United States v. Parmes

21 C.M.A. 199, 21 USCMA 199, 44 C.M.R. 253, 1972 CMA LEXIS 832, 1972 WL 14086

Opinion

Opinion of the Court

DARDEN, Chief Judge:

The appellant was convicted of premeditated murder and assault in which grievous bodily harm was intentionally inflicted. An en banc Court of Military Review, adopting a circulating panel draft opinion, set aside the finding and sentence and ordered a rehearing. At the rehearing, charges were amended to allege unpremeditated murder and assault with a deadly weapon. To these offenses the appellant pleaded guilty. He now seeks to void his conviction, contending that en banc consideration of a prior Court of Military Review panel decision vitiated the court-martial proceeding.

In United States v Gagnon, 21 USCMA 158, 44 CMR 212 (1972), where decisions of both a panel and the en banc Court were adverse to that appellant, we rejected similar defense contentions, because the benefits to Gagnon from vacation of the latter de- cisión and reinstatement of the former eluded us. Holding the en banc decision to be a nullity here in order to permit reinstatement of the panel decision to the same effect would accomplish nothing beneficial to this appellant. We therefore affirm the decision of the Court of Military Review.

Judges Quinn and Duncan concur.