174

BOARD OF REVIEW
ACM 2289
UNITED STATES
v.
Private First Class WILLIAM MASON, AF 6712867, Headquarters
and Headquarters Squadron, 1100th Air Base Group
Continuance absence of witness materiality constructive
condonation.
1. An accused was charged with two periods of desertion, one
terminating on 25 November 1946 and the other terminating on 8
January 1949. To establish a defense of constructive condonation, the
defense offered in evidence an extract copy of a morning report entry of
the 307th Air Base Group, MacDill Air Force Base, Florida, showing the
accused from Conf to dy on 10 February 1949. Defense counsel then
requested a continuance for the purpose of obtaining, either in the form
of a deposition or personal appearance before the Court, the testimony of
a certain general officer. Defense counsel asserted that if such officer,
who was then in Alaska, was present and sworn, he would testify that
on or about 10 February 1949 he was the Commanding General of the
307th Bombardment Wing, and that, as such, on that date, he not only
was invested with, but exercised general court-martial jurisdiction, and
that on that date, with his constructive knowledge, the accused . . . was
released from confinement, without restriction. It appeared from the
record that defense counsel rested his motion for a continuance upon the
proposition that the evidence he had placed before the Court needed only
to be supplemented by the facts which be expected to establish by the
testimony of the general officer to make out a defense of constructive
condonation. Neither the record of trial nor the accompanying papers
contained anything to indicate what testimony the general officer might
have given if present and testifying under oath, other than the assertions

of defense counsel. However, the Court could properly accept such

assertions as substantially true (MCM 1949, par 52c). The motion for a
continuance was denied. The only question concerning the propriety of
the denial was the question of the materiality of the expected testimony
of the absent witness. HELD: The motion for continuance was properly
denied. Under the circumstances of this, case, it would appear that unless
the testimony of the general officer would have materially affected the
accused's case, the denial of the motion was not in error (CM 330299,
Fickas, 78 BR 363, 365, 366; 12 Am Jur. Continuances, 23). Unless,
therefore, the expected testimony of the general officer would have
furnished an essential connecting link in the chain of evidence necessary
to establish the constructive condonation claimed by the defense, the
Board of Review must conclude that it would not have been of material
advantage to the accused to have obtained it.
Desertion constructive condonation.
2. A motion for dismissal of a Charge of desertion was made on the
grounds of constructive condonation based on the claim that the accused
had been promoted from private to private first class after the offense
was committed. There was no showing, nor contention that evidence was
available to show, that the promotion was made by a commander
exercising
175
UNITED STATES v. MASON
(ACM 2289)
general court-martial jurisdiction or that his mind was directed to this
particular offense and was consciously willing that the accused be
granted exception from the consequence of it. The law member,
therefore, properly denied the motion.

Exceptions and substitutions place of apprehension.

3. The substitution by the Court in its findings, of the place of
apprehension of the accused as shown by the proof, in lieu of the place
alleged, is proper. (Citing MCM, 1949, par 78c; CM 261111, Kuykendall,
40 BR 141.)
Morning reports contemporaneous entries,
4. Morning report entries need not be made contemporaneously with
the happening of the event. (Citing ACM 2150, Virgilio, 2 CMR 435.)
Desertiontermination in manner not shown.
5. An accused was charged with desertion until he surrendered
himself at Wilmington, Delaware, on 25 November 1946. He was found
guilty, the Court excepting the words Wilmington, Delaware, and
substituting the words Fort Dix, New Jersey, therefor. The inception of
the absence of the accused was shown by competent evidence. To show
the termination of the absence, the prosecution offered in evidence an
extract copy of a morning report of a unit at Fort Dix, New Jersey. After
certain deletions were made by the Court upon objections by the defense,
the entry showed the accused as Atchd unasgd fr AAF ORD Greensboro
NC . . . per par 12 SO 385 Hq 1262 ASU Ft Dix NJ EDCMR: 28 Nov 46.
The wording of the extract copy, with its deletions, left nothing which
explained the circumstances of the attachment. HELD: In the absence of
other evidence to the contrary, the accuseds unauthorized absence
continued until terminated by his return to military control at Fort Dix,
New Jersey, on or about 25 November 1946. There being no evidence that
the accused surrendered himself, as alleged and found, the record of trial
will support only a finding as to the manner of termination of the period of
absence as finds that the accused returned to military control in a manner
not shown.
Jurisdiction of Air Force over Army personnel.

6. The accused, who was arraigned and tried on 16 August 1949,

was alleged in one Specification of the Charge to be a member of a unit of
the First Army at Fort Dix, New Jersey, at the time of the alleged offense.
There was no evidence that he was still a member of the Department of
the Army at the time of the trial, and the accused was described in all
Specifications as currently being a member of an organization of the
Department of the Air Force. He was so arraigned, and his identity as
such was thereby established prima facie. There was no issue raised
regarding this fact, either by the accused or by the appearance of any
affirmative fact in the record of trial, showing that he was not a member
of that organization (ACM 18, Baggett. 1 CMR 16, 22; ACM 539, Juris.
1 CMR 485, 489). There was no evidence that the accused had in fact
been at any time the subject of an interdepartmental transfer. It appears
that the language of such Specification aforementioned should have read
then attached to rather than then a member of, and that the words
actually employed amounted to a harmless misnomer. Assuming that the
accused was a member of an organization of the Department of the Army
at the time of the offense complained of, the Department of the Air Force
would nevertheless have had jurisdiction to punish the offense at the time
of this trial.
176
BOARD OF REVIEW
(CMR 2289)
This was specifically provided for in 4 of Public LAWS 774, Act of June
25, 1948 (62 Stat 1014 [c 648, 5 USC 627j, 627k, 627l], and leaves no
doubt AS to the jurisdiction of either department to prosecute such
offense.
Trial by General Court-Martial, convened at Bolling Air Force
Base, District of Columbia, on 16 August 1949. Dishonorable
discharge, total forfeitures after date of order, and confinement
at hard labor for three (3) years and six (6) months.

1. The record of trial in the case of the airman named above has
been examined by the Board of Review and the Guard submits this, its
holding, to The Judge Advocate General, United States Air Force.
2. The accused was arraigned and tried upon the following Charge
and Specifications;
CHARGE: Violation of the 58th Article of War.
SPECIFICATION 1: In that Private First Class William
Mason, Headquarters and Headquarters Squadron,
1100th Air Base Group, Bolling Air Force Base,
District of Columbia, then a member of Squadron O,
106th Army Air Force Base Unit, Overseas
Replacement Depot, Greensboro, North Carolina, did at
Overseas Replacement Depot, Greensboro, North
Carolina, on or about 8 March 1946, desert the Service
of the United States, and did remain absent in desertion
until he surrendered himself at Wilmington, Delaware,
on or about 26 November 1946.
SPECIFICATION 2: In that Private First Class William
Mason. Headquarters and Headquarters Squadron,
1100th Air Base Group, Bolling Air Force Base,
District of Columbia, then a member of detachment
Number 3. 1262nd Army Service Unit, First Army, Fort
Dix, New Jersey, did, at Fort Dix, New Jersey, on or
about 6 December 1946, desert the service of the
United States, and did remain absent in desertion until
be was apprehended at Adamsville, Florida, on or about
8 January 1949.
SPECIFICATION 3: in that Private First Class William
Mason, Headquarters and Headquarters Squadron,

1100th Air Base Group, Bolling Air Force Base, District

of Columbia, then a member of Air Police Squadron,
307th Air Base Group, MacDill Air Force Base, Tampa,
Florida, did at MacDill Air Force Base, Tampa, Florida,
on or about 4 March 1949, desert the service of the United
States, and did remain absent in desertion until be
surrendered himself at Havre de Grace, Maryland, on or
about 26 May 1949.
After the arraignment, but prior to pleading to the general issue, the
accused made a special motion to dismiss Specifications 1 and 2 of the
Charge, which motion was denied. The accused then pleaded not guilty to
all of the Specifications of the Charge and to the Charge. The Courts
findings were as follows:
Of Specification 1 of the Charge;
Guilty except the words Wilmington, Delaware substituting therefor
the words Fort Dix, New Jersey, of the excepted words, Not Guilty, of the
substituted words, Guilty.
Of Specification 2 of the Charge;
Guilty
177
UNITED STATES v. MASON
(ACM 2289)
Of Specification 3 of the Charge;
Guilty, except the word desert and in desertion, substituting herefor,
respectively, the words absent himself without leave from and without
leave, of the excepted words Not Guilty, of the substituted words Guilty
and guilty of a violation of the 61 at Article of War.

Guilty.
Of the Charge:
The Court sentenced the accused to be dishonorably discharged the
service, to forfeit all pay and allowances to become due after the date of
the order directing execution of the sentence, and to be confined at hard
labor at such place as the proper authority may direct for three (3) years
and six (6) months. No evidence of previous convictions was introduced.
The reviewing authority approved the finding of guilty of the Charge,
Specifications 1 and 2 thereof, but only so much of the findings of guilty
of Specification 3 of the Charge and of the Charge as involved findings
that the accused absented himself without leave at the place and time
alleged and remained so absent until 26 May 1949, in violation of
Article of War 61. He approved the sentence, designated the Branch
United States Disciplinary Barracks, New Cumberland, Pennsylvania, or
elsewhere as the Secretary of the Army may direct, as the place of
confinement and forwarded the record of trial, withholding the order
directing execution of the sentence, pursuant to Article of War 50e.
3. Special pleas and motions.
Prior to entering pleas to the general issue, the accused moved for
dismissal of Specifications 1 and 2 of the Charge on the
ground of constructive condonation R. 6). The defense cited several
authorities for the legal basis for such a motion R. 6, 7). He then offered
in evidence an extract copy of a morning report entry of the Air Police
Squadron, 807th Air Base Group, MacDill Air Force Base, Florida,
dated 10 February 1949, which reads as follows:
10 February 1949
Mason William AF-6712367 Pfc-6 010
Conf to dy

/s/Julious C. Griffin
Capt, USAF
Commanding
The entry was admitted into evidence as Defense Exhibit A R.
7).
The record then reveals the following:
DEFENSE: For further proof of the defenses
statements, the defense would like to call Brigadier General
Donald R. Hutchinson. I informed the prosecution two weeks
ago of my desire to call this witness and I now ask the
prosecution whether he is here or not. I have informed the
prosecution of his address.
PROSECUTION. The prosecution has determined,
through correspondence, that Brigadier General Hutchinson
is no longer the Commanding General of MacDill Air Force
Base, Tampa, Florida, and that General Donald R.
Hutchinsons present address is the 57th Fighter Wing, APO
942, c/o Postmaster, Seattle, Washington, and other than this,
the prosecution has made no further attempt to obtain or
procure the person requested.
DEFENSE: With the courts permission, I will proffer
what he was to say and then the court may ascertain whether
it will grant a continuance or some other form of evidence to
be taken from the General. If General Donald R. Hutchinson,
presently of Fort Richardson, Anchorage, Alaska, were
present and sworn he would state substantially as follows:
That on or about 10 February 1949 he was the Commanding
General of the 807th Bombardment Wing, and that, as such,
on that date,

178
BOARD OF REVIEW
(ACM 2289)
he not only was invested with, but exercised general courtmartial jurisdiction, and that on that date, with his
constructive knowledge, the accused, Pfc Mason, was
released from confinement, without restriction.
PROSECUTION: May the prosecution ask upon what
is based this particular proffer of evidence? Is it through
personal knowledge or talk with General Hutchinson that the
defense can state what General Hutchinson would state
should he appear before the court and make such a statement
as that?
LAW MEMBER: Are you asking the defense or the
court?
PROSECUTION: I will ask the defense, and ask that
the defense be required to show the basis for this particular
type of testimony he is giving.
DEFENSE: The defense does not feel he is obligated
to answer the prosecutions question. Does the Court direct
the defense to answer?
LAW MEMBER: If the defense does not desire to
answer, he does not have to.
DEFENSE: The defense wont answer then. R. 7,8)
The law number suggested that the prosecution and the defense
attempt to arrive at a stipulation as to the expected testimony, whereupon

the Court closed for a brief recess. Upon the opening of the Court the
defense counsel agreed with the accused to stipulate that General
Hutchinson was in command of the 307th Bombardment Wing and was
the Commander of MacDill Air Force Base on 10 February 1949, and
that he did on that date have general court-martial jurisdiction. The
prosecution agreed to that stipulation and it was accepted R. 8). The law
member then asked if that disposed of the defenses request for General
Hutchinson as a witness, to which the defense counsel replied:
. . . We could not agree that General Hutchinson would
say he had constructive knowledge of the accuseds release
from confinement without any conditions. I still believe it
would be the testimony of General Hutchinson and still
would like to proffer that. It must be obvious to the court that
General Hutchinson did not personally let the man out of jail.
He had authority to so direct his subordinates, and it is the
defenses contention that whether or not he had actual
knowledge of the release is immaterial as long as those
working under him had authority and it was directed by the
appointing authority. Would the court like the citations that I
have read? I have several others from Winthrop and the
Manual for Courts-Martial
LAW MEMBER: The law member would like to see a copy of
AR 615-300 in force on February 1949.
[AR 615-300 was handed to the law member.]
LAW MEMBER: Does the defense have any evidence to present
in support of his motion?

DEFENSE: The document I have introduced in evidence, the

stipulation, plus the proffer of what General Hutchinson would state
concerning the mans release is all that I have. . . (Italics added) R. 9)
After some discussion relating to another matter, the record shows
the following:
LAW MEMBER: . . . With reference to the basic motion made by
the defense counsel, does the defense have anything further?
DEFENSE: The court is not permitting General Hutchinson to
testify?
LAW MEMBER: Do you make a motion to call General
Hutchinson as a witness?
DEFENSE: I called him as a witness and the counsel for the
government stated he was not here,
LAW MEMBER: Are you asking for a continuance?
DEFENSE: I said I would proffer any evidence, and if the court
feels a continuance is warranted, the defense would like to have it.
179
UNITED STATES v. MASON
(ACM 2289)
LAW MEMBER: Subject to objection by any member of the
court, the motion of the defense for a continuance in denied.
DEFENSE: I have nothing further to present along this line. R.
11, 12)

Having in mind that the record of trial shows that the defense
counsel is not a lawyer within the meaning of Article of War 11, the
Board of Review has treated the defense counsels language regarding
the desirability of a continuance as an outright request for continuance
for the purpose of obtaining general Hutchinsons testimony either in
person before the Court or in the form of a deposition.
The accused has the right to reasonable opportunity to prepare and
present his case and to present material witnesses in his behalf (MCM,
1949, pars 45b, 49f. 52a, b). Paragraph 52b of the Manual, supra, states
in part:
. . . Although the question of a continuance is one for
the sound discretion of the court, whenever it appears that the
court has abused its discretion and denied the accused a
reasonable opportunity to prepare for trial or otherwise
perfect his defense, the proceedings should be disapproved
. . .
Paragraph 52b of the Manual supra, states that:
. . . The right to prepare for trial and to secure necessary
witnesses is fundamental . . .,
but in discussing the right to continuance, uses the term material
witness.
It is noted that both the defense counsel and the law member refer
to the defense counsels statements relative to the nature of General
Hutchinsons expected testimony as a proffer of testimony. The Board
of Review considers the procedure here under consideration to be that
discussed in paragraph 52c the Manual for Courts-Martial, 1949, which
deals with applications for continuance and action thereon. We do not
find such language used in that discussion. Therefore, while the word

proffer is more appropriately used in connection with offer of proof,

discussed in paragraph 140c of the Manual, an entirely separate and
distinct matter, we are considering that the term proffer as used by the
counsel and law member was intended to refer to the showing required
by paragraph 62c of the Manual of . . . the facts which he expects to be
able to prove by such witness . . .. The pertinent portions of this
paragraph are as follows:
. . . the application should show that the witness is
material, that due diligence has been used to procure his
testimony or attendance, that the party applying for the
continuance has reasonable ground to believe that he will be
able to procure such testimony or attendance within the
period stated in the application, the facts which he expected
to be able to prove by such witness, and that he cannot safely
proceed with the trial without such witness.
In general the facts as set forth in the application may
be accepted as substantially true; but if long or repeated delay
is involved, or the facts are disputed or improbable, or if any
other good reason therefor exists, the applicant may be
required to furnish further proof. . . ,
Neither the record of trial nor the accompanying papers contain
anything to indicate what testimony General Hutchinson might have
given if present and testifying under oath, other than the bare assertions
of the defense counsel. However, the Court may properly accept such
assertion as substantially true, as noted above. Since the Court did not
require the defense to offer anything further in the way of assurance to
the Court that he had reasonable grounds for believing that such would
be the nature of General Hutchinsons testimony, it appears that the
defense counsel could have properly assumed that the Court was in fact
accepting his statement as being substantially true. The Board feels that
it is therefore bound so to consider that statement. For the purposes of

this discussion, the Board will assume, without so deciding, that the
other requirements of the above quoted paragraph of the Manual
180
BOARD OF REVIEW
(ACM 2289)
have been met and will consider the question of the materiality of the
expected testimony of the absent witness and the propriety of the law
members ruling on the defense motion for continuance under such
circumstances.
Had the record herein failed to indicate so completely the facts
which, the defense counsel expected to establish by the testimony of the
absent witness, and that he depended upon these facts to supply the sole
missing link in the chain of evidence which he relied upon to establish
his claim, there would, perhaps, have been a somewhat different
question presented here. However, the position of the defense counsel in
the matter was quite clearly stated in that he rested his motion upon the
proposition that the evidence he had placed before the Court needed only
to be supplemented by the facts which he expected to establish by the
testimony of General Hutchinson to make out a defense of constructive
condonation of the offenses described in Specifications 1 and 2 of the
Charge. The law members extensive inquiry on this particular point and
the defense counsels response thereto leave no room for doubt but that
this issue was clearly drawn, that this was fully understood by all
concerned, and that the law members decision to deny the motion for
continuance turned on ths issue of whether, in law, the sum total of all
the evidence which the defense counsel had presented and expected to
obtain by such continuance would have established either directly or by
reasonable inference the elements necessary to constitute such
condonation. The question presented, therefore, appears to be whether or
not the law members apparent summation or the practical aspects of
such a continuation and his apparent findings of law were correct.

Under the circumstances of this case, it would appear that unless

the testimony of General Hutchinson would have materially affected the
accuseds case, the denial of the motion was not in error. This conclusion
appears to be fully supported by the view followed in both military and
civil practice. No holdings of the Boards of Review of the Department of
the Air Force have been found dealing with this precise question, but
several holdings of the Boards of Review of the Department of the Army
were found wherein the matter has been particularly dealt with.
Reference has also been made to authoritative texts dealing with the civil
law on the subject. The test of materiality is expressed in CM 330299,
Fickas, 78 BR 363, 365, 366, wherein the Board said:
. . . .Sufficient evidence must appear in the record of
trial to show that the expected testimony of the witness would
be of material advantage to accused. . . . [Citing several
previous quotations of Boards of Review.]
This seems to be in harmony with the language found in Section
23. Volume 12. American Jurisprudence, in which it is said in
connection with requirements of expected testimony of absent witnesses
to support a motion for continuance, . . . It must be credible and there
must be a probability that it will affect the result; . . .
Unless, therefore, the expected testimony of General Hutchinson
would have indeed furnished an essential connecting link in the chain of
evidence necessary to establish the constructive condonation claimed by
the defense, we must conclude that it would not have been of material
advantage to the accused to have obtained it. There remains to be
considered, therefore, the question of whether all the necessary elements
of a constructive condonation would have been established by the
defense had the facts relied upon by the defense been proved.
Constructive condonation has been considered by Boards of
Review of the Department of the Army in situations somewhat similar to

that in the present case, i.e., where there was no showing that the
authority competent to appoint a general court-marital restored the
accused to duty with full knowledge of the facts concerning the alleged
desertion. (CM 298568, Schultz, 24 BR ETO 127, 133; CM 299988,
Pagano, 31 BR ETO 121, 130; CM 280227, Stirewalt, 58 BR 115, 119121; CM 316767, Jones, 66 BR 29, 31; CM 882151, Missik, 3 BR
181
UNITED STATES V. MASON
(ACM 2289)
-JC 243, 272). It does not appear that the matter of restoration and
condonation has heretofore been the subject of an opinion by any Board
of Review of the Department of the Air force, either generally, or upon
the precisely defined question of whether such restoration with
constructive knowledge of the competent appointing authority can
successfully be pleaded in bar of trial for the offense of desertion.
Initially, the Board deems appropriate the following language from the
Missik opinion, supra, at page 272:
The defense of constructive condonation, although
long recognized in military law, is a defense only to the
single offense of desertion. . . . [Citing cases.] When
interposed as a special plea in bar of trial, it must be
supported by the accused by a preponderance of the proof
(par 64a. MCM 1928, p-51) (Italics added).
The language of the Board of Review in the Missik opinion stating
that the burden of supporting a special motion of this kind is upon the
defense and citing paragraph 64a of the 1928 Manual for Courts-Martial
as authority therefor has been considered pertinent as the 1949 Manual
for Courts-Martial includes language similar to that contained in the
cited paragraph in the 1928 Manual (par 64e). The Missik case, at page
272, while stating the general rule that: . . . it must appear that accused

. . . was unconditionally restored to duty by an authority competent to

order his trial by general court-martial who was chargeable with or who
actually had full knowledge of the facts and circumstances of the
absence. . . , expressly withheld ruling authoritatively on the question
of whether in that case the restoration to duty was accomplished by such
competent authority. The Board has, accordingly, turned to the
examination of the other cited cases to determine, if possible, the limits
to which this defense would be available if the competent authority did
not personally act and where it was not shown that he had actual
knowledge of all the facts and circumstances. In the Pagano case, supra,
it appeared that the accused after his return from an alleged period of
desertion talked with the staff judge advocate of the Ninth Infantry
Division and that the conversation which ensued, according to him, was:
A. Colonel Gentry said that I had two choices: Either I
return to the Stockade and awaited trial or go back to my unit
on the line on duty.
Q. What did you decide to do? What was your choice?
A. I returned to my organization for duty on the line. [R.
20]
The proof showed, as the Board observed, that the accused did in
fact return to his organization and did perform combat duty therewith
from 25 February 1945 until 1 May 1945 when he was placed in the
stockade to await trial for this alleged desertion. However, as the record
showed, the only proof that the restoration was unconditioned consisted
of the uncorroborated testimony of the accused. Proceeding upon this the
Board then said, at pages 130 and 131:
. . . For the purpose of this holding, the Board of
Review will assume, without deciding, that an unconditional
restoration to duty without trial by the Staff Judge Advocate

of the authority competent to order trial, may successfully be

pleaded in bar of trial for the desertion, as constructive
condonation by that authority.
The full purport of the conversation between the Staff
Judge Advocate and accused, assuming there was one, and
any evidence bearing upon the authority of that officer to act
for the division commander in the premises, should have
been presented by the defense if it intended to establish
constructive condonation. Upon the a state of the record, one
cannot say that the defense was established or that the court
was bound to believe accuseds uncorroborated testimony
with respect thereto or that it constituted a discharge of the
defenses burden of supporting the plea, which the Board will
assume to have been entered. . . .
182
BOARD OF REVIEW
(ACM 2289)
A somewhat similar situation involving the action of a subordinate of the
competent authority was found in the Schultz case, supra. There the
offender returned to his company commander who, believing the story of
the accused as to the reason for his absence sent the accused and the
company executive officer to the staff judge advocateS office where a
warrant officer referred them to the assistant adjutant general of the
division. This latter officer recommended [to the company commander]
that no Charges be preferred and that the accused be picked up on the
morning report as returned to duty from missing in action. The
recommendation was followed. The Board then said, at pages 132 and
133:
. . . the question becomes whether his restoration to
duty was accomplished by an authority competent to order

trial or, more specifically, whether the commanding general

was bound by the action taken by his assistant adjutant
general in recommending the action here taken. . . . In the
instant case it appears . . . that neither the commanding
general nor his staff judge advocate had knowledge of the
action taken. Without attempting to set forth the exact
procedure necessary, it is concluded that the action here taken
was not such as to constitute an unconditional restoration to
duty by an authority competent to order trial and hence did
not amount to constructive condonation of accuseds
offense . . . .
In the Jones case, supra, the restoration was accomplished by the
regimental commander, and the Board of Review in holding that
constructive condonation was not established said:
. . . only the authority competent to order trial, in this case
the division commander, has the power to condone an
offense. Since accused was assigned to duty in the regimental
S-2 office by his regimental commander, no condonation was
effected . . . [citing cases].
The Board considers that the Schultz, Pagano, and Jones cases,
supra, harmoniously indicate that the mere act of a subordinate in
effecting a release and restoration cannot be considered as the act of the
authority competent to appoint a general court-martial in the absence of
some showing that such subordinate was specially or generally
authorized to so act for the appointing authority. The principle
announced by The Judge Advocate General of the Army in his
indorsement to the opinion of the Board of Review in the Stirewalt case,
supra, (p 128) regarding constructive condonation appears to the Board
to be particularly applicable to any showing of a delegation of authority
by the appointing authority. His statement of principle was:

. . . Condonation of crime which becomes a legal bar

to punishment therefore should be sanctioned only upon the
clearest authority. . . .
The language of the foregoing opinions suggests that a commander
who exercises general court-martial authority need not personally do all
the acts required to accomplish a condonation of an offense by the
unconditional restoration of the offender to duty, but that such
condonation may be accomplished by a subordinate officer to whom the
commander by either expressly or impliedly delegated either special or
general authority to act in his name on such matters. The question of
whether a condonation may be accomplished by a subordinate officer
under such conditions, as distinguished from the mere carrying out of the
expressed wishes of the commander in a particular case, is not presented
in the case. This Board does not decide that question herein. It is clear,
however, from the above cases, that even if such acts of a subordinate
done under a delegation of authority are legally sufficient to accomplish
condonation, the accuseds burden of showing the requisite knowledge
and intent on the part of such officer would be no less than where it is
claimed that the commander himself ordered the restoration. This Board
so holds.
The evidence which the defense actually produced plus that which
it sought to produce would have established only that the accused was
released from con183
UNITED STATES v. MASON
(ACM 2289)
finement and placed on a duty status on 10 February 1949, which event
was reported by Captain Julious C. Griffin, Commander of the Air
Police Squadron at MacDill Air Force Base, and that General
Hutchinson, who then exercised general court-martial jurisdiction at that

time and place, had constructive knowledge that the accused was
released from confinement at that time without restriction. Such facts, if
proved, would fail to show that the officer exercising general courtmartial jurisdiction, either personally or through an authorized
subordinate, ordered the accuseds release from confinement and
restoration to duty with the requisite knowledge of the offense
commuted by the accused and intent that the accused not be tried
therefor. From the foregoing discussion, it is seen that these latter
elements are indispensable to make out a constructive condonation. The
Board concludes that the facts relied upon by the defense in this case
were substantially incomplete, even after full inquiry by the Court and
ample discussion and elaboration by the defense counsel. The ultimate
purpose of securing the testimony sought by the defense at this time was
to supply the basis for its motion to dismiss on the grounds of
constructive condonation. Such evidence would not have been sufficient
to support the defenses burden of establishing the preponderance of
proof which would be required to support a motion to dismiss on such
grounds. We conclude, therefore, that the motion for continuance was
properly denied under the circumstances.
The defense made a further motion for dismissal of Specification 1
of the Charge on the grounds of condonation based on the claim that the
accused had been promoted from private to private first class [R. 21].
This motion was made at the conclusion of the prosecutions case and
was based upon the fact that Prosecutions Exhibit No. 2 shows accused
as private first class. The defense counsel stated:
. . . He was promoted. We dont know where or when,
but it was after he took off and the offense was committed.
Winthrop says, on page 270: A promotion will operate as a
constructive pardon on such offense.
In fact, all subsequent exhibits of the prosecution show the accused
as Pfc, and he is so charged. However, there is no showing, nor was

there any representation or contention that evidence was available to

show, that the promotion was made by a commander exercising general
court-martial jurisdiction, or that his mind was directed to this particular
offense and was consciously willing that the accused be granted
exception from the consequences of it. The law member, therefore,
properly denied the motion R. 21).
4. Evidence for the prosecution.
As to Specification I of the Charge, the prosecution introduced a
certified true extract copy of a morning report of Squadron O, l06th,
AAF Base Unit, AAF ORD, Greensboro, N. C., dated 8 June 1946, to
show the inception of the absence alleged (Pros. Ex. 2). The extract of
the morning report entry showed:
8 June 1946
X
X
X
Mason William 6 712 867 Pvt
Dy to AWOL 8 Mar 46 (0600)
X
X
X
/s/ John S. Caughman
Major Air Corps
The defense objected to the exhibit on the grounds that the entry
was not made contemporaneously with the event. The document was
admitted into evidence over objections by the defense (R., 12, 13). To
show the termination of this absence, the prosecution offered in evidence
a certified true extract copy of a morning report of Det #8, 1262nd
ASU, First Army, DEML Fort Dix, N. J. dated 29 November 1946
(Pros. Ex. 3). The defense objected to the admission of that portion of
the entry beginning with the word from and ending with the words
New Jersey as hearsay, and not within the official knowledge or duty
of the

184
BOARD OF REVIEW
(ACM 2289)
maker, and because it recited an apparent admission by the accused,
there being no showing that the accused had been advised of his rights
R. 13). The law member sustained the objection in part, and admitted the
entry into evidence with exception OF the words claiming and
AWOL R. 14).
This entry reads, after deletion of these words:
28 November 1946
X
X
X
Mason William RA 6 713 867 Pfc
Race: (W) Atchd unasgd fr AAF ORD
Greensboro NC . . . per par 12 SO
285 Hq 1262 ASU Ft Dix NJ
EDCMR: 28 Nov 46
X
X
X
/s/ Ralph E Wallace
Lt Col CMP
As to Specification 2 of the Charge, the prosecution offered in
evidence a certified true extract copy of a morning report of Det #3
1262nd ASU, First Army, DEML Fort Dix, N. J. dated 9 January 1947,
to show the inception of the absence (Pros. Ex. 4). This entry reads as
follows:

9 Jan 1947
X
X
X
Mason William RA 6 712 867 Pfc
dy to AWOL as of 0600 6 Dec 46

X
X
/s/ Ralph E. Wallace
Lt Col CMP

The defense objected to the exhibit on the grounds that the entry
was not made contemporaneously with the event. This document was
admitted into evidence over the objection of the defense R. 14). Mr.
Albert D. Knight testified that he was a Deputy Sheriff residing at
Tampa, Florida. He arrested the accused at about 4:05 P.M. on 8 January
1949, at Adamsville, Florida. He arrested him on a charge of
intoxication. However, as the accused told him that he was a member of
the United States Air Force, the witness released accused after a period
of eight days to MacDill Field R. 15, 16). The accused told the sheriff
that he was overdue R. 16). The accused was wearing an OD shirt but
no tie or cap R. 11). The prosecution offered in evidence a true extract
copy of a morning report of the Air Police Squadron, 307th Air Base
Group, MacDill Air Force Base, Tampa, Florida, dated 19 January 1949,
to show termination of the absence (Pros. Ex. 5), The defense objected
to the words beginning with the word from and ending with the figure
49 as hearsay not within the required knowledge of the maker, and
further objected to the entire entry as not having been made
contemporaneously with the happening of the event R. 18). The defense
further objected to so much of the heading of the certificate as reads,
Regiment Air Corps Unassigned Panama R. 20). The exhibit was
admitted into evidence, over defenses objection. However, the law
member sustained the objection in part in excluding the words fr
AWOL fr Air Corps Unassigned Panama apprehended by civil auth
Tampa Fla 9 Jan 49 R. 19). The entry, as admitted, reads as follows:

19 January 1949
Mason William AF 6712867 Pfc-6 010
Atchd not jd conf sta gd house . . .
ret to Mil control 14 Jan 49

/s/ Julious C. Griffin

Capt., USAF
Commanding
As to Specification 3 of the Charge, the prosecution introduced in
evidence a true extract copy of the morning report of the Air Police
Squadron, 307th Air Base Group, MacDill Air Force Base, Tampa,
Florida, dated 5 March 1949, to show inception of the absence (Pros. Ex.
5 ) . The defense objected to the words contained in the heading of the
certificate which read, REGIMENT Air Corps Unassigned Panama R.
20). This morning report extract was admitted into evidence over
objection by the defense that the wording is not in accordance with the
standard procedure . . ., because it contained an uninitialled erasure, and
because of the showing in the heading of the certificate that the
accuseds organization was Air Corps Unassigned Panama R. 19. 20),
and reads:
185
UNITED STATES v. MASON
(ACM 2289)
5 March 1949
Mason William AF-6712867 Pfc 6 010
Reference M/R dtd 19 Jan 49 EM reld
fr atchd & dy fr this orgn by reason
of AWOL fr this orgn at 0800 hours
4 Mar 49
/s/ Julious C. Griffin
Capt, USAF
Commanding
The prosecution introduced, for the purpose of showing the
termination of that absence a certified true copy of a morning report
entry of the Post Guardhouse, Aberdeen Proving Ground, Maryland,

dated 26 and 27 May 1949. (Pros. Ex. 6). The defense objected to so
much of the entry of 26 May 1949 as begins with the words from and
ends with the figure 61 as not within the personal knowledge or
required knowledge of the maker. The defense objected to the entry of
27 May 1949 on the ground that it was hearsay and furthermore
irrelevant and immaterial R. 20). The exhibit was admitted in evidence
over the objection of the defense R. 20). The entries read as follows;
26 May 49
Mason William AF 6712867 PFC
Atchd & Conf fr Seymore Johnson
Field Goldsborough NC by order of
1st Lt Walter R. Russell 3208th CML
Ord Test G p APG Md
Violation of AW 61 2330 hrs
/s/ John T. Busse
1st Lt CMP
Prison Officer
27 May 49
Mason William AF 6712867 PFC
Conf to Reld to AF Collecting Point
Bolling Fld Washington DC Return to
AF Control
/s/ John T. Busse
1st Lt CMP
Prison Officer
The prosecution entered another document in this connection,
consisting of a true extract copy of the morning report of Hq & Hq Sq,
1100th Air Base Group, Bolling Air Force Base, Washington, D. C,
dated 1 June 1949 (Pros. Ex. 7). The defense objected to the admission
of that portion of the entry which was shown in parentheses (AWOL fr
unasgd Panama Comd Depot), and to the portion of the heading of the

certificate which shows the accuseds organization to be Panama

Command Depot R. 20). The exhibit was admitted into evidence by the
law member, excluding the word AWOL fr unasgd Panama Comd
Depot (R-20). The entry reads, after the deletion:
1 Jun 49
Mason William AF 6712867 Pfc
Atchd not jd . . . placed in conf post
gd house l500 hrs 27 May 49 pending
disposition in accordance with AR 615300
/s/ Richard E Hyman
RICHARD E. HYMAN
1st Lt., USAF
5. Motions based on the evidence.
At the conclusion of the prosecutions case, the defense moved for
a finding of not guilty as to Specification 1 of the Charge on the grounds
that there is no evidence of his termination as alleged. There is no
evidence other than several months of time that the accused intended to
desert the service and there is no evidence of the physical place that the
accused is alleged to have left at the time R. 22). After some discussion
as to whether the Court could amend the Specification to substitute the
words Fort Dix, New Jersey for the words Wilmington, Delaware R.
22, 23), the Court denied the motion of the defense R. 23). The Court
properly denied the motion (MCM. 1949, par 72a).
The defense made a further motion for a finding of not guilty of
Specification 3 of the Charge on the grounds that:
. . . there is no evidence showing the exact time or
place, in accordance with the specification by the
prosecution; further, that the shortness of the time and the

alleged surrender obviously makes it not desertion. . . . R.

28).
The law members ruling in denying the motion was proper
(MCM, 1949, par 72a, supra).
186
BOARD OF REVIEW
(ACM 2189)
6. Evidence for the defense.
The accused, after having his rights explained to him by the law
member, elected to make an unsworn statement through counsel R. 24).
In this statement, the accused stated tat he had no particular dislike for
the service. However, he never intended and did not then intend to make
a career of the service. On 8 January 1949, when arrested, he was on his
way to MacDill Air Force Base to turn himself in and was in uniform at
the time but had lost his cap. He told the officer at the time that he was
absent without leave and wanted to get back to his unit. He further stated
that he had not turned himself in prior to that time as family difficulties
prevented his doing so R. 24, 25). The defense offered nothing further,
7. Discussion.
As to the offense alleged in Specification 1 of the Charge, the Court
found the accused guilty except of the words Wilmington, Delaware
but guilty of the substituted words Fort Dix, New Jersey. The
substitution of a place of apprehension shown by the proof, in lieu of the
place alleged, is proper (MCM. Par 78c. CM 261111, Kuykendall, 40
BR 141. The law member properly denied accuseds objection to
Prosecutions Exhibits Nos. 2 and 3 on the grounds of hearsay where the
objection was based solely on the fact that the entries were not made
contemporaneously with the happening of the event (ACM 2150,

Virgilio, 2 CMR 435, 438). The inception of the period of unauthorized

absence having been established prima facie by the morning report entry
of the accuseds organization reflected in Prosecutions Exhibit No 2,
the condition of absence without leave may be presumed to have
continued until a change in the condition is shown to have occurred.
. . . Having once been shown to exist, the condition of
absence without leave with respect to an enlistment may be
presumed to have continued, in the absence of evidence to
the contrary, until the return of the accused to military control
under that enlistment. . . (MCM. 1949, par 146a).
The next item of evidence is Prosecutions Exhibit No. 3, which
shows the accused picked up as attached unassigned as of 25
November 1946, on the morning report of another organization. The
wording thereof, after striking the comments as to accuseds status of
absent without leave, leaves nothing which particularly explains the
circumstances of his attachment. Furthermore, the language which refers
thereto, having been stricken, cannot be considered in evidence.
However, we are on notice, as was the Court, that something of the
original makers language was stricken. We cannot, therefore, read the
remaining language of the entry in the same light and as carrying the
same meaning as though there had never been any modifying language
contained therein. In other words, although we are not free to interpret
the remaining language in the light of the particular words which have
been expressly stricken as inadmissible, we must, nevertheless, take
cognizance of the fact that something has been stricken, and that we
cannot properly give literal meaning to all that remains. Nevertheless,
there appears to be nothing in the entry which suggests accuseds
attachment to the reporting organization was by virtue of other
circumstances. We conclude, therefore, that in the absence of other
evidence to the contrary, the accuseds unauthorized absence, which
commenced on or about 8 March 1948, as alleged, continued until
terminated by his return to military control at Fort Dix, New Jersey, on

or about 25 November 1946. There being no evidence that the accused

surrendered himself, as alleged and found, the record of trial will support
only a finding as to the manner of termination of the period of absence
as finds that the accused returned to military control in a manner not
shown. The accuseds long absence without leave not being
satisfactorily explained, the Court may well infer the accused did intend
at the time of absenting himself, or at some time during his absence, not
to return (MCM, 1949, par 146a).
187
UNITED STATES v. MASON
(ACM 2289)
As to Specification 2 of the Charge, the defenses objection to
Prosecution Exhibits Nos. 4 and 5 was based an similar grounds as in the
case of Prosecution Exhibits Nos. 2 and 3, and were properly denied for
the reasons hereinbefore set forth as to those objections. As to that
Specification, the inception of the absence without leave, as alleged, is
established prima facie by Prosecution Exhibit No. 1. In addition to the
showing of accuseds apprehension, he admitted by his unsworn
statement to the Court, presented through his counsel, that when he was
apprehended he was in fact in an absent without leave status. We indulge
in the same presumptions as to the continuation of this absence without
leave until the time of his apprehension and as to his intent not to return
as were set forth in the discussion as to Specification 1. While it was
alleged in Specification 2 that the accused was at the time of the absence
a member of a unit of the First Army at Fort Dix, New Jersey, there is no
evidence that he was still a member of the Department of the Army at
the time of trial. The accused, however, was described in all
Specifications as currently being a member of an organization of the
Department of the Air Force. He was so arraigned, and his identity as
such was thereby established prima facie. There was no issue raised
regarding this fact, either by the accused or by the appearance of any
affirmative fact in the record of trial showing that he was not a member

of that organization (ACM 13, Baggett, 1 CMR 16, 22; ACM 539, Juris
1 CMR 485, 489). There is no evidence that the accused had in fact been
at any time the subject of an interdepartmental transfer. It appears that
the language of Specification 2 should have read then attached to
rather than than a member of, and that the words actually employed
amounted to a harmless misnomer. Assuming, for the sake of argument,
that the accused was in truth a member of an organization of the
Department of the Army at the time of the offense complained of, the
Department of the Air Force would nevertheless have had jurisdiction to
punish the offense at the time of this trial. This was specifically provided
for in Section 4 of Public Law 775. Act of June 25, 1948 (62 Stat 1014
[c 648, 6 USC 627j, 627k, 627i]), and leaves no doubt as to the
jurisdiction of either department to prosecute such offenses.
As to Specification 3 of the Charge, the accuseds absence without
leave during the period alleged is adequately shown by the evidence.
The reviewing authoritys action appropriately disapproved so much of
the finding of guilty as related to the manner of termination of the
absence, in view of the absence of proof of such allegations.
8. The accused was approximately 37 years of age at the time of
trial. He enlisted in the United States Air Force on 9 November 1945,
having had only three months and twenty-two days previous military
service. His initial absence without leave was committed seven months
later and he remained almost continually absent without leave since that
time. There is no evidenced previous convictions.
9. For the foregoing reasons, the Board of Review holds that the
record of trial is legally sufficient to support only so much of the finding
of guilty of Specification 1 of the Charge as finds that the accused did
desert the service of the United States at the time and place alleged and
remained absent in desertion until his return to military control at Fort
Dix, New Jersey, on or about 26 November 1946, in a manner not
shown; legally sufficient to support the findings of guilty of

Specification 2, of Specification 3 as modified by the reviewing

authority, and of the Charge; and legally sufficient to support the
Sentence.
BLACKSTONE (on leave), DRIER, and
CASE, Judge Advocates. 12 May 1950