United States v. Hulon

16 M.J. 805, 1983 CMR LEXIS 891

• Court: United States Court of Military Appeals
• Decided: May 17, 1983
• Docket: NMCM 82 5758
• Status: Published

Opinion

PER CURIAM:

We have examined the record of trial, the summary assignments of error and the Government’s reply thereto, and have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

Appellant’s initial assignment of error argues that the findings relative to Charge I, alleging conspiracy, must be dismissed where the Government at a separate proceeding, withdrew with prejudice a conspiracy charge against appellant’s co-conspirator. The literal language of paragraph 160, Manual for Courts-Martial, 1969 (Rev.), undermines that contention. The Government’s election not to proceed against the co-conspirator cannot be considered an acquittal on the merits, but rather merely a termination of prosecution. The latter disposition has no bearing on the findings at appellant’s trial and does not require remedial action by this Court. See United States v. Kidd, 13 U.S.C.M.A. 184, 32 C.M.R. 184 (1962); United States v. Wiles, 4 M.J. 734 (C.G.C.M.R.1977). We also reject the second assignment of error, believing that a punitive discharge is wholly appropriate for an enlisted Marine in a supply billet who abused that position of trust by conspiring to steal and actually stealing government property.

Accordingly, the findings and sentence, as approved on review below, are affirmed.