United States v. Guerrero

10 M.J. 52, 1980 CMA LEXIS 9775

• Court: United States Court of Military Appeals
• Decided: November 24, 1980
• Docket: No. 38835/AR; CMR No. 14157/S
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

On this appeal, the appellant asserts that prosecution exhibit 3 was improperly admitted into evidence during the presentencing portion of his court-martial. One of the reasons for his contention is that a judge advocate did not complete block 10 in the appellate action section of the form, as is required by Article 15(e), Uniform Code of Military Justice, 10 U.S.C. § 815(e). Under this provision “the next superior authority . . . shall refer the case to a judge advocate . . . for consideration and advice” if the accused has appealed a nonjudicial punishment which includes seven specified penalties. Among them is “reduction of one or more pay grades from the fourth or higher pay grade.”

Inasmuch as prosecution exhibit 3 reflects that appellant was reduced from SP. 4 to E-3, a judge advocate was required to record his consideration and advice on the exhibit in accordance with Article 15(e) of the Code. As the Court recently said in United States v. Mack, 9 M.J. 300, 324 (C.M.A.1980), “if certain punishments have been imposed, it will be necessary for the form to show the appeal was referred to a judge advocate as required by Article 15(e).” Since the omission here has not been accounted for by any independent evidence, prosecution exhibit 3 should not have been received into evidence for sentencing purposes. United States v. Mack, supra; United States v. Negrone, 9 M.J. 171 (C.M.A.1980).

The decision of the United States Army Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Army for resubmission to the Court of Military Review for reassessment of the sentence.