United States v. Ballard

16 C.M.A. 483, 16 USCMA 483, 37 C.M.R. 103, 1967 CMA LEXIS 369, 1967 WL 4193

• Court: United States Court of Military Appeals
• Decided: January 20, 1967
• Docket: No. 19,859
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

The accused’s conviction of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, led to a sentence of bad-conduct discharge, forfeiture of $65.00 per month for six months, and confinement at hard labor for a like period. As a result of action by the board of review, he stands before this Court with a penalty of confinement at hard labor for six months and forfeiture of $62.00 per month for six months, it having disapproved the punitive discharge.

Our review of the record discloses a number of errors in connection with revision proceedings previously held in the case in an attempt to correct errors in the presentencing proceedings. See United States v Yerger, 1 USCMA 288, 3 CMR 22. The board of review also found such errors to exist and held the revision proceedings a nullity. It nevertheless purported to affirm a portion of the-sentence. As such proceedings, however, were a nullity, no basis for affirmance existed. Hence, the sentence must be disapproved.

In light of the fact that the accused has long since served those portions of the sentence made effective against him and the relatively insignificant length of the unauthorized absence with which he is charged, we deem it unnecessary to require him to undergo a rehearing in this case. See United States v Sheeks, 16 USCMA 430, 37 CMR 50.

The petition for review is granted and the decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. The charge is ordered dismissed,