United States v. Bailey

9 C.M.A. 59, 9 USCMA 59, 25 C.M.R. 321, 1958 CMA LEXIS 650, 1958 WL 3156

• Court: United States Court of Military Appeals
• Decided: March 21, 1958
• Docket: No. 11,132
• Status: Published

Opinion

Opinion of the Court

PER CURIAM :

In reviewing the accused’s conviction by general court-martial of three offenses under the Uniform Code, the staff legal officer noted that service record entries introduced into evidence by the prosecution “tended to prove” the offenses. He did not otherwise evaluate the adequacy and the weight of the evidence relating to these offenses, or refer to the third offense. Manual for Courts-Martial, United States, 1951, paragraph 85b. This was error. United States v Withrow, 8 USCMA 728, 25 CMR 232. However, we note that the accused pleaded guilty to one of the two charges, and, in his defense to the charge of desertion, introduced evidence which admits the unauthorized absence which constituted the basis of the conviction of the offenses in violation of Article 86. Consequently, as to these other charges, the accused could not have been prejudiced by inadequate review. United States v Flemings, 8 USCMA 729, 25 CMR 233. The board of review can cure the error in respect to the third charge by appropriate action. United States v Flemings, supra. Accordingly, the record of trial is returned to The Judge Advocate General of the Navy for reference to a board of review for proceedings consistent with this opinion.