United States v. Hysmith

15 M.J. 1083, 1983 CMR LEXIS 897

• Court: U S Air Force Court of Military Review
• Decided: May 12, 1983
• Docket: ACM 23804
• Status: Published

Opinion

DECISION

PER CURIAM:

In accordance with his pleas, the accused was convicted of multiple drug offenses. His approved sentence extends to a dishonorable discharge, confinement at hard labor for seven years, total forfeitures and reduction to airman basic.

The accused now challenges the erroneous advice of the staff judge advocate to the convening authority. The convening authority promulgated his action on the accused’s sentence after being advised by his staff judge advocate that the accused was not a volunteer for rehabilitation and was therefore ineligible for rehabilitation. This advice was plainly in error. The accused had expressed an interest in rehabilitation and was eligible for rehabilitation. The trial defense counsel failed to comment on this error when he replied to the review pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975). We will not apply the doctrine of waiver when trial defense counsel fails to comment on such a patent error that is inimical to the interests of the accused. United States v. Palenius, 2 M.J. 86 (C.M.A.1977); See United States v. Siders, 15 M.J. 272, 274, fn 3 (C.M.A.1983).

Accordingly, the action of the convening authority is set aside. The record of trial is returned to The Judge Advocate General. The record of trial and the review of the staff judge advocate will be furnished to the defense counsel for additional comment. Following preparation of an addendum to the review of the staff judge advocate and a new action by the convening authority, the record of trial will be returned to the Court for further review.