United States v. McMullen

21 C.M.A. 465, 21 USCMA 465, 45 C.M.R. 239, 1972 CMA LEXIS 712, 1972 WL 14165

• Court: United States Court of Military Appeals
• Decided: June 23, 1972
• Docket: No. 25,356
• Status: Published

Opinion

Opinion of the Court

DARDEN, Chief Judge:

A special court-martial convicted the accused of two violations of the Uniform Code of Military Justice, Ar-tide 91, 10 USC § 891. We are concerned only with one of these, the specification of which alleges that the accused disobeyed an order “to get a haircut.”

At the trial, it appeared that the accused in fact had his hair cut, but that this was not in accord with pertinent regulations. In his findings, the military judge modified the specification in question by inserting the word “regulation,” causing it to charge disobedience of an order “to get a regulation haircut.” (Emphasis supplied.)

When acting as a fact finder, a military judge may amend a specification by exceptions and substitutions. He may not, however, change the nature of the offense charged by addition of new matter. United States v Hopf, 1 USCMA 584, 5 CMR 12 (1952). In the instant case, this principle was transgressed.

The findings of guilty of specification 8 of the Charge are set aside. The record of trial is returned to the Judge Advocate General of the Navy. The Court of Military Review may reassess the sentence on the basis of the remaining findings of guilty.

Judges Quinn and Duncan concur.