United States v. Boyd

23 C.M.A. 90

Opinion

OPINION OF THE COURT

Ferguson, Senior Judge:

In his post-trial review, the staff judge advocate erroneously advised the convening authority that the accused had been convicted of assault with intent to commit murder rather than assault whereby grievous bodily harm was intentionally inflicted, the latter offense being that of which the accused was convicted.

A review that is misleading on an important point is unacceptable. United States v Samuels, 22 USCMA 238, 46 CMR 238 (1973); United States v Cruse, 21 USCMA 286, 45 CMR 60 (1972). Here, the convening authority was advised that the accused had been convicted of a much more serious offense than was actually the fact. Based on the offense’s serious nature, the staff judge advocate recommended approval of the sentence despite the suggestion of the military judge that the adjudged punitive discharge be suspended. As there was more than a fair risk the convening authority was misled by this mischaracterization of the accused’s crime, prejudice is apparent and a new review and action is required.

The decision of the U. S. Army Court of Military Review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A new review and action by the convening authority is hereby ordered.

Chief Judge Duncan and Judge Quinn concur.