U.S. Army Officer Vindicated of AWOL After Trial by Court-Martial
A Dental Officer charged with Desertion was convicted of Absence without Leave (AWOL) after trial by General-Court Martial. The military panel that found her guilty also voted to not impose any punishment against the female Officer. This result led to the Court-Martial Convening Authority to disapprove the Court’s findings and to permit the Officer to resign from the U.S. Army with an Honorable Discharge.
A female dental school student applied to join the U.S. Army’s Health Professions Scholarship Program (HPSP). This program provides tuition and expenses for students in dental school in exchange for an active duty military service obligation upon graduation. The female in this case was accepted into the HPSP and received an appointment as a Commissioned Officer in the U.S. Army. Thereafter, she began receiving scholarship and related financial benefits from the Army while attending dental school.
More than one year after her acceptance into the program, the newly commissioned Officer began treatment with a psychiatrist for mental health related issues. The psychiatrist ultimately diagnosed her with bipolar disorder and prescribed her a series of antipsychotic medications. The Officer had no history of mental illness. Following her new diagnosis, the Officer inquired with representatives of the HPSP regarding how to be relieved from the program and her contractual military service obligation. The Officer coordinated mostly with a representative from the HPSP, known as a Students Services Coordinator, who was assigned to her.
The majority of the Officer’s correspondence with her Student Services Coordinator was via email; however, they also had some telephone contact. Their communications centered on the Officer’s inquiries into her ability to be both disenrolled from the HPSP and discharged from the Army. The Officer complied with all of her coordinator’s directives. She completed and provided all requested documentation, to include requests for discharge and disenrollment from the HPSP and U.S. Army. She attended all requested appointments, to include undergoing a medical exam. At the coordinator’s request, the Officer also furnished the Army with documentation from her treating psychiatrist regarding her mental health condition and related treatment. Her psychiatrist prepared letters to the U.S. Army on four separate occasions regarding his care and treatment of the Officer, but Army healthcare providers never contacted or followed up with him.
In response to her disenrollment and discharge requests, the Officer received two pieces of official documentation by mail from the U.S. Army. First, she received a memorandum placing her on involuntary leave of absence from the HPSP. Subsequent to receiving this document, the Army terminated her HPSP scholarship and related financial benefits, which resulted in the Officer seeking alternative financing options to complete dental school. Second, she received another memorandum from the Army informing her that she was medically disqualified from participating in military training. The Officer never received any subsequent documentation terminating her leave of absence from the HPSP or informing her she had been subsequently found medically qualified for military service or training.
In the months following her disenrollment and discharge requests, the Officer received conflicting information from various Army representatives. First, as mentioned above, she received documentation pertaining to her involuntary leave of absence from the HPSP and medical disqualification from training. In addition, her coordinator led her to believe that she was in the process of being disenrolled and discharged on account of her compliance with all of his requests and directives. This belief was further reinforced when the Army terminated her scholarship and other financial benefits. Second, she received conflicting information about her military status from both her coordinator and members of the Army Human Resources Command to whom she was referred by the coordinator. Third, she received further conflicting information in an email from a member of the U.S. Army Recruiting Command (USAREC) who informed the Officer by email that she had been found medically fit for military training and would soon receive orders to report for active duty training. When the female Officer replied with the memoranda she previously received from the Army regarding her involuntary leave of absence from HPSP and temporary medical disqualification from training, the USAREC representative was surprised and informed the Officer that she would look into the matter and get back to her. USAREC never contacted the Officer again.
One day, the Officer received an unexpected and intimidating phone call from an unknown Army Colonel who claimed to be the Dental Branch Chief of U.S. Army Human Resource Command. The Branch Chief informed her that she had been found medically fit and was required to report for active duty. Prior to this call, the female Officer had never met or otherwise been acquainted with the Branch Chief. She also never received any military training and was unfamiliar with the Army’s rank structure. Some weeks later, the female Officer received appointment orders by mail promoting her from the rank of Lieutenant to Captain in the U.S. Army Reserves. She respectfully declined this appointment with the expectation that she was in the process of disenrollment and discharge from the HPSP and U.S. Army, respectively.
As dental school graduation approached, the Officer and her family grew impatient and discouraged with the Army’s prolonged process for adjudicating her disenrollment and discharge requests, and apparent conflicting information. As a result, the Officer and her family engaged civilian counsel to assist her with resolving this matter. Civilian counsel engaged the Army via written correspondence on four separate occasions. Counsel wrote directly to HPSP, including the Officer’s coordinator; U.S. Army HRC; and the Pentagon. For reasons unknown, no one from the Army ever replied to or corresponded with the Officer’s attorney.
The Officer received orders by mail to report to active duty for the Officer Basic Course required of all Army dentists. The Officer did not report as the orders directed. She was admitted to a civilian hospital for mental health issues including suicidal ideations. The Officer’s parents contacted a representative of her Officer Basic Course to advise the Army of her status. The representative acquiesced to the Officer’s absence and suggested to the parents that if her health condition improved, she could attend a later course. This communication was conducted by email. In the following nine months, the Officer’s civilian attorney corresponded with various members of the Army community to coordinate for the Officer’s surrender at Fort Knox, Kentucky, the closest military installation to her home. The primary reason for this was for her to reconnect with the military for official discharge purposes, while maintaining her existing treatment relationship with her psychiatrist in the community where she lived. It was the collective belief of the Officer’s family, doctor and lawyer that relocating alone to Texas, the location of OBC, would be detrimental to her health and well-being. Therefore, the goal was for her to report to and discharge from the Army close to home at Fort Knox.
Due to her failure to report for OBC, the Officer was reported as Absent without Leave (DFR) by officials at OBC and ultimately dropped from the Army’s personnel rolls (DFR). However, for reasons unknown, her DFR was not placed into the Army’s system until the following spring. Once in the system, a warrant was issued for the Officer’s arrest. One afternoon, a civilian police officer visited the Officer’s parents’ home in North Carolina to advise that their daughter had an outstanding arrest warrant for being an Army deserter. The Officer was residing in Louisville, Kentucky at the time, as the Army had known, and was unaware of the arrest warrant until informed of it by her parents. In response to this information, the Officer contacted her civilian attorney and reported for duty at Fort Knox.
At the time she reported for duty, the Officer, her family and legal counsel (civilian and military) were all under the impression, as created by Army representatives, that she would undergo the Medical Evaluation Board process and be discharged from the service. That did not happen. After several months of residing in Louisville, Kentucky and reporting for duty periodically both by phone and twice a week in person at Fort Knox, the Officer was required to begin reporting daily. She was then issued an Army uniform and given assigned duties to work as a receptionist in a dental clinic. Though this assigned duty position was not commensurate with the Officer’s rank, training and education, the Officer was emotionally fragile due to her mental health condition and taking a series of medications that had side effects, such as hand tremors, that limited her ability to practice dentistry. A short time later, the Army preferred charges against the Officer by charging her with Desertion in violation of Article 86, Uniform Code of Military Justice. The government ultimately referred this charge to trial by General Court-Martial.
After charges were filed, the Officer and her family decided to retain a civilian defense attorney who specializes in court-martial and military criminal defense work. After a careful search of lawyers in this field, the Officer and her family hired Attorney John L. Calcagni III. Attorney Calcagni developed a defense strategy for his client that involved filing a series of pretrial motions challenging much of the government’s evidence against the Officer. During the pretrial phase of a court-martial, the parties are required to exchange evidence and information to be used at trial. In this case, the government failed to timely comply with its disclosure requirements as required by the rules of courts-martial procedure. The government disclosed late discovery days before trial. In response, Attorney Calcagni filed pretrial motions alleging late notice or discovery by the government, which prejudiced the accused Officer’s ability to prepare for trial. The Court held a special evidentiary hearing with respect to these motions before trial commenced. The government attempted to defend the motions by offering testimony from the prosecutors assigned to the case to explain their late disclosures. The government’s efforts were unsuccessful. After cross-examination of these witnesses by Attorney Calcagni and his oral arguments to the Court about the adverse effect the untimely disclosures had on the accused’s trial preparation, the Court sided with the defense by granting its motions. The Court further ordered as a form of relief that any evidence the government failed to disclose in a timely manner could not be used or referenced by the government against the accused at trial.
In response to the Court’s ruling, the government filed a motion asking the Court to stay the trial proceedings so that it could file for an interlocutory appeal of the motions ruling with the Army Court of Criminal Appeals (ACCA) in Washington, D.C. The Court granted the motion to stay for the government to pursue interlocutory relief. This resulted in a several month long delay of the trial. During this time, though the government claimed it planned to seek an appeal, it actually decided not to for unknown reasons. It withdrew its application for interlocutory relief, notified the trial court, and thereafter, the matter was rescheduled for trial.
The Dental Officer chose to be tried by a General Court-Martial consisting of court members. The members were all commissioned Officers senior in rank to her. Trial began with the parties’ opening statements. The government presented its opening statement first. In it, the government claimed that the Dental Officer applied to the Army’s Health Professions Scholarship Program (HPSP) in order to receive financial assistance with dental school. By accepting scholarship benefits, she contracted to provide the Army with four years of active duty service upon successfully completing dental school. The government further claimed that after the Officer served in the program and received its scholarship benefits she had a change of heart and no longer wanted to serve in the Army. The government promised to prove that the Officer entered the HPSP, knowingly accepted its scholarship benefits and later applied for disenrollment from the program and discharge from the HPSP and Army, respectively. When her request was denied, the Officer deliberately chose not to report for duty at Officer Basic Course (OBC). The government further claimed that the Officer was placed on notice of her duty to report to OBC in that she was told by phone by an Army Colonel and Dentist who served as Chief of the Army Dental Branch that she was required to report for OBC. This same Army Colonel also told the Officer’s civilian attorneys on a number of occasions of the Officer’s obligation to report for duty. The Officer also ignored the official military orders sent to her home and email by failing to report for OBC. The government concluded by stating that the Officer only returned to military control after learning of a warrant for her arrest charging her as an Army Deserter. Based on these facts, the government promised to prove the Officer’s guilt as of the charged offense of Desertion in violation of Article 85, Uniform Code of Military Justice.
The defense responded to the government’s opening statement with its competing theory of the case. The defense first informed the panel that the Officer was diagnosed with Bipolar Disorder midway through dental school, was under the care of both a psychiatrist and psychologist, and was taking a host of prescribed medications. Because of her condition, she could barely function on a day-to-day basis. The defense also relayed to the panel that the Officer not only sought disenrollment and discharge, but did everything the Army asked of her to obtain this result. This included completing forms and documentation, sending the Army on multiple occasions medical documentation of her condition, and undergoing a discharge examination. She also followed up routinely with various Army personnel, both military and civilian, to determine if her paperwork was properly completed, received by the Army and if anything else was required of her. She also followed up repeatedly by phone and email to check on the status of her disenrollment and discharge. The defense informed the panel of evidence which led to the Officer’s mistaken belief that she was actively being disenrolled from HPSP and discharged from the Army. Evidence of this included the discontinuation of her scholarship and other financial benefits from the Army, receipt of documentation from the Army informing her that she was both placed on leave of absence from HPSP and found to be medically unfit for military training. The Officer also received no documentation reinstating her into either the program or medical fitness status. When she did not report for OBC, a representative from the school informed the Officer’s parents that when and if her medical condition improved, perhaps she could attend a later class. These facts collectively led the Officer to conclude that she was not required to report to OBC. When she and her family learned of the warrant, they were both very surprised. They had both been operating under the belief, as created by the assurances from civilian counsel, that the Army was aware of her location and condition, and that the disenrollment and discharge requests were still being processed. The moment the Officer learned of the warrant, she immediately surrendered to military control at Fort Knox, KY and up to the moment of her court-martial, had been on active duty status and in good standing with her supervisors and chain of command. The defense concluded its opening by conceding the Officer did not report for OBC as her orders directed, but that she had acted under the mistaken belief that she was not required to do so. Because of her mistaken belief, she had not knowingly and willfully absented herself from military authority, and therefore, was not guilty of any crime.
The government presented its case against the Officer after opening statements. The government called a line-up of witnesses to include civilian employees who worked for the HPSP, military Officers assigned to both U.S. Army Human Resources Command’s (HRC) Dental Officer and Officer Assignments Branches and U.S. Army Recruiting Command (USAREC), an Officer representative formerly assigned to the Officer’s OBC at Fort Sam Houston, Texas who corresponded with the Officer’s parents at or near the time she was required to report and failed to report for OBC, and finally an Officer who served as her supervisor upon her return to military control at Fort Knox, Kentucky.
The HPSP two civilian employees testified about the application process for acceptance to the HPSP; the academic and military requirements of HPSP students while in the program; and the military service obligations upon graduation. The employees reviewed the HPSP applications. They also reviewed the student handbook that sets forth the policies and procedures of the program. The employees also discussed how students are required to perform a certain number of days of active duty training for each academic year they spend in the HPSP. The two employees further testified of their knowledge and familiarity with the accused Officer, to include her participation in the HPSP and her request for disenrollment. The Officer’s student services coordinator was one of the two employees called by the government. The other civilian employee was the HPSP supervisor of the Officer’s coordinator. The coordinator discussed his phone and email correspondence with the Officer regarding her claimed mental health condition and request for disenrollment and discharge. He also discussed the medical records and other documentation he received from her, as well as correspondence he received from her civilian attorney. Lastly, he talked of his referring the Officer to military Officers at HRC and USAREC, with whom the coordinator worked to assess HPSP students onto active duty. He referred the Officer to these persons for further information regarding the status of her disenrollment and discharge requests. On cross-examination, these witnesses revealed positive information pertaining to the Officer’s mistaken belief that she was being processed out, at her request, from HPSP and the Army. Both witnesses acknowledged their familiarity that the Officer claimed to have Bipolar Disorder and that her treating doctors did not feel her serving on active duty was in her best interest. The coordinator also confirmed that the Officer was very compliant and responsive in terms of providing requested and necessary paperwork to process her disenrollment and discharge requests, and thereafter, remained proactive in maintaining communication and following up on the status of these requests. The HPSP employees both confirmed that no documentation was sent to the Officer terminating her leave of absence from the HPSP or finding her medically fit for military training. The employees also confirmed that once determined to be medically unfit and placed on leave of absence that the Officer’s scholarship and other financial benefits were discontinued and in this particular case, never reinstated. They also testified that the Officer in this particular case never attended or received any military training. She never attended OBC and never received any classroom or other instruction about military customs and courtesies. For each period of training she was required to complete while in the HPSP, the Officer had been excused due to academic conflicts, which was not unusual. Both employees also acknowledged their receiving multiple pieces of correspondence by the Officer’s civilian lawyer, but never responded to any of the lawyer’s inquiries and never coordinated with Army Judge Advocates (JAG) or government attorneys regarding the same. The civilian lawyer’s correspondence was simply filed away and never responded to. Both HPSP employees also confirmed that while the Officer was in the HPSP, she received an appointment as a Commissioned Officer and promotion to First Lieutenant, which she declined in writing. Lastly, both men acknowledged that though they had the Officer’s contact information to include email and phone numbers, neither of them attempted to reach out to or communicate with her after she failed to report for OBC.
The government next called Officers assigned to the Dental and Officer Assignments Branches at HRC. These Officers discussed the process for assessing dental school graduates from the HPSP onto active duty. They also talked of individual contact and communications with the accused female Officer, as well as the correspondence they received from her civilian attorney. One of the two Officers called was retired at the time of trial, but the former Dental Branch Chief at HRC. He told the panel of a conversation he had with the accused Officer by phone wherein he explained to her she had signed an HPSP contract, received scholarship benefits, and was required to serve on active duty. He further relayed to her during that same discussion that if for some reason she believed she was medically unfit for duty, she would be evaluated by Army physicians after reporting for active duty at OBC. If medically unfit, she would then be properly discharged and if medically fit, she would be expected to fulfill her active service obligation incurred when she entered the HPSP. On cross-examination, the Army Colonel acknowledged that the female Officer was tearful and upset for the duration of their call. He also acknowledged that the female had never attended or undergone any military training while in HPSP and was essentially a civilian dental school student who the Army was anticipating assessing onto active duty. He had no other communication with the female Officer other than this one telephone conversation. He also was aware that she was placed on leave of absence from HPSP after being found medically unfit, and that she had received no additional correspondence from the Army removing her from leave of absence status or concluding that she was medically fit for military duty. As for the correspondence from her civilian attorney, the Colonel admitted to receiving and reviewing several letters, but never provided a written response. He also admitted to trading voicemails with the civilian lawyer, but that they never communicated directly. He reasoned that his message to both the Officer and her civilian lawyer was clear – she contracted into the HPSP, the Army financed her education, and she was required to report and serve on active duty.
The second HRC Officer who testified was formerly assigned to the Officers Assignments Branch. The accused female was referred to this Officer by her student services coordinator. The two exchanged several emails, but she had no recollection of phone calls. She speculated that they had spoken by phone, but could not recall dates, times or even the content or any calls. The Assignments Officer acknowledged that she corresponded by email with the accused. The accused claimed to be suffering from a mental health condition, was under a doctor’s care and sought discharge from the Army. The Assignments Officer could not do much to assist the accused in this regard, as her role was limited to making duty assignments. The Assignments Officer, to whom the accused was referred by her student services coordinator, referred the accused back to the officer. In the meantime, the Assignments Officer continued to work on the accused’s assignment and assessment onto active duty, which ultimately led to the issuance of orders to the accused requiring her to report for OBC at Fort Sam Houston, Texas. On cross-examination, the Assignments Officer admitted the accused was cooperative and compliant in providing requested information, as well as proactive in following up on the status of her requested discharge. She also indicated that she was surprised when the accused Officer informed her that she was on a leave of absence from HPSP and had been rendered medically unfit for military training. Notwithstanding this information, she still processed the accused female’s orders for OBC where she failed to report. The Assignments Officer, like many of the other personnel involved in this matter, received several pieces of correspondence from the accused’s civilian attorneys. However, she failed to reply.
The government next called an Officer who was formerly assigned as cadre at the accused Officer’s Dental OBC. He testified that the accused was on the rolls to report and failed to do so. As a result, he consulted with JAG and based on legal advice, drafted a charge sheet accusing the Officer of Desertion in violation of Article 85, UCMJ. After a period of time of her still not reporting, he forwarded this information to the Army’s Deserter Information Point so that a warrant could issue for her arrest. On cross-examination, he also acknowledged to exchanging emails with the accused’s mother at or near the time she was required to report for OBC. In these emails, he was informed that the accused was then presently hospitalized and under a doctor’s care for behavioral health issues, to include suicidal ideations. He responded by expressing his condolences and concern for the accused’s well-being and indicated that if and when her condition improved, perhaps she could report to a later class.
Lastly, the government called an Officer who served as the accused’s supervisor or Officer-in-Charge (OIC) upon her report to Fort Knox and surrender to military control. He testified that before she reported, he had contact with military defense counsel at Fort Knox who was in contact with both the female Officer and her civilian lawyers. At that time, the Officer was only reported as AWOL from OBC and had not yet been listed as a Deserter or dropped from the Army personnel rolls (DFR). Because of this, when and if she chose to return to military control, she would be required to go to Fort Sam Houston. When and if she was DFR, however, she could report to Fort Knox. Because the Officer lived, worked and treated with her doctors in Louisville, Kentucky, she and her attorneys (military and civilian) sought for her to report and return to military control at Fort Knox. For reasons unknown, it took an unusually long time for the Officer to be reported at DFR. The accused, through counsel, contacted the OIC periodically to check on her duty status. Once she was finally reported as DFR and a warrant issued for her arrest, she immediately turned herself in to Fort Knox. From that point onward, she reported to the OIC, initially by phone and then in person, for a period of several months during which time the OIC and her attorneys thought the Army was processing her discharge. After several months, however, the Command decided to criminally charge the Officer with Desertion. While she was pending court-martial, the accused was assigned to work as a receptionist in the dental clinic on post. Though licensed as a dentist in the State of Kentucky, she suffered from fatigue, tremors and other symptoms from the various prescribed medications she took for her Bipolar Disorder. She also had never attended OBC or received military training. Therefore, she could not work or perform as an Army dentist. On cross-examination, the OIC testified that he supported the accused’s resignation and discharge. He neither supported nor favored court-martial in this case and that the decision to charge her was beyond his control. Though she received no military training while awaiting court-martial, the OIC taught the accused basic military customs and courtesies such as how to wear a military uniform, render and return salutes, and how to acknowledge the military rank structure. Further, he testified how cooperative and compliant the accused was with him and others since returning to military control. She enjoyed a favorable reputation at the dental clinic. She also continued treatment with both with civilian doctors off post and military doctors on post for her mental health condition. After the OIC testified, the government rested its case against the Officer.
The defense presented an affirmative defense on the accused’s behalf that consisted of three witnesses. First, the defense called the accused’s mother. She informed the panel of the accused’s childhood and adolescence in that she was always in good health, physically and mentally, and was an excellent student. The mother testified that she noticed a decline in her daughter’s behavior halfway through dental school. The accused’s grades declined and her mood changed and fluctuated between states of mania and depression. This is about when the mother learned her daughter was treating with mental health professionals and had been diagnosed with Bipolar Disorder. She also testified about the difference in the accused’s attitude toward military service before and after her diagnosis. Initially, the accused was very excited about entering the HPSP and joining the military after dental school. The accused had a friend from dental school that underwent the program and successfully became an Army dentist. The accused was inspired by her friend’s experience and eager to do the same, which motivated her to apply for the HPSP. The mother recalled how excited her daughter was and how proud the family was of her upon being accepted to the HPSP. Once the Bipolar Diagnosis occurred, however, things changed. The accused’s grades rapidly declined, her mood alternated from mania to depression, she experienced suicidal ideations, frequently engaged in risky behavior (i.e. drug use, over consumption of alcohol), and she lacked an interest in practicing dentistry. Her doctors ultimately concluded, based on her condition and symptoms that serving on active duty in the Army was not in her best interests. These collective factors prompted the accused and her family, along with the assistance of doctors and lawyers, to seek her disenrollment from HPSP and discharge from the U.S. Army.
The mother talked of the roller coaster she felt the Army placed her daughter on. The mother testified of her daughter’s efforts to seek disenrollment and discharge from both the HPSP and the Army. She further testified of these entities’ apparent disorganization regarding these actions. The mother discussed how the Army sent her daughter mixed messages. First, it sent official paperwork indicating that the accused was placed on leave of absence from HPSP and medically unfit for military duty. Second, it terminated her scholarship benefits. Third, the Army required, through the accused’s student services coordinator, her to complete and submit a host of documentation, proof of her medical condition, and to attend a medical examination. These collective acts, along with assurances from the student services coordinator, led both the accused and her family to believe she was undergoing the disenrollment and discharge processes. On the other hand, the mother talked of the conflicting information her daughter received from the Chief of the Army’s Dental Branch who claimed by telephone that notwithstanding anything the accused received regarding leave of absence and medical unfitness, she was still required to report for active duty at OBC. The mother also talked about the mixed messages her daughter received by folks at HRC and USAREC who appeared to be clueless that the accused was pending either disenrollment and/or discharge, and that despite information and documentation to the contrary furnished to them by the accused, these individuals continued to process her duty assignment and orders calling her to active duty. Frustrated with the Army’s slow beaurocratic process, the accused and her family retained a civilian attorney to assist with facilitating her disenrollment and discharge. As the accused’s scheduled OBC date neared, the family became increasingly concerned that her discharge was not being processed fast enough. By the time the OBC date arrived, the accused was in the hospital for suicidal ideations and under psychiatric care. The mother informed the panel how, on the advice of counsel, she emailed a representative of the OBC to inform him of her daughter’s status. She further informed the panel that the Officer at OBC replied with apparent sympathy for the accused’s condition, encouraged a speedy recovery, and implicitly assented to her absence by offering the opportunity for the accused to attend OBC at a later date. The mother relayed this information to the family’s attorney and her daughter. The mother testified that in the following months, her daughter and the rest of the family operated under the impression that the attorney they retained continued to maintain contact with the Army by keeping the military informed of the accused’s mental health status, physical location and other updates incident to her pending discharge request. One afternoon, several months later, the mother and her husband, the accused’s father, returned home and discovered a police car at their home. Upon speaking with the officer they learned that the accused had a warrant for her arrest issued by the U.S. Army for being a deserter. The mother testified that she and her husband were shocked by this information, as they had been under the impression that the civilian lawyer was working directly with the Army to facilitate their daughter’s discharge. After learning of the warrant, the parents notified their daughter and the civilian attorney. According to the mother, everyone was equally shocked and surprised by this development. In response, the accused surrendered herself to Fort Knox, Kentucky and returned to military control.
The defense next called an agent of the civilian lawyer retained by the accused and her family. This gentleman was a retired civilian employee for the Department of Defense who formerly worked at Fort Knox as a Public Relations Officer. He was well regarded in the local community and had a lot of contacts at Fort Knox. The civilian attorney hired the former Public Relations Officer to assist in this case, and specifically, with negotiating the accused’s return to military control at Fort Knox and subsequent discharge from military service. The agent informed the panel on how, when and why he and the civilian attorney were retained in this case. He further talked of his knowledge as to the accused’s mental health condition. Though not a doctor or medically trained, he was allowed to testify about his personal observations of the accused’s demeanor, fluctuating and inconsistent behavior, frequent emotional and fragile state, and other observations indicative of her unhealthy mental status. The agent informed the panel of the number of letters that he and the attorney drafted and sent to various persons within the Army. Each letter was drafted individually by the attorney and then sent to a number of individuals to include everyone called as a government witness at trial, plus additional personnel, such as the authors of both the involuntary leave of absence and medical unfitness memoranda the accused received. The agent also told the panel that much to his surprise, not a single person responded to any of the several letters that were sent out. He also told the panel of his communications with military counsel, or Trial Defense Service, at Fort Knox and personnel at the Officer’s OBC. TDS counsel worked closely with the agent and civilian counsel to arrange for the accused’s reporting at Fort Knox, Kentucky instead of Fort Sam Houston, Texas. Personnel at OBC, upon learning of the accused’s mental health condition, applauded the agent and the civilian lawyer for not allowing the accused to report. Given her apparent condition, she was believed to be medically unfit and certainly not ready to attend OBC. Personnel there essentially told the agent that it was a good thing she did not report. The agent communicated this information and all other efforts in this case to both the accused and her family directly.
Because of his contact with TDS and other Army personnel, the agent was surprised when he learned of the warrant for the accused. When he received information about the warrant, he personally coordinated the accused’s surrender to Fort Knox. He relayed to the panel how visibly emotional, distraught and upset the accused was that day. She was in such bad shape that upon arrival to Fort Knox, his primary concern was that a mental health provider be on staff to provide her with necessary support – a request the Army accommodated. From that point onward, the agent and civilian counsel continued to work and collaborate with TDS and the accused’s OIC to facilitate the completion of her discharge process, or resignation from the military. Several months after surrender, however, the agent was shocked when the Army decided to not allow the accused to discharge from service and instead elected to prosecute her for Desertion. In closing, the agent outwardly accepted responsibility before the panel for the accused not reporting for OBC or to military control sooner. He emphasized that it was his honest belief at all times, based on his experience, communication with Army personnel and the information he had known of the accused’s case, that the Army was processing her discharge and that she was not expected to report. He asked the panel to hold him, not the accused accountable for her late report and that he did not believe she knowingly and willfully absented herself from the military, but rather had the mistaken belief that she was undergoing the discharge process and not required to report.
The defense’s last witness was a military doctor. This individual testified about his experience as a physician in the Army. He educated the panel of the physical and mental health standards required for military service. The doctor was asked to review the accused’s medical records before trial. Upon doing so, he learned of her Bipolar Disorder, which he testified is incompatible for military service. He also learned of the various medications prescribed to the accused, which the doctor indicated have side effects that would interfere with her abilities to perform as a dentist. In conclusion, the doctor testified that due to the accused’s current mental health condition, she is not medically fit for military service and had someone from the HPSP HRC or USAREC carefully examined her records and diagnosed condition, she would have been found medically unfit and discharged long ago. The doctor testified that the people responsible for assessing the accused onto active duty mishandled her records by failing to discharge her for medical disqualification as opposed to issuing her orders to report to OBC. According to the doctor, the accused did not qualify for military service, should not have been brought onto active duty and should be medically discharged. After this testimony, the defense rested.
In closing argument, the government argued that its case against the accused was simple and straightforward. She applied to the HPSP and was awarded a scholarship to attend dental school. She accepted the scholarship and in return promised the Army four years of active duty service as an Army dentist. Though she may have developed Bipolar Disorder while in school, the Army did not discharge her from her military service obligation. Instead, it issued her orders to report to OBC at a certain date and time. Even though the accused may have sought disenrollment and discharge, her requests were not granted. The Army issued her orders to report for duty. Aside from the official orders, she was given explicit instruction by various Army Officers to report. She failed to do so. As a result of her willful absence from OBC and her subsequent duty station, the government asked the panel to return a guilty finding of Desertion.
The defense responded by reiterating the accused’s mistaken belief that she was not required to report for OBC. With no military training, the accused viewed the Army documentation placing her on leave of absence from HPSP and finding her medically unfit for training to be part of her military discharge. Her view was reinforced by the Army’s failure to withdraw either the leave of absence or finding of unfitness and its termination of her scholarship and other financial benefits. Though she received a call from the Army Dental Branch Chief, the accused was not previously familiar with the Colonel. Because she had never served in the Army before or attended any training, she also did not understand his high rank or position of authority. His word also conflicted with the official documentation she had received referenced above. The defense also emphasized the conflicting information provided to the accused from various Army civilians and Officers, as well as the repeated assurances from her lawyers that the Army was aware of her location and situation and that her discharge was being processed. The defense argued in conclusion that the accused was a victim of ignorance and poor legal advice, but not guilty of committing any crimes, to include Desertion. She never formed a specific intent to deliberately absent herself from the Army on a permanent basis. She simply did not report for duty because she mistakenly believed she was not required to do so because of her pending discharge.
After several hours of deliberating on guilt versus innocence, the panel members returned a verdict. The members found the accused female Officer not guilty of the charged offense of Desertion, but guilty of the lesser included offense of Absence without Leave. Following this verdict, the court-martial transitioned from the guilty phase of trial to the pre-sentencing phase of the trial.
The government presented virtually no evidence in aggravation at sentencing. The defense, on the other hand, called the accused’s mother and father; her husband; her Commander and a co-worker from the Dental Command where she had been assigned. The accused herself also testified in the form of an unsworn statement. All defense sentencing witnesses testified that though they were disappointed by the panel’s verdict, they respected the decision. They each sought lenience on the accused’s behalf. The witnesses also provided their opinions about how any sentence to confinement would impact the accused’s pre-existing fragile mental state. They iterated that she was already devastated by the long, drawn out court-martial process and guilty verdict and did not believe she could emotionally process or tolerate being separated from her comfort zone of family members and doctors if sentenced to confinement. The parents testified that they and the accused had no prior exposure or experience with the military. They reiterated that their family followed the advice of the civilian lawyer they retained along with his agent who testified at trial. Had they known the Army actually expected the accused to report for duty, they believed she would have done so. The parents further opined on how they thought the accused’s recent conviction would adversely impact her future civilian career prospects. They believed their daughter was presently disadvantaged by both her inability to practice dentistry and diagnosed Bipolar Disorder. They believed that the newly imposed criminal conviction would further place her at a disadvantage in the civilian job market.
The accused’s husband, a civilian attorney, testified next. He talked about the circumstances by which he and the accused met, their recent marriage, and that they were expecting their first child in the coming months. The accused had a pre-existing medical condition that caused them to believe she was incapable of conceiving children, so the news of her pregnancy was viewed by them as a blessing. He also testified about how the medications the accused took for Bipolar Disorder presented significant risks to the pregnancy and as a result, she discontinued use of the drugs until the baby was born. He told the panel how, from his observations, the accused’s not taking the medications was adversely affecting and exacerbating her underlying mental health condition. The husband also drew from his experience as an attorney to relay to the panel the prejudicial effect his wife’s criminal conviction would have on her future employment prospects. He also expressed personal concerns of them becoming a single income family with her inevitable discharge from the military.
The accused’s Dental Commander and his secretary, the accused’s co-worker, testified favorably on her behalf. They each spoke about what a pleasure the accused was to have in the clinic. Though not acting as a dentist, she made meaningful contributions to the clinic’s mission by assisting in an administrative capacity. For someone who was pending court-martial, she remained professional, diligent in the performance of her duties, and committed to her job and clinic mission. They both testified they were sad to see the accused leave. Neither witness supported the accused’s court-martial or the imposition of any punishment. They both favored allowing her to be discharged or receive a resignation. They did not view the accused as a criminal and believed that but for her condition, which was beyond her control, she would be an invaluable asset to the Army and Dental Command. The Commander provided individual testimony regarding his efforts to teach and train the accused about basic Army customs and courtesies. He believed that with some time and practice she integrated well with the other Officers assigned to Dental Command. The secretary testified of her observation of the accused. With a son that had Bipolar Disorder, the secretary brought her personal experience with this condition to the court-martial. After relaying her own struggles with this illness, she testified about the accused’s behavior and demeanor, and how notwithstanding such limitations, the accused was an invaluable part of their office, was highly regarded by all, and a meaningful contributor and force multiplier. Both the Commander and his secretary indicated that they would happily work or serve with the accused again and would love to retain her as part of the dental clinic staff.
The accused was the last to testify. She reiterated many of the themes echoed by her parents and husband, but most importantly of all, she apologized to the panel for not knowing any better regarding her obligation to report for duty, for relying so heavily on the advice of others not to report, and for not following up more closely regarding her obligation to report. She talked about the short, but positive experience she had with the military since reporting for active duty. She also indicated that but for her mental health condition, she would be happy to serve. She thanked the panel for allowing her the chance to speak with them directly and asked them to consider her background, lack of experience, health condition, pregnancy and family when imposing sentence.
After the sentencing evidence, the parties made sentencing arguments. The government requested that the accused be dismissed from military service as the only sentence. The government prosecutor spent his entire argument emphasizing the appropriateness of this defense given the facts and circumstances of the case. In response, the defense argued that the accused receive no more than a written reprimand. The defense sought to convince the panel that the accused had already been punished from the entire court-martial experience and the criminal conviction she sustained from the panel’s guilty verdict. In support of this request, the defense cited the facts leading up the accused’s failure to report, her excellent duty performance since reporting, and extenuating/mitigating facts such as her mental health, pregnancy, family circumstances, and outward support from the Dental Commander, his secretary and others who testified in her favor. The defense also argued that the government shared responsibility for the accused’s failure to report because it failed to timely process her discharge; its agents provided her with conflicting guidance and direction; it failed to follow up with the accused when she did not report for OBC; it did not properly evaluate her medical condition.
The panel deliberated for a short period of time and returned a sentencing verdict that consisted of no punishment. This verdict of no punishment was inconsistent with the panel’s prior verdict of guilty as to the lesser included offense of Absence without Leave. The panel also made two unusual recommendations to the court-martial Convening Authority. First, it recommended that the accused female Officer be permitted to undergo an expedited medical evaluation board process, which is the Army’s mechanism for Soldiers to receive a medical discharge. Second, the panel recommended that the Convening Authority initiate an investigation into the HPSP to determine why the accused’s case was not handled properly and how a situation such as this can be avoided. Once the panel was dismissed from the courtroom, several members approached the accused and her family to shake hands, apologize for the accused’s experience with the Army, and to wish her well with her future endeavors.
Following trial, the defense petitioned the Convening Authority to set aside the accused’s court-martial conviction. In support of this petition, the defense argued many of the facts and circumstances that it previously argued before the panel at trial. The defense also emphasized the inconsistent trial result between the accused’s conviction of a lesser included offense and the court’s imposition of no punishment. The defense also reminded the Convening Authority that according to the Army doctor’s testimony, had the accused’s medical condition been properly evaluated while she was in the HPSP, she would have been discharged from service and never should have received orders to report for OBC and active duty. Based on these collective factors, the defense argued that the accused was a victim, not a criminal, and should not be permanently stigmatized with a criminal conviction. Though a panel convicted her, the defense argued that the panel’s inconsistent verdicts demonstrated its potential lack of understanding of the legal instructions at trial. Further, the members’ compassionate words and actions toward the accused and her parents after trial showed that the members wanted to do right by the accused, not prejudice or inhibit her future. Based on these collective arguments, the Convening Authority set aside the guilty verdict, which erased the accused’s AWOL conviction. Thereafter, the accused was permitted to leave the Army with an Honorable discharge – a result she would have experienced long ago had the Army and the HPSP timely and properly processed her initial disenrollment and discharge requests. Congratulations to this Army Officer for having the faith, perseverance and courage to travel this winding, seemingly never ending, and often times, bumpy road to justice.
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The Law Office of John L. Calcagni, III offers clients representation in the areas of Criminal Defense, Military Defense, Federal Criminal Defense, OUI Defense in MA , Assault and Battery and all criminal matters.
As a Criminal and Military Defense Attorney and former prosecutor with the US Army JAG Corps, John Calcagni, is admitted to practice in the United States Court of Appeals for the Armed Forces and the U.S. Army Court of Criminal Appeals, as well as the state and federal courts in Rhode Island, New York, Connecticut, Florida and the Commonwealth of Massachusetts.
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