United States v. Gordon

18 C.M.A. 611, 18 USCMA 611, 40 C.M.R. 323, 1969 CMA LEXIS 698, 1969 WL 6107

Opinion

Opinion of the Court

PER CURIAM:

A special court-martial convicted the accused of failing to obey a superior commissioned officer, willful disobedience of a noncommissioned officer, sitting down on post, and violation of a ship’s order by wearing tennis shoes instead of black shoes while standing bow sentry. The court sentenced the accused to confinement at hard labor for six months, reduction to pay grade E-l, and a bad-conduct discharge. All of the offenses except the last were set aside by the supervisory authority; he modified the sentence by reducing the confinement to one month.

On further review, a Navy board of review noted that, under the Table of Maximum Punishments, Manual for Courts-Martial, United States, 1969, section A, paragraph 127c, footnote 5, the maximum punishment for the approved offense did not include a punitive discharge. However, a majority of the board of review concluded that under section B, Manual, supra, it could approve the bad-conduct discharge as additional punishment because the accused had two previous convictions. Member Faw dissented. In his opinion, dismissal of the “three most serious offenses constituted . . . radical surgery” as to the findings of guilty and “the pettiness” ,of the remaining offense presented a fair possibility that the court-martial might not have added a bad-conduct discharge to the sentence on the basis of the accused’s previous misconduct. We agree with those views. United States v Voorhees, 4 USCMA 509, 531, 16 CMR 83; United States v Kowert, 7 USCMA 678, 23 CMR 142.

The decision of the board of review as to the sentence is reversed, and the sentence is set aside. A rehearing thereof may be ordered.