United States v. Murphy

18 C.M.A. 571, 18 USCMA 571, 40 C.M.R. 283, 1969 CMA LEXIS 729, 1969 WL 6071

• Court: United States Court of Military Appeals
• Decided: September 12, 1969
• Docket: No. 22,142
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

The accused pleaded guilty to one specification of larceny of fragmentation vests, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921, and one specification of wrongful disposition of the same vests, alleged as a violation of Article 108, Code, supra, 10 USC § 908. At trial, the law officer instructed the court members that each offense was separately punishable. However, it appears from the evidence, the accused was solicited by a Korean national to obtain the property from a Government warehouse and turn it over to him; the accused acceded to the solicitation and procured and delivered the vests in a single integrated transaction. In these circumstances, the offenses were single for the purpose of punishment. United States v Payne, 12'USCMA 455, 31 CMR 41; see also United States v Brown, 8 USCMA 18, 23 CMR 242. The law officer’s instructions were, therefore, erroneous.

On initial review, the convening authority reduced the sentence adjudged by the court-martial, but the reduction was to conform the punishment to that provided in a pretrial agreement with the accused. The instructional error, therefore, remains uncorrected.

The decision of the board of review as to the sentence is reversed. The record of trial is returned to the Judge Advocate General of the Army for reference to the Court of Military Review for reassessment of the sentence in light of this opinion.