Opinion of the Court
HomeR FERGUSON, Judge:
The single issue before us is whether the statute of limitations had run as to the specifications of Charge III. The accused was charged with, and pleaded guilty to, an unauthorized absence of five days' duration occurring in December 1952, a violation of Article 86, Uniform Code of Military Justice, 10 USC § 886 (Charge I). He was also charged with, pleaded not guilty to, but convicted of, two specifications alleging desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, from the periods of December 13, 1952, to January 23, 1953, and from January 26, 1953, to June 2, 1956, respectively (Charge II). Under Charge III, he was found guilty — despite his plea to the contrary — of two specifications alleging the failure to obey a lawful order to report to his unit, in contravention of Article 92, Uniform Code-of Military Justice, 10 USC § 892. It is these two specifications upon which the issue granted was based. Specification 1 of Charge III alleged that the accused had failed to obey an order "on or about 13 December 1952" and specification 2 alleged another failure to obey "on or about 26 January 1953."
The charge sheet upon which the accused was tried was dated July 3, 1956, and prepared at Camp Pendleton, California, the place of trial. These charges were received by the officer exercising summary court-martial jurisdiction the same day, a date obviously more than two years after the commission of the offenses alleged in the specifications of Charge III. Article 43(c), Uniform Code of Military Justice, 10 USC § 843, provides:
"(e) Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under section 815 of this title (article 15) if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 815 of this title (article 15)."
It is well established in military jurisprudence that whenever it appears the statute of limitations has run against an offense, the court "will bring the matter to the attention of the accused and advise him of his right to assert the statute unless it,otherwise affirmatively appears that the accused is aware of his rights in the premises." Paragraph 68c, Manual for Courts-Martial, United States, 1951. This Manual provision is substantially repeated in paragraphs 537?. and 747i, Manual for Courts-Martial, supra. Service boards of review have consistently applied this well-settled doctrine on numerous occasions and have held it to be reversible error for a law officer to fail to advise an apparently uninformed accused of his right to interpose the statute or to fail to determine if there has been a conscious waiver by him of his right to do so. United States v Snyder, 15 CMR 856; United States v Sparks, 15 CMR 584; United States v Rowland, 14 CMR 649; United States v Berry, 14 CMR 396. When we look to the record in the instant case, we find nothing which suggests that the accused was aware of his rights in the premises and his failure therefore cannot possibly operate as a waiver. Accordingly, we conclude that the law officer erred in failing to advise this uninformed accused of his right to plead the statute in bar of trial and punishment.
One further matter merits consideration. Found among the allied papers in the record of trial- — in addition to the charge sheet dated July 3, 1956 — is another charge sheet bearing the date of November 8, 1954, and prepared at Headquarters, U. S. Marine Corps, Washington, D. C. This earlier charge sheet lists substantially the same offenses as those contained in the charge sheet of July 3, 1956, upon which the accused was tried. The earlier charges were received by an officer exercising summary court-martial jurisdiction on November 10, 1954, a date less than two years after the alleged commission of the offenses found in specifications 1 and 2 of Charge III. We suppose that this earlier charge sheet was drafted and charges subsequently filed for the express purpose of tolling the statute of limitations, as to the specifications of Charge III, against which only a two-year statute of limitations applies.
The redrafted charges were then prepared for the purpose of showing apprehension and termination of the absence alleged in specification 2 of Charge II. From these circumstances the Government argues that the statute of limitations was tolled by the first charge sheet, which became a part of the record and that it is "clearly in-ferable" that both charge sheets were exhibited to the accused by the pretrial investigating officer. It is then contended that the accused, by not questioning the validity of the first charge sheet, is precluded from doing so now. This argument need not detain us for long, for the obvious answer is that the record must affirmatively show that the accused was made aware of his right to assert the statute or that having been aware he consciously waived that right. Here the record is silent as to any indication that the accused was aware of his rights. The charge sheet of July 3, 1956, was the only one before the law officer and the court. Furthermore, we do not presume that the accused waived a substantial right which the record fails to show he even knew of.
The Government calls our attention to, and places great reliance upon, the decision of an Air Force board of review in the case of United States v Detion, 13 CMR 846, as authority for their position. In that case the charge sheet revealed that two of the offenses alleged had occurred more than two years prior to the date the charges were received by the officer exercising summary court-martial jurisdiction. The trial defense counsel moved to dismiss those two offenses on the ground that the statute of limitations had run. The law officer was thereupon presented a second charge sheet by trial counsel, found in the allied papers, which indicated that the charges were originally received by the officer exercising summary court-martial jurisdiction within the period of the statute of limitations. The offenses contained in both charge sheets were exactly the same. The law officer then denied defense's motion. On appeal, the board, in holding that the law officer's ruling was proper, said:
"The concept of trying an accused upon charges preferred after the applicable statute of limitations has run, where such charges are a redraft of charges preferred within the period of the statute of limitations, is not new. Such procedure is reflected in the following provisions of the United States Code pertaining to reindict-ments :
'Whenever an indictment is dismissed for any error, defect or irregularity with respect to the grand jury, or is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned not later than the end of the next succeeding regular term of such court, following the term at which such indictment was found defective or insufficient, during which a grand jury shall be in session which new indictment shall not be barred by any statute of limitations.' June 25, 1948, c. 645, 62 Stat 828."
The Federal statute relied upon by the board in the Detion case is entitled: "Reindictment where de-feet found after period of limitations," and is presently codified as Title 18 USC § 3288. The purpose underlying the promulgation of this statute as interpreted by the Federal courts was "not to extend the period of limitation against persons not indicted, but to prevent the escape of those who have been seasonably indicted, but whose indictment was bad because of some corrigible mistake." United States v Strewl, 99 F 2d 474 (CA 2d Cir)(1938). See also United States v Main, 28 F Supp 550 (DC SD Tex) (1939). Prior to Congressional enactment of this statute in 1934 (originally codified as Title 18 USC § 587), an accused in the Federal courts could escape prosecution where an indictment though seasonably found would not support a conviction and the fault was discovered too late to indict him again. It was to ameliorate this reprehensible situation that Congress enacted the "Reindictment" statute. Of course this statute — regardless of how desirable it may be — is wholly inapplicable in courts-martial practice. We must next determine whether there exists similar statutory authority in the Code or procedural authority in the Manual to permit such corrective "indictment" in the military.
Turning first to the Code, we find no authorization — nor has any been cited to our attention — which would permit such a practice. Referring next to the Manual for Courts-Martial, supra, we find several provisions which bear close scrutiny. Paragraph 32c of the Manual, provides that:
". . . When the preliminary inquiry shows that additional or different offenses have been committed (24&), the immediate commander may prefer appropriate new charges for those offenses which he believes cannot properly be disposed of under Article 15. In such a case, he should consolidate all charges against the accused into one set of charges."
The board of review in the Detion case, supra, cited this Manual provision as authority for the proposition that the "redrafting [of] charges preferred within the prescribed period, was in essence neither unauthorized nor unprecedented." However, we view the above-quoted Manual provision in a different light. Paragraph 32 deals generally with the action to be taken by the commander exercising immediate jurisdiction under Article 15 over an accused member of his command. Subsection c of this paragraph is entitled "Preferring charges" and simply authorizes the preferral of appropriate charges for those offenses which cannot properly be disposed of under Article 15. After preliminary inquiry has been conducted "the immediate commander may prefer appropriate new charges." These new charges are specifically referred to in paragraph 245, Manual for Courts-Martial, supra, as "additional charges" which may relate to "transactions not known at the time or to offenses committed after the original charges were preferred." In the instant case the offenses listed in both charge sheets are the same. The situation presented here was clearly not contemplated by the framers of the Manual in paragraphs 32c or 246.
Further reference to the Manual discloses paragraph 33d which provides for the redraft of charges over the accuser's signature in order to correct obvious error, provided that:
". . . the redraft does not include any person, offense, or matter not fairly included in the charges as preferred. Corrections and redrafts should be initialed by the officer making them. If a change involves the inclusion of any person, offense, or matter not fairly included in the charges as preferred, new charges, consolidating all offenses which are to be charged, should be signed and sworn to by an accuser."
We had occasion to interpret this Manual provision in the case of United States v Brown, 4 USCMA 683, 16 CMR 257. There the original charge alleged a violation of Article 134, Uniform Code of Military Justice, 50 USC § 728, occurring on June 13, 1951. This charge was verified on November 7, 1952, and forwarded on January 22, 1953, to the convening authority who referred it for trial on February 7, 1953. In connection with another case, a further investigation of charges against the accused was ordered and thereafter on March 18,1953, the convening authority directed that the charge sheet be amended to allege the date of the offense to "on or about 1 March 1951" and to charge a violation of the Articles for the Government of the Navy rather than the Uniform Code of Military Justice. Following this amendment, defense counsel entered a plea of the statute of limitations on the theory that a different offense was now alleged, which was barred by the statute since the amended charge necessarily was received by the officer exercising summary court-martial jurisdiction after March 18, 1953. The plea was overruled. We held that the amendment of the specification as to the date of the offense was permissible under paragraph 33d, Manual for Courts-Martial, supra, inasmuch as the altered specification included no person, offense, or matter not fairly included in the original charge. Moreover, the amended specification did not allege the offense to have been committed at a date which would have been barred by the statute of limitations. The instant case, however, is clearly distinguishable from Brown, supra, since here we have an entirely new charge sheet with a different convening authority and accuser rather than merely an amendment to the original charge sheet. Only the charge sheet bearing the date of July 3, 1956, was before the court-martial, and that on its face showed the statute of limitations had run against the two specifications of Charge III. Accordingly, we conclude that authority exists neither in the Code nor the Manual to permit the action taken in the instant case.
It would have been perfectly proper to have brought the accused to trial on the original charge sheet which was seasonably filed with the officer exercising summary court-martial jurisdiction. All that would have been necessary was an amendment to specification 2 of Charge II fixing the termination date of the alleged desertion. The practice of filing charges prior to the statute of limitations running its course is commendable and is to be encouraged. Paragraph 33&, Manual for Courts-Martial, supra. We inferentially approved this practice in our early decision of United States v Nichols, 2 USCMA 27, 6 CMR 27. However, if such charges are later redrafted in a new charge sheet — as distinguished from amended- — -the risk of running the statute of limitations is present. Modern judicial theory looks with favor upon statutes of limitations and they are liberally construed on behalf of an accused in furtherance of their manifest objectives. We conclude, therefore, that the statute of limitations had run as to the specifications of Charge III and that the law officer erred in failing to advise the accused of his right to interpose that defense. In view of the fact that the Government has not been given the opportunity to show — if possible — whether the statute may have been tolled under the provisions of Article 43 (d), Uniform Code of Military Justice, supra, we return the ease to The Judge Advocate General of the Navy for reference to a board of review. In its discretion, the board may order a rehearing as to Charge III, or it may dismiss that charge and reassess the sentence on the basis of the remaining approved findings of guilt.