United States v. MacQuarrie

17 C.M.A. 529, 17 USCMA 529, 38 C.M.R. 327, 1968 CMA LEXIS 266, 1968 WL 5411

Opinion

Opinion of the Court

PER Curiam:

Tried by special court-martial, the accused was convicted of four counts of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, and sentenced to bad-conduct discharge, forfeiture of $86.00 per month for six months, and confinement at hard labor for six months.

While none of the offenses of which accused was found guilty authorized the imposition of a bad-conduct discharge, such was allowed by the evidence of prior convictions and the fact that permissible confinement for two or more of the offenses amounted to six months or more. Manual for Courts-Martial, United States, 1951, paragraph 127e. The president nonetheless failed to instruct the court members regarding the basis for this additional punishment. Such was prejudicial error. United States v Cox, 17 USCMA 294, 38 CMR 92; United States v Yocom, 17 USCMA 270, 38 CMR 68; United States v Hutton, 14 USCMA 366, 34 CMR 146.

Accordingly, the petition for review is granted. The decision of the board of review is reversed and the record of trial is returned to the Judge Advocate General of the Navy. The board may disapprove that portion of the sentence adjudging a punitive discharge or order a rehearing on the sentence.