United States v. Pells

5 M.J. 380, 1978 CMA LEXIS 10009

• Court: United States Court of Military Appeals
• Decided: September 25, 1978
• Docket: No. 33,888; NCM 76-2229
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Chief Judge:

Subsequent to his affirmed conviction¹ by special court-martial of a single specification alleging a lewd and lascivious act, we entertained appellant’s petition for review on two grounds:

I

WHETHER THE MILITARY LACKED JURISDICTION OVER APPELLANT ON 23 AUGUST 1976 AND THE VACATION OF HIS SUSPENDED SENTENCE ON THAT DATE SHOULD BE DECLARED A NULLITY.

II

WHETHER THE PLEA OF GUILTY WAS IMPROVIDENT UNDER THE STANDARDS ESTABLISHED IN UNITED STATES V. CARE, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).

The appellant contends that the supervisory authority was without jurisdiction on September 29, 1976, to vacate the suspension of the bad-conduct discharge because his enlistment had expired on August 13, 1976.

We, however, agree with the suggestion of appellate government counsel that, even after the convening authority’s suspension of the discharge, the appellant was obliged to await completion of appellate action, in this instance approval of the sentence by the supervisory authority. Paragraph 94a (3), Manual for Courts-Martial, United States, 1969 (Revised edition). Only after the supervisory authority took this action did the terms of para. 88e, Manual, supra, become applicable to the appellant. However, prior to this action of the supervisory authority, the period of suspension was interrupted by the commencement of proceedings to vacate the sentence. The pending vacation proceedings tolled the running of the suspension. United States v. Rozycki, 3 M.J. 127 (C.M.A.1977). We find this accused was subject to court-martial jurisdiction.

As the remaining issue was improvidently granted, it is hereby vacated.

The decision of the United States Navy Court of Military Review is affirmed.

Judge PERRY concurs.

1 . Appellant was convicted, upon his guilty plea before military judge alone, of a violation of Article 134 Uniform Code of Military Justice, 10 U.S.C. § 934, and sentenced to a bad-conduct discharge, reduction to Private E-l, and forfeiture of $240 pay per month for 6 months. The findings and sentence were approved by the convening authority; the supervisory authority confirmed this action but suspended the discharge for 6 months, approving the remainder. This was affirmed by the United States Navy Court of Military Review.