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Lawyer: Marines inclined to defer to civilian court

When Corps gets Hering depends on Boulder's action

By David Montero, Rocky Mountain News (Contact)

Published November 17, 2008 at 1:46 p.m.
Updated November 17, 2008 at 11:57 p.m.

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Lloyd Hering, right, father of Lance Hering, is hugged Monday by a woman who declined to be identified at the Clallam County Superior Court in Port Angeles, Wash. At left is a man who also declined to identify himself but was associated with Lloyd Hering.

Photo by Chris Tucker / Peninsula Daily News

Lloyd Hering, right, father of Lance Hering, is hugged Monday by a woman who declined to be identified at the Clallam County Superior Court in Port Angeles, Wash. At left is a man who also declined to identify himself but was associated with Lloyd Hering.

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CORRECTION: A box with an earlier version of this story explaining the difference between being a deserter and being AWOL from the U.S. Armed Forces should have referenced the Uniform Code of Military Justice.

Lance Cpl. Lance Hering decided more than two years ago he didn't want the Marines, but now that he's been arrested in Washington state, the Marines certainly want him.

When they will get Hering to face desertion charges largely is dependent on what the Boulder County district attorney wants to do with the 23-year-old, who is facing criminal charges there, too.

Philip Cave, a Virginia-based military defense attorney with 28 years' experience in cases like Hering's, said the Marines tend to defer to civilian court in cases like this - especially when felony charges are involved.

He also said cases like this tend to be "slam dunks" for the Marines.

"Unless you've got some serious, serious mental issues, these are very easy to prosecute," Cave said. "It's done with a few pieces of paper, and it maybe will take a month."

First Lt. Curtis Williamson, a spokesman for the Marine base at Camp Pendleton, Calif., where Hering had been assigned before disappearing, said if the Marine Corps gets him first, it will likely send two "chasers" - the Marines' version of military police - to take him to the closest Marine base.

But Williamson said there are a few steps in the process.

The Marine Corps requires that a Marine facing desertion charges be attached to a nondeployable administrative unit so the process of a court-martial can begin. That means that Hering, if taken to Camp Pendleton, could not rejoin his old unit - the First Marine Division - since it is deployable to fight.

In addition, the closest Marine base to Boulder is 29 Palms, also in California, but Williamson said it still could be decided to return Hering to Camp Pendleton.

If a Marine is missing for less than 30 days, it's considered an unauthorized leave, Williamson said. Because Hering was gone for longer than that, it's considered desertion.

"Desertion is far more serious," Williamson said. "Though I just want to put it out there that we don't shoot deserters."

The death penalty is a possible penalty only during a time of war declared by Congress, which has not occurred for the conflicts in Iraq or Afghanistan.

The last time the death penalty was in effect for desertion was during World War II.

Hering had served seven months in Iraq and was supposed to deploy again before he staged his disappearance in 2006.

Cave said that could be an aggravating circumstance that might tack on extra time in prison - though the maximum time that Hering could serve would be five years.

Marines desertions are not uncommon and the numbers have been fairly steady over much of the past decade.

It peaked in 2002, with 1,721 desertions, while 2004 saw the lowest total, 744, according to U.S. Marine Capt. Amy Malugani.

There are enough desertions that several Web sites and blogs have popped up seeking to aid those who have left the service illegally.

Charles Elliston, who works with the Boulder chapter of Veterans for Peace, said he was involved in the original search for Hering in 2006, when hundreds swarmed Eldorado Canyon looking for him after his friend, Steve Powers, reported that Hering had gone missing after a fall while the two were rock climbing.

Elliston said at the time that the evidence didn't seem to match the story. He said he doesn't harbor any ill will toward Hering, though he said he would never suggest that anyone should desert.

"I understand when a young man feels he is in an untenable situation," Elliston said. "His situation in his mind was untenable, and he didn't see any other option.

"I would probably have suggested he search for other options, but maybe he didn't know where to look. I don't know, but there are resources out there."

Iraq Veterans Against the War said in a statement Monday night that it "fully supports Lance Hering and his family."

"For a service member to refuse to return to his unit in Iraq, it should not be looked down upon as an act of desertion or cowardice," said Joseph Potts of the Denver chapter.

Fleeing the Corps

Marine deserters since 2000

* 2000 / 1,070

* 2001 / 1,484

* 2002 / 1,721

* 2004 / 744

* 2005 / 1,173

* 2006 / 1,084

* 2007 / 1,079

Difference between deserter and AWOL

The distinction between being a deserter and being AWOL is set out in the Uniform Code of Military Justice. The distinction between the two is an intent to remain away permanently, which is presumed for personnel absent more than 30 days.

* Article 85 of the UCMJ defines a deserter as any member of the armed forces who:

1 Without authority goes or remains absent from his unit, organization or place of duty with intent to remain away therefrom permanently.

2 Quits his unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service.

3 Without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated or enters any foreign armed service except when authorized by the United States.

Note: The maximum punishment for desertion during time of war is death. Because Congress has not declared war in Iraq or Afghanistan, this is not considered a time of war.

* Article 86 of the UCMJ defines AWOL (Absent Without Leave) as any member of the armed forces who:

1 fails to go to his appointed place of duty at the time prescribed

2 goes from that place, or

3 absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed.

Comments

  • November 17, 2008

    2:25 p.m.

    Suggest removal

    Michael writes:

    I would guess the USMC gets first crack. Desertion is a federal offense and unless some left-wing loon group gets the ACLU or some other attorney (Lane??) involved to try to turn this into a 1st Amendment or pascifist plea, I see Boulder County deferring to the USMC.

  • November 17, 2008

    2:25 p.m.

    Suggest removal

    Lisal writes:

    If he doesn't want to protect the United States Of America, get the heck out and go to another country because we don't need any more of that kind here. As the saying goes, "Love it or leave it"!!! So bye-bye to him.

  • November 17, 2008

    2:30 p.m.

    Suggest removal

    Outlaw writes:

    I would not bet on the Marines getting first crack. We are talking about Boulder here.

    They will fly a suspect first class from Thailand on a whim. Remember the creep who said he killed Jon Benet?

    They might spend millions fighting the Marines on the same solid logic.

  • November 17, 2008

    2:58 p.m.

    Suggest removal

    History writes:

    I am against this war and do not want to see another person die in it, on either side. With that said I think this kid should be prosecuted to the fullest extent of the law. If this kid wanted to refuse to fulfill his service requirements then I respect that as an act of civil disobediance, but as an act of civil disobediance he should have stood up and accepted his punishment. That is the point of civil disobediance, if you beleive something to be unjust, then resist it, but accept your punishment, in the case of Ghandi or MLK martyr yourself if need be

  • November 17, 2008

    3:03 p.m.

    Suggest removal

    johnson writes:

    I guess it would be Leavenworth. Or, because we are at war, a firing squad.

  • November 17, 2008

    3:18 p.m.

    Suggest removal

    kris writes:

    There are ways to get out of the Military. Very bad decision he made. Even worse that his Father knew about it.

  • November 17, 2008

    4:15 p.m.

    Suggest removal

    Scott writes:

    Yea many years ago the service (pick one) would just give you a dishonorable discharge if there were civilian charges against you. They didn't want to have to mess around with a worm if the civilians were going to lock him up. Of course with that dweeb DA in Boulder, the Jarheads had better wait and see if this worm even gets prosecuted!

    Regarding the "chasers". Yup, saw about six of them at LAX back in the late 70s "escorting" three Waste of Human Genetic Material to Fort Leavenworth. The "chasers" had had their sense of humor surgically removed at the Balboa Naval Hospital ;-) Waiting just inside of the jetway at the Kansas City airport were a couple of army sergeants that appeared to have had their sense of humor removed at Walter Reed ;-)

    Scott

  • November 21, 2008

    4:46 a.m.

    Suggest removal

    CosmicSurfer writes:

    Well aren't we so pious; aren't we so fine...all so great and heroic...all so patriotic wrapped up in a bloody American Flag...All so sure of ourselves...all without SIN!
    All you seem to know this man so well..ALL KNOW that his life on the run so sweet and his mind of an evil coward so easy.
    All you with no sin!
    All so great and couragious....YOU KNOW NOTHING of the truth. As stated more eloquently before, YOU CAN'T HANDLE the TRUTH.
    Lance Cpl. Hering. A Man with no support except from those who KNOW him and KNOW the horrors he has witnessed; the horrors within and without. YOU KNOW NOTHING of the death and destruction wrought by your government. WHITE PHOSPHORUS USED on civilians 60,000 in Fallujah; some say more.
    YOU KNOW NOTHING of the rapes and assaults on American personnel by their own brothers in arms; you know nothing of the blood and the gore left in the desert by the bombs and the missiles and the bullets of SHOCK AND AWE.
    YOU who are so pious, so patriotic wrapped in your bloody American flag.
    LANCE CORPORAL HERING is a hero. He walked out. HE WALKED OUT! To save millions and to save YOUR hideous black souls.
    YOU who judge.
    REMEMBER you who judge with no answers; no knowlege. The man who has his life threatened by those you don't even know. Those you consider heroes. Those who you would wrap up with that bloody body bag and honor as heroes.
    LANCE CORPORAL HERING CHOOSES LIFE and LOVE and to be the honorable one here. YOU WHO WOULD JUDGE a man you don't even know. You have heard his name thrice in a conservative Bush tinged lie.
    YOU WHO WOULD JUDGE what is in a man's soul who know nothing.

    It wasn't I who warned so long ago....HE WHO IS WITHOUT SIN....LET HIM CAST THE FIRST STONE