Opinion
Quinn, Chief Judge:
On November 3, 1964, the accused, who had more than fourteen years of honorable service, absented himself without' authority from his unit at Fort Polk, Louisiana. On February 10, 1967, he surrendered to civilian authorities and was returned to military control at Fort Campbell, Kentucky. In due course, he was charged with desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885, and convicted of that offense by a general court-martial at Fort Campbell.
When the record of trial was reviewed by the board of review, it concluded the Government had not proved that the accused had intended to remain away permanently. It, therefore, affirmed findings of guilty of only the lesser offense of unauthorized absence, in violation of Article 86, Code, supra, 10 USC § 886. The board of review then considered the effect of the statute of limitations and determined that the offense was committed "in time of war," within the meaning of Article 43, Code, supra, 10 USC § 843, and the accused could thus be tried and punished "at any time without limitation." Appellate defense counsel contend this determination is erroneous, and the accused's conviction of the lesser offense is barred by the two-year period of limitation prescribed in subsection (c) of Article 43.
The current military involvement of the United States in Vietnam undoubtedly constitutes a "time of war" in that area, within the meaning of Article 43's suspension of the running of the statute of limitations. United States v Bancroft, 3 USCMA 3, 11 CMR 3; cf. United States v Shell, 7 USCMA 646, 23 CMR 110. The question presented by this appeal is the nature of the military commitment in Vietnam as of November 3, 1964, the date of the commission of the offense of which the accused stands convicted.
Reviewing the history of the military position of the United States in Vietnam, the board of review held that the Southeast Asia or Gulf of Tonkin resolution by Congress on August 10, 1964, constituted "official recognition" that the United States was engaged in an "overt confrontation of arms between opposing powers." On the authority of United States v Ayers, 4 USCMA 220, 227, 15 CMR 220, it also held that Article 43 applied to "unauthorized absences originating within the United States." Appellate defense counsel, however, construe the Gulf of Tonkin resolution not as a determination that the United States is in a state of war, but as a "legal redundancy" reiterating the responsibilities of this country under the Southeast Asia Collective Defense Treaty, 6 UST 81, TIAS 3170, September 8, 1954.
Appellate defense counsel indicate, in their admirable brief, that not every instance in which a military contingent of another power engaged in combat with an American force resulted in a time of war. However, it does not follow, as they contend, that the attack by North Vietnamese forces on the United States destroyers MADDOX and C. TURNER JOY in the Gulf of Tonkin was "an isolated incident" of insufficient proportions to transform the United States military position in Vietnam into a time of war. The United States affirmatively responded to the attack. Appellate defense counsel concede as much. Relying upon Ambassador Adlai Stevenson's statement to the United Nations Security Council explaining the United States decision "to take positive but limited relevant measures" to secure itself against "further aggression" (Senate Report No. 1329, 88th Congress, 2d Session, page 6), they describe the United States response as "defensive"; and they contrast this response with the "offensive" actions taken on and after February .7, 1965, when United States forces were attacked in the Plieku area. In their view, the February 7th attacks are the earliest hostilities sufficient to constitute a time of war. In my opinion, the exact proportions of the Gulf of Tonkin attack are not material. Nor is the nature of the United States response as "defensive" or "offensive" relevant. The very documents relied upon by appellate defense counsel demonstrate that the Executive Branch of the Government regarded the resolution as the keystone of United States relations with North Vietnam. The Department of Defense Annual Report discussing the February 7th attacks described the United States response to North Vietnam's "more aggressive course of action" against United States and South Vietnam installations as a decision to take "additional forceful measures." (Emphasis supplied.) Department of Defense Annual Report, Fiscal Year 1965, at pages 5-7. The report plainly indicates that these attacks by North Vietnam forces enlarged the area and the intensity of the military hostilities, but they did not establish a new jural relationship between North Vietnam and the United States different from that created by the Gulf of Tonkin attack and the United States response. Perhaps the best indication of the interpretation by the Executive Branch of the Gulf of Tonkin resolution is the testimony of Under Secretary of State, Nicholas deB. Eatzenbach, before the Senate Foreign Relations Committee in 1967. He testified that the Administration regarded the resolution as participation by Congress "in the functional way . . . contemplated by the Founding Fathers" to "invoke the . . . war powers." Hearings on S Res 151, relating to United States Commitments to Foreign Powers, Senate Foreign Relations Committee, 90th Congress, 1st Session, at pages 161-162.
The Administration is not always correct in interpreting the will of the Legislature. Appellate defense counsel point out that several members of the Senate have indicated they did not understand the Tonkin Gulf resolution to constitute a declaration of war within the meaning of the Constitution. Hearings, Senate Foreign Relations Committee, supra, at pages 118-132; see also Hearing, Senate Foreign Relations Committee, The Gulf of Tonkin, The 1964 Incidents, 90th Congress, 2d Session, at page 81. These comments may be entitled to respectful consideration, but they do not necessarily indicate the purpose or intent of Congress in enacting the resolution as a statement of the political relationship between the United States and North Vietnam. See United States v Wise, 370 US 405, 411, 8 L Ed 2d 590, 82 S Ct 1354 (1962).
The resolution is clearly more than a reminder of the existence of obligations under treaties relating to Southeast Asia. It describes the attack on United States Naval Forces in Tonkin Gulf as a violation of international law, and it specifically commits the United States "to take all necessary steps," including the use of armed force, to repel aggression and to assure peace in Southeast Asia. It contemplates use of the armed forces for an uncertain period of time. Thus, it directs that its provisions remain in force until either the President declares that "the peace and security of the area" are assured, or Congress terminates them earlier by "concurrent resolution." The language of the resolution clearly indicates that Congress also recognized and declared, as a legislative decision, that the Gulf of Ton-kin attack precipitated a state of armed conflict between the United States and North Vietnam. Cf. dissenting opinion of Chief Judge Quinn in United States v Ayers, supra; see Hirabayashi v United States, 320 US 81, 93, 87 L Ed 1774, 63 S Ct 1375 (1943).
When a state of hostilities is expressly recognized by both Congress and the President, it is incumbent upon the judiciary to accept the consequences that attach to such recognition. See Bas v Tingy, 4 Dallas 37, 40 (US 1800). I conclude, therefore, that at the time of the accused's unauthorized absence the United States was "in time of war," within the meaning of Article 43 of the Uniform Code. Thus, the board of review correctly determined that the statute of limitations had not run against the offense.
The decision of the board of review is affirmed.
In pertinent part, Article 43, Uniform Code of Military Justice, 10 USC § 843, provides as follows:
"(a) A person charged with desertion or absence without leave in time of war, or with aiding the enemy, mutiny, or murder, may be tried and punished at any time without limitation.
"(b) Except as otherwise provided in this article, a person charged with desertion in time of peace . is not liable to be tried by court-martial if the offense was committed more than three years . before . . . [receipt of sworn charges by an appropriate officer] .
. "(c) Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial . . . if the offense was committed more than two years before . . . [receipt of sworn charges by an appropriate officer]."
Joint Resolution to promote the maintenance of international peace and security in Southeast Asia. Public Law 88-408, 88th Congress, 2d Session, 78 Stat 384, August 10, 1964.