United States v. Martin

23 C.M.A. 476, 1 M.J. 75, 50 C.M.R. 495, 23 USCMA 476, 1975 CMA LEXIS 744

Opinion

OPINION OF THE COURT

Per Curiam:

The Army Judge Advocate General certified this case for review under the provisions of Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867(b)(2). The certificate of review requested that action be taken with regard to the following issues:

I. WAS THE COURT OF MILITARY REVIEW CORRECT IN ITS DETERMINATION THAT WRONGFUL POSSESSION OF AMPHETAMINES FALLS WITHIN THE AMBIT OF ARTICLE 134, CLAUSE 1 OR 2?

II. IF THE FIRST CERTIFIED ISSUE IS ANSWERED IN THE AFFIRMATIVE, DID THE COURT OF MILITARY REVIEW ERR IN ITS DETERMINATION THAT THE ELEMENTS OF PREJUDICIAL OR SERVICE DISCREDITING CONDUCT WERE itfOT PROVEN AT TRIAL?

The Court of Military Review found in setting aside the findings and dismissing the charge that as a matter of fact there was "no proof to support the service-discrediting provision of clause two” of Article 134, UCMJ, 10 USC §934, United States v Martin, 50 CMR 314, 317 (ACMR 1975). This was a finding of fact which, under the circumstances in this case, is binding on the Court. United States v Phifer, 18 USCMA 508, 40 CMR 220 (1969); United States v Smith, 17 USCMA 427, 38 CMR 225 (1968); United States v Judd, 10 USCMA 113, 27 CMR 187 (1959).

Regardless of the answer to the first certified question, the Court of Military Review’s decision setting aside the findings and sentence and dismissing the charge would be unaffected; therefore, the first certified question is rendered moot.

The decision of the Court of Military Review is affirmed.