United States v. Billones

15 C.M.A. 493, 15 USCMA 493, 35 C.M.R. 465, 1965 CMA LEXIS 162, 1965 WL 4710

• Court: United States Court of Military Appeals
• Decided: July 23, 1965
• Docket: No. 18,713
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

Tried by general court-martial and convicted, among other things, of an Additional Charge and specification of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC , the accused was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for ten years, and reduction. Intermediate appellate authorities, reducing the adjudged term of imprisonment to four years, have otherwise affirmed.

Examination of the record reveals that the law officer failed to instruct the court-martial on the elements of the offense alleged in the Additional Charge and specification. Such was prejudicial error. United States v Keith, 1 USCMA 442, 4 CMR 34; United States v Shepard, 1 USCMA 487, 4 CMR 79; United States v Walters, 10 USCMA 598, 28 CMR 164.

The petition for review is granted. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Navy. The board may reassess the sentence on the basis of the remaining findings of guilty or order a rehearing on the Additional Charge and specification and the penalty.