United States v. Muskovac

16 C.M.A. 616, 16 USCMA 616, 37 C.M.R. 236, 1967 CMA LEXIS 325, 1967 WL 4229

• Court: United States Court of Military Appeals
• Decided: April 14, 1967
• Docket: No. 20,006
• Status: Published

Opinion

Opinion of the Court

Kilday, Judge:

Appellant was arraigned before a special court-martial convened at the Marine Corps Air Station, Beaufort, South Carolina, charged with absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. He pleaded guilty and was found guilty as charged. He was sentenced to a bad-conduct discharge, confinement at hard labor for two months, and forfeiture of $59 per month for two months. The convening authority approved the sentence, as did the officer exercising general court-martial jurisdiction. A board of review in the office of the Judge Advocate General of the Navy affirmed the finding of guilty and the sentence.

This Court granted review of the case to consider the effect of the president’s failure to instruct the members of the court as to the basis on which the bad-conduct discharge might be imposed.

The record of trial shows the president of this special court-martial gave correct advice as to the maximum imposable punishment. He did not, however, include an instruction that the bad-conduct discharge was imposable only because of two previous convictions. This was error. The infirmity contained in this record is substantially identical to that found in United States v Ferree, 16 USCMA 506, 37 CMR 126. Our opinion in that case is controlling.

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 Navy for action not inconsistent with this opinion.

Chief Judge Quinn and Judge Ferguson concur.