United States v. Hurd

3 M.J. 735, 1977 CMR LEXIS 793

Opinion

OPINION OF THE COURT ON FURTHER REVIEW

PER CURIAM:

Our decision of 8 September 1975 was vacated and the case remanded to us by the Court of Military Appeals pending that Court’s disposition of related issues previously granted in United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (C.M.A.1976); United States v. Jackson, 3 M.J. 101 (C.M.A.1977); and United States v. Graves, 2 M.J. 1001 (A.C.M.R. 29 September 1976), affirmed by Order, 3 M.J. 186 (C.M.A.1977).

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In Courtney the Court of Military Appeals determined that Courtney was denied equal protection of the law because his drug offense had been arbitrarily charged as a violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, rather than as one under Article 92, UCMJ, 10 U.S.C. § 892, for which a lesser maximum punishment is provided. By judicial agreement this Court withheld its disposition of this case pending resolution of the proper application of the Courtney decision. See United States v. Jackson, 2 M.J. 987 (A.C.M.R. 24 September 1976).

By its decision on the appeal of the Jackson case, the Court of Military Appeals determined that the rule in Courtney should only be applied prospectively, i. e., to cases tried after its decision date, July 2, 1976. United States v. Jackson, supra. In Graves, supra, our decision was affirmed “for the reasons stated in United States v. Jackson.” Accordingly, those decisions need not be applied to the instant case and it is again ready for disposition.

The Court, having found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved, hereby affirms those findings of guilty and the sentence.

Chief Judge CLAUSEN absent.

The decision thus vacated was one “on further review” which followed execution of a new staff judge advocate review and action by the convening authority. Those corrections had been ordered by our first decision in this case, United States v. Hurd, 49 C.M.R. 671 (A.C.M.R. 1974), which we adopt.