) (ruling that a period of desertion qualifies as a period “in which the accused is 

absent without authority” for purposes of Article 43(c), UCMJ). 
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5 

What constitutes a “time of war” for purposes of the statute of limitations as 

outlined in Article 43, UCMJ, is not a novel question. Our superior court, in a case 

involving a soldier who went AWOL within the continental United States at the end 

of 1950, explained that the analysis of “time of war” for purposes of the statute of 

limitations required an approach of “practicality, of broad realism, as distinguished 

from narrow legalism” and concluded that the hostilities in Korea at that time 

constituted a time of war and consequently “no limitation applie[d] to unauthorized 

absences.” United States v. Ayers, 4 U.S.C.M.A. 220, 222, 227, 15 C.M.R. 220, 222, 

227 (1954). Similarly, the same court, in a case of a soldier who deserted his unit at 

Fort Polk in 1964, concluded that “[t]he current military involvement of the United 

States in Vietnam undoubtedly constitutes a ‘time of war’ in that area, within the 

meaning of Article 43’s suspension of the running of the statute of limitations.” 

United States v. Anderson, 17 U.S.C.M.A. 588, 589, 38 C.M.R. 386, 387 (1968).3

When determining whether the country is engaged in a de facto war, as 

opposed to a formally declared or de jure war, appellate courts have looked to 

factors such as: 

[1] the nature of the conflict; [2] the manner in which it is 

carried on; [3] the movement to and presence of large 

numbers of personnel on the battlefield; [4] the casualties 

involved; [5] the sacrifices required; [6] the drafting of 

recruits to maintain a large number of personnel in the 

military service; [7] national emergency legislation 

enacted and being enacted; [8] executive orders 

promulgated; and [9] the expenditure of large sums to 

maintain armed forces in the theater of operations. 

United States v. Castillo, 34 M.J. 1160, 1162-64 (N.M.C.M.R. 1992) (citing United 

States v. Bancroft, 3 U.S.C.M.A. 3, 5, 11 C.M.R. 3, 5 (1953)). 

Like the Court of Military Appeals in 1953, we rely on “[a] reading of the 

daily newspaper accounts of the conflict in [Iraq and Afghanistan]; an appreciation 

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

civilian, being expended to maintain the military operations in that area; and 

knowledge of other well-publicized wartime activities” to convince us “beyond any 

reasonable doubt that we [were] in a highly developed state of war” in 2007. 

 

3

 The Court of Military Appeals held in United States v. Averette, 19 U.S.C.M.A. 

363, 41 C.M.R. 363 (C.M.A. 1970), that the phrase “in time of war” for 

jurisdictional purposes under Article 2, UCMJ, applied only to a war declared by 

Congress and that the phrase therefore did not cover the conflict in Vietnam. But, 

the court in Averette did not overrule Anderson. Instead, the court distinguished 

Anderson based on differences between Article 43 and Article 2. Id. at 365, 41 

C.M.R. at 365. Therefore, the analysis in Anderson continues to apply. 
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6 

Bancroft, 3 U.S.C.M.A at 5-6, 11 C.M.R. at 5-6. Furthermore, we note historical 

facts such as the Iraq War troop surge of 2007, the continuous and multiple largescale 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 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). The 

above is a non-exhaustive list which compels us to hold that appellant deserted the 

U.S. Army in a time of war for purposes of the statute of limitations under Article 

43, UCMJ.4

Because no time limitation applied to appellant’s war-time desertion, there 

was no bar to trial to waive, and consequently no inquiry regarding the statute of 

limitations was necessary. Although we need not decide here if appellant’s pleading 

by exception and substitution to a much shorter period of unauthorized absence 

would have successfully implicated a bar to trial if the peace-time limitation had 

been applicable, we remind military judges and practitioners alike to remain 

cognizant of Article 43, UCMJ, along with its attendant exceptions, extensions, 

suspensions, and tolling provisions. See R.C.M. 920(e)(2) (Instructions on findings 

shall include “[a] description of the elements of each lesser included offense in issue 

unless trial of a lesser included offense is barred by the statute of limitations 

(Article 43, UCMJ) and the accused refuses to waive the bar.”); United States v. 

Wiedemann, 16 U.S.C.M.A. 365, 370, 36 C.M.R 521, 526 (1966) (“[I]f the accused 

pleads guilty to a lesser included offense against which the statute has apparently 

run, the law officer will advise him of his right to interpose the statute in bar of trial 

and punishment as to that offense.”); Tunnell, 23 M.J. 110; see also United States v. 

Thompson, 59 M.J. 432, 439 (C.A.A.F. 2004) (“When the evidence reasonably raises 

issues concerning a lesser-included offense or the statute of limitations, the military 

judge is charged with specific affirmative responsibilities.”). 

CONCLUSION 

 The findings of guilty and the sentence are AFFIRMED. 

 

4

 We acknowledge that several federal courts have concluded that the hostilities in 

Iraq and Afghanistan, during the relevant time period, constituted a time of war for 

purposes of the wartime suspension of limitations codified at 18 U.S.C. § 3287. See, 

e.g., United States v. Frediani, 2015 U.S. App. LEXIS 10449 (11th Cir. 2015); 

United States ex rel. Carter v. Halliburton Co., 710 F.3d 171 (4th Cir. 2013), aff.d 

in part, rev’d in part sub nom. Kellogg Brown & Root Servs. v. United States ex rel. 

Carter, 2015 U.S. LEXIS 3407, 135 S.Ct. 1970 (2015); United States v. Pfluger, 685 

F.3d 481 (5th Cir. 2012). 
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7 

Senior Judge COOK and Judge MAGGS concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: