United States v. Fjermestad

17 C.M.A. 480, 17 USCMA 480, 38 C.M.R. 278, 1968 CMA LEXIS 285, 1968 WL 5393

• Court: United States Court of Military Appeals
• Decided: April 12, 1968
• Docket: No. 20,393
• Status: Published

Opinion

Opinion of the Court

Per Curiam :

This case was before us previously, and we reversed, returning the record to the board of review for reassessment of the sentence in light of the instructional ei;ror pertaining to the punishment. See United States v Fjermestad, 17 USCMA 287, 38 CMR 85. On reconsideration, thé board which reheard the case included a member who had acted as counsel for the United States in the previous proceedings. The Government concedes error as to this matter and asks that the case be remanded for consideration by a properly constituted board.

While we accept the Government’s concession of error, we believe further appellate consideration of these proceedings to be unwarranted. Accused was tried over a year ago by special court-martial and has long since served his sentence. His case has been twice before the board of review and now twice before this Court. His offenses are minor in nature and, in the exercise of our discretion, we deem it unnecessary to subject Fjermestad to the harassment of additional proceedings. See United States v Sheeks, 16 USCMA 430, 37 CMR 50; United States v Dixon, 17 USCMA 423, 38 CMR 221.

Accordingly, the petition for review is granted. The findings of guilty and the sentence are set aside. The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Navy. The Charge and its specifications are ordered dismissed.