United States v. Lucy

6 M.J. 265, 1979 CMA LEXIS 11326

• Court: United States Court of Military Appeals
• Decided: March 26, 1979
• Docket: No. 32,409; NCM 75-1164
• Status: Published

Opinions

Opinion of the Court

per CURIAM.

The appellant was convicted by a general court-martial of the offenses of assault in which grievous bodily harm was intentionally inflicted and possession of an unauthorized dangerous weapon, in violation of Articles 128 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 892, respectively. He was sentenced to a bad-conduct discharge, confinement for one year, and forfeitures of all pay and allowances. Ninety-one days later, the convening authority took final action, approving the findings of guilty but reducing the period of confinement to 245 days. In all other respects, the sentence was approved. The United States Navy Court of Military Review found “no reason why this case should not be dismissed” but ordered a limited hearing to take “evidence relative to the delay in the post-trial review” pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). This hearing was completed and, following return of the record of trial and the transcript of the DuBay hearing, the Court of Military Review affirmed the findings and sentence. We granted review to consider several issues, including the appellant’s contention that the Court of Military Review erred when it remanded the case for the limited rehearing.

We have examined the record of proceedings and the decisions of the Court of Military Review and conclude that under the circumstances of this ease involving post-trial delay, no error was committed in remanding the case for a limited hearing to determine the cause of the delay. Our approval of the procedure utilized in this case should not be construed as relieving the Government of its responsibility to advise the appellate court of matters within the government’s knowledge which may have precipitated the delay and which, in the usual case, should constitute the minimal requirement for the granting of limited rehearings such as are involved here. The remaining issues have been considered and found to be without merit.

The decision of the United States Navy Court of Military Review is affirmed.