NYC soldier jailed for attempt to avoid Iraq

A U.S. serviceman from the Bronx will spend a year in jail after he admitted in court that he arranged to have himself shot in the knee to avoid having to return to Iraq for a second tour of duty, Bronx prosecutors said Tuesday. Jonathan Aponte, 20, pleaded guilty to third-degree falsely reporting an incident, a misdemeanor. In exchange for his guilty plea, State Supreme Court Justice John Byrne agreed to sentence Aponte to a year in jail on Oct. 17. Aponte's Legal Aid attorney could not be reached for comment Tuesday. Aponte originally claimed he had been shot in the knee during a robbery. But prosecutors said, in reality, Aponte and his wife, Alexandra Gonzalez, 23, paid their friend Felix Padilla, 24, $500 to shoot him.

OK,.. that takes care of the Civilian matter of filing a false report.

Now for the Military matter:

Under the UCMJ

ART. 87. MISSING MOVEMENT
Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.

ART. 90. ASSAULTING OR WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER.
Any person subject to this chapter who—
(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his officer; or
(2) willfully disobeys a lawful command of his superior commissioned officer;
shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.

ART. 92. FAILURE TO OBEY ORDER OR REGULATION
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.

ART 115. MALINGERING
Any person subject to this chapter who for the purpose of avoiding work, duty, or service—
(1) feigns illness, physical disablement, mental lapse or derangement; or
(2) intentionally inflects self-injury;
shall be punished as a court-martial may direct.

if the offense is committed in time of war, by death or such other punishment as a court-martial may direct,...

The problem being that we're not at war. The two invasions in the Middle East are only police actions and are now generally an occupation facing counter-insurgency. This provision might apply during a presidentially-directed emergency mobilization. But once Congress has had a chance to declare war and declined to do so, these provisions no longer have effect.

So this provision, along with thousands of others in the law and the UCMJ, cannot apply.

There are many other provisions of the law for civilians and for enemy sympathizers and saboteurs and spies and subversive organizations and the press which our president and Congress decided to forego when they declined to declare war congressionally. And for what? Because the U.N. would turn up its nose that some country was so nationalistic as to formally declare a war?

None of those wise provisions in the law under the headings of "in time of war" can be brought to bear in support of our current efforts. Even the provisions and limited protections of the Geneva Convention are weaker as a result.

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