United States v. Jones

20 C.M.A. 90, 20 USCMA 90, 42 C.M.R. 282, 1970 CMA LEXIS 742, 1970 WL 7072

Opinion

Opinion of the Court

PER CuRiam:

In material part, specification 1, Additional Charge III, alleges that, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928, the accused “did . . . strike Private E-l Steven C. Cantrell in the face with his fists.” No averment indicates that the act was wrongful or unlawful. Consequently, the specification is insufficient to allege a violation of Article 128. See United States v Brice, 17 USCMA 336, 38 CMR 134 (1967); United States v Priester, 4 CMR 830 (AFBR 1952). The Government concedes error.

The decision of the United States Army Court of Military Review is reversed as to specification 1, Additional Charge III, and the sentence. The findings of guilty as to the specification and the accused’s plea of guilty to the specification are set aside and the specification is ordered dismissed. 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.