United States v. Mittelsteadt

24 M.J. 640, 1987 CMR LEXIS 270

Opinions

DECISION

PER CURIAM:

Pursuant to his pleas of guilty, appellant was convicted of three unauthorized absences of 37 days, 9 days and 12 days duration, in violation of Article 86,. Uniform Code of Military Justice, 10 U.S.C. § 886 and one specification of missing movement of his ship through design in violation of Article 87, Uniform Code of Military Justice, 10 U.S.C. § 887. After presentation of extensive evidence in extenuation and mitigation relating to physical, emotional and personal problems experienced by appellant, including problems relating to alcohol dependence, the court, composed of officer members, sentenced appellant to a bad conduct discharge, confinement for 130 days and reduction to pay grade E-l. In announcing this sentence for appellant’s first court-martial conviction, the president of the court, a Coast Guard Captain, stated, “we further recommend that you be given psychiatric evaluation and help during confinement if indicated; that you be afforded the opportunity to attend alcohol, drug rehabilitation during confinement; and that you be encouraged to handle your just debts.” (ROT at 191).

Detailed defense counsel, in his response to the District Legal Officer’s post trial recommendation to the convening authority, states, without contradiction, that the expressed concerns of the members were not pursued by the Coast Guard. He indicates that the very fact of appellant’s being subject to discharge may have prevented treatment/rehabilitation efforts. The convening authority, after considering all matters presented, approved the sentence without modification.

Appellate defense counsel argues that in light of all the facts of this case a punitive discharge is inappropriate and that this Court in fulfilling its Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 responsibilities should not affirm a sentence which includes such punishment. We disagree. Upon due consideration, we are of the opinion that the sentence announced by the members, and approved by the convening authority is appropriate for the offenses of which the accused stands convicted. The findings and the sentence are affirmed.

Judges BRIDGMAN, BURGESS and GRACE concur.