United States v. Garcia

23 C.M.A. 479, 1 M.J. 77, 50 C.M.R. 498, 23 USCMA 479, 1975 CMA LEXIS 747

Opinion

OPINION OF THE COURT

Per Curiam:

Upon conviction by a special court-martial for an unauthorized absence and forgery in violation of Articles 86 and 123, Uniform Code of Military Justice, 10 USC §§ 886 and 923, the appellant was sentenced by the military judge hearing the case to a bad-conduct discharge and confinement at hard labor for 4 months. In his review of the case at the supervisory authority level, the staff judge advocate erroneously stated that the appellant was convicted of the unauthorized absence upon his plea of guilty. Because the appellant had actually pleaded not guilty to that offense, such erroneous advice constitutes prejudicial error. United States v McIlveen, 23 USCMA 357, 49 CMR 761 (1975).

The decision of the US Air Force Court of Military Review is reversed. The case is returned to the Judge Advocate General of the Air Force for submission to the Court of Military Review, which may set aside the findings of guilty on that specification and reassess the sentence or order a new review and action.