United States v. Parks

17 C.M.A. 87, 17 USCMA 87, 37 C.M.R. 351, 1967 CMA LEXIS 289, 1967 WL 4260

• Court: United States Court of Military Appeals
• Decided: June 9, 1967
• Docket: No. 20,102
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

The accused stands convicted of a five-minute unauthorized absence and striking a petty officer who was in the execution of his office, in violation of Articles 86 and 91, Uniform Code of Military Justice, 10 USC §§ 886 and 891, respectively. A divided board of review affirmed the conviction. We granted review to consider the accused’s contention that the evidence is insufficient to support the findings of guilty.

A number of trial and post-trial errors are apparent on examination of the record. Among the former is a ruling, over defense objection, allowing a prosecution rebuttal witness to testify to his personal opinion as to “whether or not he’s [the accused] telling the truth.” (Emphasis supplied.) See Manual for Courts-Martial, United States, 1951, paragraph 138f; cf. United States v Jefferies, 12 USCMA 259, 30 CMR 259. Included in the latter, is a statement in the post-trial advice that as to the assault charge the accused’s “plea of guilty ... established his guilt beyond a reasonable doubt”; in fact, the accused pleaded not guilty. See United States v James, 1 USCMA 379, 3 CMR 113. After pondering all that happened below, we are convinced that the findings of guilty and the sentence should not stand. United States v Yerger, 1 USCMA 288, 290, 3 CMR 22.

In his action on the sentence, the convening authority provided for re-misssion of the bad-conduct discharge at the end of a probationary period. The period has expired, as has the executed portion of the confinement imposed by the court-martial. Under the circumstances, no useful purpose would be served by a rehearing of the cause. See United States v Sheeks, 16 USCMA 430, 37 CMR 50. Accordingly, the decision of the board of review is reversed, and the charges are ordered dismissed.