United States v. Goodman

12 C.M.A. 25, 12 USCMA 25, 30 C.M.R. 25, 1960 CMA LEXIS 202, 1960 WL 4628

• Court: United States Court of Military Appeals
• Decided: November 18, 1960
• Docket: No. 14,369
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

The question presented by the certificate of The Judge Advocate General, United States Army, is as follows:

“WAS THE BOARD OF REVIEW CORRECT IN HOLDING THAT THE LAW OFFICER ERRED (1) IN REFUSING TO INSTRUCT THE COURT-MARTIAL THAT IT MIGHT ADJUDGE AN UNDESIRABLE DISCHARGE OR A GENERAL DISCHARGE IN LIEU OF A DISHONORABLE OR BAD CONDUCT DISCHARGE AND (2) IN PREVENTING THE TRIAL DEFENSE COUNSEL FROM URGING THE COURT-MARTIAL TO ADJUDGE AN UNDESIRABLE OR GENERAL DISCHARGE?”

The certified inquiry is answered in the negative. United States v Phipps, 12 USCMA 14, 30 CMR 14, decided November 4, 1960. Our answer to the issue before us does not, however, require that the decision of the board of review be reversed. That body, having concluded that it was error to deny the requested instruction and to refuse to permit the trial defense counsel to argue to the court-martial concerning the possibility of adjudging an administrative discharge, sought to remove the prejudice flowing therefrom by reassessment of the sentence. Ultimately, it concluded that the adjudged sentence to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year was appropriate. While we do not believe that harm which solely involves the question of the accused’s punitive separation from the armed forces may be so purged, see United States v Fowle, 7 USCMA 349, 22 CMR 139, and United States v Lackey, 8 USCMA 718, 25 CMR 222, the fact that we find the law officer’s action free from error permits us to affirm the board of review’s final action on the case.

The decision of the board of review is affirmed.