United States v. Marsala

20 C.M.A. 124, 20 USCMA 124, 42 C.M.R. 316, 1970 CMA LEXIS 697, 1970 WL 7082

Opinions

Opinion of the Court

Quinn, Chief Judge:

We granted review to consider the correctness of the acceptance of the accused’s plea of guilty to a specification alleging unauthorized absence of approximately six weeks, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886, and the effect on the sentence of the erroneous consideration of evidence of punishment under Article 15, Code, supra, 10 USC § 815, as determined in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970).

Our decision in United States v Palos, 20 USCMA 104, 42 CMR 296, decided this date, sustains the acceptance of the plea. The number and the nature of the acts of misconduct reflected in the record of the Article 15 punishment persuade us that there was a fair risk that the record affected the sentence. United States v Worrell, 19 USCMA 487, 42 CMR 89 (1970). Accordingly, we reverse the decision of the United States Navy Court of Military Review as to the sentence and return the record of trial to the Judge Advocate General of the Navy for submission to the Court of Military Review for redetermination of the sentence.

Judge Darden concurs.