United States v. Grcich

10 C.M.A. 495, 10 USCMA 495, 28 C.M.R. 61, 1959 CMA LEXIS 276

• Court: United States Court of Military Appeals
• Decided: June 26, 1959
• Status: Published

Opinions

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

A board of review set aside the sentence imposed upon the accused by a special court-martial on the ground that a “unanimous clemency recommendation” by the members of the court was “in conflict with the sentence as actually adjudged.” The Judge Advocate General of the Navy certified the case to this court to review the correctness of the board of review’s decision.¹

At trial, the accused entered a plea of guilty to two specifications alleging unauthorized absence in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. He was found guilty as charged. During the sentence procedure, the accused made an un-sworn statement reviewing the financial and health problems of his family. Defense counsel read excerpts from matters introduced in mitigation in the accused’s previous trials. These were supplemented by a further statement by defense counsel. After deliberating in closed session, the court opened and the president announced that the court had sentenced the accused to a bad-conduct discharge and confinement at hard labor for six months. He concluded his statement as follows:

“The court, however, in view of your youth and your apparent family difficulties, your GOT, and your educational background, recommends clemency from the viewpoint that you be considered for an administrative type of discharge in lieu of a bad conduct discharge.”

Apparently after trial, the three members of the court signed an undated document recommending that the sentence be set aside and that “an administrative discharge be considered.” When the record of trial was reviewed by the supervisory authority, the staff legal officer commented on the court’s action. He said: “It appears an anomaly that the court would sentence the accused to a punishment and then recommend that the sentence be set aside.” Carefully reviewing the circumstances, he concluded, and recommended to the supervisory authority, that the adjudged sentence and the court’s clemency recommendation were “not irreconcilable.” On the other hand, a Navy West Coast board of review composed of Members Moloney, Hendry and Cappelmann unanimously reached an opposite conclusion.

The matter is not one of easy solution. Indeed, it is not unusual in a case of this kind to have a difference of opinion on whether there is a conflict between the sentence and the recommendation. See United States v Kaylor, 10 USCMA 139, 27 CMR 213; United States v Story, 10 USCMA 145, 27 CMR 219; see also, United States v Doherty, 5 USCMA 287, 17 CMR 287. In the Kaylor case the court contemporaneously with its sentence recommended remission of the punitive discharge; in Story, the president directed counsel to prepare a “clemency appeal” which, as signed by a majority of the court members, recommended that the discharge adjudged by the court be disapproved.

Here, the court recommended that an administrative discharge be substituted for the bad-conduct discharge. In essence, the recommendation was tantamount to a request that the adjudged punitive discharge be remitted. The situation therefore is substantially like that in Kaylor and Story. Accordingly, we answer the certified question-in the affirmative and affirm the decision of the board of review.

Judge FERGUSON concurs.

1 The certified question is as follows : “Was the Board of Review correct in deciding that the clemency recommendation of the court impeached, or otherwise rendered inconsistent, its sentence verdict?”