United States v. Croney

20 C.M.A. 292, 20 USCMA 292, 43 C.M.R. 132, 1971 CMA LEXIS 761, 1971 WL 12739

• Court: United States Court of Military Appeals
• Decided: January 22, 1971
• Docket: No. 23,616
• Status: Published

Opinion

Opinion of the Court

Darden, Judge:

In accordance with his pleas of guilty, the appellant was convicted by special court-martial of four unauthorized absences and of breaking restriction. He was sentenced to a bad-conduct discharge, confinement at hard labor for four months and fifteen days, forfeiture of $50.00 per month for five months, and reduction to the pay grade of E-l. The convening authority approved the sentence without reduction; however, the supervisory authority approved only a bad-conduct discharge, confinement at hard labor for four months, forfeiture of $50.00 per month during confinement, and reduction in grade. Later a panel of the Court of Military Review set aside the findings and the sentence and authorized a rehearing. The Government then filed a successful motion for reconsideration for a hearing en banc. On September 2, 1970, the Court of Military Review rendered an en banc decision reversing the decision of the panel and affirming the findings and the sentence as approved below. We granted review to consider whether Article 66, Uniform Code of Military Justice, 10 USC § 866, authorized a “rehearing before the Court of Military Review en banc,” following a panel decision in the same case.

This same question was decided in United States v Chilcote, 20 USCMA 283, 43 CMR 123 (1971). We there determined that the “unembellished words of Article 66(a) of the Code do not support authority for en banc reconsideration of a panel decision,” and that the authority contained in this Article was not substantively enlarged by the provisions of Article 66 (f) “which permit the Judge Advocates General to prescribe uniform rules of procedure for proceedings in and before courts of military review.” United States v Chilcote, supra, at page 286.

The en banc decision of the United States Navy Court of Military Review is, therefore, reversed. The record is returned to the Judge Advocate General of the Navy for action not inconsistent with this opinion.

Chief Judge Quinn and Judge Ferguson concur.