United States v. Cox

17 C.M.A. 294, 17 USCMA 294, 38 C.M.R. 92, 1967 CMA LEXIS 206, 1967 WL 4385

Opinion

Opinion of the Court

Ferguson, Judge:

Tried by special court-martial, the accused was found guilty of three specifications of unauthorized absence, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, and one count of breach of restriction, in violation of Code, supra, Article 134, 10 USC § 934. Evidence of two previous convictions was received. Accused was sentenced to bad-conduct discharge, forfeiture of $67.00 per month for two months, and confinement at hard labor for two months. Intermediate appellate authorities have affirmed.

At the trial, the president did not inform the court members that a bad-conduct discharge was available only as a permissible additional punishment, either because of the previous convictions or the number of offenses tried together. See Manual for Courts-Martial, United States, 1951, paragraph 127c, section B. This was error and, under the circumstances, prejudicial to the substantial rights of the accused. United States v Yocom, 17 USCMA 270, 38 CMR 68; United States v Hutton, 14 USCMA 366, 34 CMR 146.

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 board may reassess the sentence or order a rehearing thereon.

Chief Judge Quinn and Judge Kil-day concur.