United States v. Coleman

20 M.J. 658, 1985 CMR LEXIS 3798

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 15, 1985
• Docket: NMCM 85 0803
• Status: Published

Opinions

PER CURIAM:

The accused was found guilty of unauthorized absence from 3 April 1978 to 11 September 1984 in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. The military judge sentenced the accused to be fined $750.00, to be reduced to pay grade E-l, and to be discharged from the Naval Service with a bad conduct discharge. He recommended, however, that the convening authority consider suspension of both the bad conduct discharge and the reduction in rate below pay grade E-5 for the remainder of the accused’s enlistment. (R. 53.)

The convening authority approved the sentence as adjudged, presumably without knowledge of the clemency recommendation by the military judge. The convening authority’s action is silent on the matter and the staff judge advocate had erroneously advised him that there was no such clemency recommendation.

Accordingly, the convening authority’s action is set aside, and the record of trial is returned to the Judge Advocate General of the Navy to be remanded for a new staff judge advocate’s recommendation and convening authority’s action.

It is noted that trial defense counsel failed to comment on the misadvice in the staff judge advocate’s recommendation to the convening authority, although timely served with a copy thereof in accordance with R.C.M. 1106, Manual for Courts-Martial, 1984.