Augenblick v. United States

19 C.M.A. 638

Opinion

Tried by general court-martial upon a charge alleging sodomy committed with an enlisted member of the Air Force, petitioner was convicted of lewd acts in violations of Article 134, Uniform Code of Military Justice, 10 USC § 934. A sentence of dismissal was approved below, and this Court denied his Petition for Review on January 11, 1963. A Petition for Reconsideration of that action was denied January 29, 1963. United States v Augenblick, 13 USCMA 706, and 708 (1963).

Petitioner has now filed a “Petition for Writ of Coram Nobis to Correct Constitutional Error”. Reduced to its essentials, the Petition avers: (1) that the offense was not service-connected within the meaning of O’Callahan v Parker, 385 U. S. 258 (1969); and (2) that the crime of which he was convicted is not a lesser included offense under the crime alleged in the specification.

In Mercer v Dillon, 19 USCMA 264, 41 CMR 264 (1970), this Court held that the limitations upon the jurisdiction of courts-martial effected by O’Callahan v Parker, supra, are not applicable to trials con ducted and finalized prior to that decision. Thus, this general court-martial had jurisdiction of the offense charged.

The second facet of accused’s Petition is disposed of by United States v Headspeth, 2 USCMA 635, 10 CMR 133 (1953).

Accordingly, it is, by the Court, this 9th day of March, 1970,

ORDERED:

That said Petition be, and the same is, hereby denied.

Judge Ferguson would order briefs and arguments on the question of:

Whether an offense under Article 134, Uniform Code of Military Justice, may ever be a lesser included offense of a charge under Article 125, of the Code, inasmuch as an added element, to wit: “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces” not present in an offense charged under Article 125, supra, is required for a finding of guilty of a violation of Article 134, supra. See Article 79, Code, supra, and paragraph 158, Manual for Courts-Martial.