United States v. Campbell

U.S. Navy-Marine Corps Court of Military Review

United States v. Campbell

6 M.J. 809, 1979 CMR LEXIS 792

CourtU.S. Navy-Marine Corps Court of Military Review

DecidedJanuary 19, 1979

DocketNCM 78 1556

StatusPublished

This text of 6 M.J. 809 (United States v. Campbell) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Campbell, 6 M.J. 809, 1979 CMR LEXIS 792 (usnmcmilrev 1979).

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PER CURIAM:

In accordance with his pleas, appellant was found guilty of one period of unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886, and concomitantly breaking restriction in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. On 12 July 1978, the military judge sentenced appellant to be confined at hard labor for 4 months and to be discharged from the naval service with a bad-conduct discharge. On 17 August 1978, the special court-martial convening authority took his action and purported to approve and execute the sentence. Although this action was erroneous, see Article 71(c), Uniform Code of Military Justice, 10 U.S.C. § 871(c), it was timely. See Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). 17 October 1978, the supervisory authority, in his action, rectified the erroneous execution attempt by the convening authority; however, this latter action was not timely. See United States v. Brewer, 1 M.J. 233 (C.M.A.1975).

The Government concedes that the accused was in continuous post-trial confinement from the date of trial until the date of the supervisory authority’s action, a period of 97 days. See United States v. Manalo, 1 M.J. 452 (C.M.A.1976). There is nothing of record which indicates that the Government should be able to displace the heavy burden of proving due diligence so as to overcome the presumption of a denial of a speedy disposition of this case. See Dunlap, supra. No attempt to do so has even been made; the Government merely contends that the appellant has not shown in what way he has been prejudiced by the delay. This he is not required to do. Dunlap and Brewer, both supra. There is but one remedy for such a situation. See Bouler v. United States, 1 M.J. 299 (C.M.A.1976).

Accordingly, the findings of guilty and the sentence are set aside and the charges ordered dismissed.

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PER CURIAM:

In accordance with his pleas, appellant was found guilty of one period of unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886, and concomitantly breaking restriction in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. On 12 July 1978, the military judge sentenced appellant to be confined at hard labor for 4 months and to be discharged from the naval service with a bad-conduct discharge. On 17 August 1978, the special court-martial convening authority took his action and purported to approve and execute the sentence. Although this action was erroneous, see Article 71(c), Uniform Code of Military Justice, 10 U.S.C. § 871(c), it was timely. See Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). 17 October 1978, the supervisory authority, in his action, rectified the erroneous execution attempt by the convening authority; however, this latter action was not timely. See United States v. Brewer, 1 M.J. 233 (C.M.A.1975).

The Government concedes that the accused was in continuous post-trial confinement from the date of trial until the date of the supervisory authority’s action, a period of 97 days. See United States v. Manalo, 1 M.J. 452 (C.M.A.1976). There is nothing of record which indicates that the Government should be able to displace the heavy burden of proving due diligence so as to overcome the presumption of a denial of a speedy disposition of this case. See Dunlap, supra. No attempt to do so has even been made; the Government merely contends that the appellant has not shown in what way he has been prejudiced by the delay. This he is not required to do. Dunlap and Brewer, both supra. There is but one remedy for such a situation. See Bouler v. United States, 1 M.J. 299 (C.M.A.1976).

Accordingly, the findings of guilty and the sentence are set aside and the charges ordered dismissed.

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