United States v. Henderson

4 M.J. 750

Opinion

DECISION UPON FURTHER REVIEW

EARLY, Chief Judge:

This case is now before us for the third time. In our initial opinion, United States v. Henderson, unpublished (A.F.C.M.R. 2 March 1976), we set aside part of the forfeitures, but otherwise affirmed the findings and sentence. On 3 June 1976, the Court of Military Appeals vacated our decision and remanded the record of trial with directions to hold further proceedings in abeyance pending disposition of the issues granted in United States v. Jackson; United States v. Courtney and United States v. McCarthy. Those cases having been decided

* we again considered the case on further review, United States v. Henderson, 54 C.M.R. 523 (Interim), 2 M.J. 321 (1976). In that decision we affirmed our initial decision. Subsequently, the Court of Military Appeals reversed our decision and dismissed Specifications 1 and 2 of Charge II by order, 4 M.J. 92 (C.M.A.1977) based on the decisions of United States v. Alef, 3 M.J. 414 (C.M.A. 1977) and United States v. Jackson, 3 M.J. 101 (C.M.A.1977). The case is now before us for reassessment of the sentence based upon the affirmed findings of guilty.

In reassessing the sentence we note that this case was tried on 8 October 1975, a date preceding the decision in United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (1976), which is the date established by United States v. Jackson, 3 M.J. 101 (C.M.A.1977) as determining the prospectivity of the Courtney decision. We also note that pursuant to a pretrial agreement the adjudged sentence was reduced by the convening authority.

Reassessing the sentence in light of the approved findings of guilty we find appropriate only so much as provides for a bad conduct discharge, confinement at hard labor for eight months, forfeiture of $240.00 per month for ten months and reduction to airman basic.

The findings of guilty and the sentence, both as modified, are

AFFIRMED.

HERMAN, Judge, concurs.

FORAY, Judge, absent.

Jackson was initially decided by order (2 July 1976) and Courtney and McCarthy by decision, 24 U.S.C.M.A. 280. 51 C.M.R. 796. 1 M.J. 438 (1976), and 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976), respectively.