United States v. Payne

9 C.M.A. 40, 9 USCMA 40, 25 C.M.R. 302, 1958 CMA LEXIS 663, 1958 WL 3150

• Court: United States Court of Military Appeals
• Decided: March 14, 1958
• Docket: No. 10,863
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A special court-martial convicted the accused of wrongfully using provoking speech, in violation of Article 117, Uniform Code of Military Justice, 10 USC § 917. On the basis of four previous convictions by summary courts-martial within one year of the date of the commission of the offense charged,¹ the court sentenced the accused to a bad-conduct discharge, partial forfeiture, and confinement at hard labor for six months. Executive Order 10565, September 28, 1954, 19 FR 6299. In his post-trial review of the sentence, the staff judge advocate to the supervisory authority referred to other acts of misconduct by the accused which were set out in “evaluation” statements by the accused’s commander and other persons.

Apparently the accused was not accorded an opportunity to dispute or to explain the new adverse matter included in the staff judge advocate’s advice. On appeal, appellate defense counsel contended that the omission prejudiced the accused in regard to the sentence approved by the supervisory authority. See United States v Lanford, 6 USCMA 371, 20 CMR 87. However, the board of review held that, with the exception of certain matter obtained from the accused, “none of the information . . . concerned matters relating to the offense of which . . . [the accused] has been found guilty.” It, therefore, concluded that opportunity to meet the adverse matter did not need to be given to the accused. This determination is based on too narrow a reading of our decisions in this area. See United States v Lanford, supra; United States v Long, 5 USCMA 572, 18 CMR 196. The board of review, therefore, erred in its consideration of the sentence. It should either have returned the record of trial to the supervisory authority for appropriate corrective proceedings, or assessed the sentence in the light of the error in the staff judge advocate’s review. United States v Griffin, 8 USCMA 206, 24 CMR 16.

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 Air Force for submission to the board of review for further proceedings on the sentence in accordance with this opinion.

Judge FERGUSON concurs.

1 Three of the previous convictions were on a charge alleging a violation of a general regulation. One of them also includes a charge of making a false official statement to a commissioned officer, with the intent to deceive.