United States v. McGlothing

14 C.M.A. 392, 14 USCMA 392, 34 C.M.R. 172, 1964 CMA LEXIS 290, 1964 WL 4990

• Court: United States Court of Military Appeals
• Decided: February 14, 1964
• Docket: No. 17,281
• Status: Published

Opinion

Opinion of the Court

Ferguson, Judge:

Tried by a general court-martial convened by the Commanding General, Third Marine Division, at Camp Hauge, Okinawa, the accused, pursuant to his pleas of guilty, was convicted of conspiracy, thirty-two specifications of larceny, thirty-four specifications of forgery, and wrongful possession of an identification card, in violation, respectively, of Uniform Code of Military Justice, Articles 81, 121, 123, and 134, 10 USC §§ 881, 921, 923, 934. Operating under instructions from the law officer which limited the maximum sentence to dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for 173 years, the court-martial imposed a penalty of dishonorable discharge, total forfeitures, and confinement at hard labor for five years. The convening authority reduced the punishment to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year. The board of review set aside the charge involving wrongful possession of an identification card, but otherwise affirmed. The Acting The Judge Advocate General of the Navy has certified its decision to this Court upon the following question:

“Was the Board of Review correct in holding that the specification under Charge IV failed to allege an offense?”

A study of the board’s action reveals that only the opinion of Member Ryan refers to the failure of the specification of Charge IV to allege an offense. Member Groom was absent, and Member Hendry concurred only in the result reached by Member Ryan. Compare United States v Cudd, 6 USCMA 630, 20 CMR 346. There is, therefore, no holding by the board that the specification of Charge IV did not allege an offense, and no certifiable issue is presented. United States v Leggio, 12 USCMA 319, 30 CMR 319. In addition, in light of the possible maximum sentence and the findings of guilty and punishment ultimately approved, we invite attention to our decision in United States v Gilley, 14 USCMA 226, 34 CMR 6.

The certificate of the Acting The Judge Advocate General of the Navy is ordered dismissed.

Chief Judge Quinn and Judge Kilday concur.