United States v. Robinson

17 C.M.A. 343, 17 USCMA 343, 38 C.M.R. 141, 1967 CMA LEXIS 191, 1967 WL 4395

• Court: United States Court of Military Appeals
• Decided: December 22, 1967
• Docket: No. 20,373
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

The appellant was arraigned before a general court-martial convened at Kai-serslautern, Germany, charged with the possession, attempted sale, conspiracy to sell, and sale of marihuana, in violation of Articles 134, 80, 81, and 134, Uniform Code of Military Justice, 10 USC §§ 934, 880, 881, and 934, respectively. He pleaded guilty to all charges and the specifications thereunder. He was sentenced to confinement at hard labor for three years. The convening authority approved a sentence providing for confinement at hard labor for fifteen months and forfeiture of $37.00 per month for fifteen months. A board of review in the office of the Judge Advocate General of the Army affirmed the findings of guilty and the sentence. This Court has granted the appellant’s petition to consider the question of:

“WHETHER ADDITIONAL CHARGE I IS INSUFFICIENT TO ALLEGE A VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE AS CONTEMPLATED.”

This issue arises because the specification under Additional Charge I alleges the attempted sale of marihuana without the inclusion of words denoting criminality. This same omission was considered with regard to an identically worded specification in the case of United States v Brice, 17 USCMA 336, 38 CMR 134. We there determined that a specification is defective when so drawn.

Accordingly, the decision of the board of review as to Additional Charge I is reversed. The findings thereon are set aside. The record of trial is returned to the Judge Advocate General of the Army. The board of review may order a new trial on a properly drawn specification or reassess the sentence on the remaining charges and their specifications.

Chief Judge Quinn concurs.