United States v. Pointer

18 C.M.A. 587, 18 USCMA 587, 40 C.M.R. 299, 1969 CMA LEXIS 713, 1969 WL 6089

Opinions

Opinion of the Court

Quinn, Chief Judge:

Before a special court-martial convened at Long Beach, California, the accused pleaded guilty to an unauthorized absence for a period of forty-eight days. During the sentence proceedings he testified in his own behalf. He indicated he had departed the Naval station without authority to find his pregnant wife who had summarily left him. When his wife returned to California and gave birth to his child, he returned to the service. He maintained his marriage was not “working out” and that the Navy, in which he had served since 1965, was the “only thing . . . [he had] left.” It was his “real desire” to remain in the Navy and, if he did, he would like overseas duty. The court imposed a sentence extending to a bad-conduct discharge.

We granted review' to determine whether the accused was denied the effective assistance of counsel as to the sentence. References in the convening authority’s action indicate the accused- served in Vietnam and is the recipient of a letter of commendation as a member of’ the crew of the U. S. S. NAVASOTA. Neither of these matters was presented to the court members. In a substantially similar case, we held that the accused’s Vietnam service and awards could have materially influenced the court members not to impose, a bad-conduct discharge and, therefore, the failure of defense counsel to inform the court members of these matters denied the accused effective representation to that extent. United States v Rowe, 18 USCMA 54, 89 CMR 54.

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 Navy ■for reference to the Court of Military Review. In its ' discretion, the Court of Military Review may redetermine the sentence without including a punitive discharge, or direct a rehearing of the sentence by a court-martial.

Judge Ferguson concurs.