United States v. Rankin

16 C.M.A. 272, 16 USCMA 272, 36 C.M.R. 428, 1966 CMA LEXIS 236, 1966 WL 4504

• Court: United States Court of Military Appeals
• Decided: June 17, 1966
• Docket: No. 19,294
• Status: Published

Opinion

Opinion of the Court

Kilday, Judge:

The appellant wag arraigned before a general court-martial convened at Nuernberg, Germany, on one charge and specification of larceny of $1.15 United States currency and two German marks of a value of 50^; and one charge and specification of unlawfully opening certain letters, addressed to others, in the base post office, in violation of Article 121 and Article 134, Uniform Code of Military Justice, 10 USC §§ 921 and 934, respectively. He was sentenced to be confined at hard labor for six months, to forfeit $50.00 per month for six months, and to be reduced to the grade of E-2. At the time of trial appellant was serving in the grade of E-4. The convening authority approved the sentence. Pursuant to Article 69, Uniform Code of Military Justice, 10 USC 869, the case was directed to be reviewed by a board of review, citing CM 413386, Koleff, February 18, 1966 (United States v Koleff, 16 USCMA 268, 36 CMR 424, this day decided). A board of review in the office of The Judge Advocate General of the Army affirmed the findings and sentence. The Judge Advocate General of the Army, pursuant to Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867, certified the case to this Court for review of the following certified question:

“WAS THE BOARD OF REVIEW CORRECT IN FINDING THE APPROVED SENTENCE CORRECT IN LAW?”

The law officer properly advised the court as to the maximum imposable sentence, including reduction to the lowest, or any intermediate, enlisted pay grade. The law officer was not requested to, nor did he, instruct the court that a sentence as approved by the convening authority, which includes a punitive discharge, confinement, or hard labor without confinement, reduces an enlisted person to pay grade E-l, pursuant to Article 58(a), Uniform Code of Military Justice, 10 USC § 858.

In extenuation, appellant offered the testimony of officers and others for whom he worked certifying to his good character, creditable performance of duty, and value to the service.

The record in this case is substantially the same as, and the certified question is identical to, that contained in United States v Koleff, supra. That case and the instant case were consolidated for oral argument before us.

For the reasons stated in United States v Koleff, supra, the certified question is answered in the negative. The decision of the board of review is reversed. The record is returned to The Judge Advocate General of the Army for further action not inconsistent with the opinion in the case of United States v Koleff, supra. A board of review may reassess the sentence so that, within the terms of Article 58(a), supra, the appellant will not be reduced below the grade of E-2, as fixed by the court-martial, or a rehearing may be ordered.

Chief Judge Quinn and Judge FeR-guson concur.