United States v. Podgurski

15 C.M.A. 491, 15 USCMA 491, 35 C.M.R. 463, 1965 CMA LEXIS 165, 1965 WL 4708

• Court: United States Court of Military Appeals
• Decided: July 16, 1965
• Docket: No. 18,701
• Status: Published

Opinion

Opinion of the Court

PER Curiam:

At accused’s trial by special court-martial, he was found guilty of three specifications of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886. An Additional Charge of breach of restriction) in violation of Code, supra, Article 134, 10 USC § 934, was dismissed by the president on motion of the defense. Nevertheless, in post-trial consideration of the case, both the supervisory authority and the board of review considered the dismissed offense as if accused had been convicted thereof, purporting to affirm findings of guilty thereof along with the other offenses. Such was error, requiring a new and accurate post-trial review and action by the supervisory authority in light of the correct findings of guilty. Cf. United States v James, 1 USCMA 379, 3 CMR 113; United States v Grice, 8 USCMA 166, 23 CMR 390; United States v Katzenberger, 8 USCMA 497, 24 CMR 307; United States v Lanford, 6 USCMA 371, 20 CMR 87.

The petition for review is granted. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Navy, for further action consistent with this opinion.