United States v. Marshall

14 C.M.A. 619, 14 USCMA 619, 34 C.M.R. 399, 1964 CMA LEXIS 230, 1964 WL 5035

Opinion

Opinion of the Court

PER Curiam:

Convicted of absence without leave, larceny, and worthless check offenses, in violation of Uniform Code of Military Justice, Articles 86,121, and 128a, 10 USC §§ 886, 921, 923a, respectively, the accused was sentenced to bad-conduct discharge, forfeiture of $50.00 per month for two months, confinement at hard labor for two months, and reduction. The convening authority set aside the findings of guilty of larceny and approved the sentence, suspending the bad-conduct discharge. Other appellate authorities have affirmed. Before us, the accused contends that specifications 3 and 4, Charge II, are fatally defective in that they combine allegations of an intent to deceive with the purpose of procuring lawful currency in purporting to charge violations of Code, supra, Article 123a. See United States v Wade, 14 USCMA 507, 34 CMR 287. The Government acknowledges that the specifications in question do not allege offenses, and prays that this Court set aside the findings of guilty with respect thereto, returning the record of trial to the board of review for reassessment of the sentence. Our separate examination of the counts indicates that the Wade decision is, indeed, dispositive.

The petition for review is granted. The findings of guilty of specifications 3 and 4, Charge II, are set aside. 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 reassess the sentence on the basis of the remaining findings of guilty.