United States v. Robson

16 C.M.A. 527, 16 USCMA 527, 37 C.M.R. 147, 1967 CMA LEXIS 346, 1967 WL 4210

• Court: United States Court of Military Appeals
• Decided: February 24, 1967
• Docket: No. 19,709
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

Appellant was arraigned before a general court-martial convened at Fort Carson, Colorado, charged with larceny of a money order, forgery, and uttering of the same money order (separate specifications), and unlawfully opening and destroying mail matter, in violation of Articles 121, 123, and 134, Uniform Code of Military Justice, 10 USC §§ 921, 923, and 934, respectively. He pleaded not guilty to all charges and specifications but was convicted of the larceny and forgery offenses. The uttering and mail matter specifications were dismissed by the law officer when he sustained defense counsel’s motion for a finding of not guilty. Appellant was sentenced to confinement at hard labor for one year, forfeiture of $50.00 per month for a like period, and reduction to the grade of E-l. The convening authority approved the findings and sentence. A board of review in the office of the Judge Advocate General of the Army affirmed the findings of guilty but modified the sentence by approving only so much of the sentence as provides for confinement at hard labor for six months, forfeiture of $50.00 per month for six months, and reduction in grade to the rank of E-l.

This Court granted review to consider counsel’s allegation that:

The court-martial did not have jurisdiction because the offenses charged were allegedly committed prior to the accused’s honorable discharge and do not survive under the bifurcated test of Article 3(a), Uniform Code of Military Justice. United States v Steidley, 14 USCMA 108, 33 CMR 320.

According to the record, the charged offenses allegedly occurred on November 16, 1964, at Fort Sill, Oklahoma. The petitioner received an honorable discharge, under AR 635-205, on December 16, 1964, and reenlisted the following day. Counsel alleges that since the offenses are triable in a Federal District Court or in the Oklahoma State courts, Article 3(a) of the Code, supra, is inapplicable and jurisdiction to try the appellant by court-martial was lost when the latter was discharged.

We agree. Our decision in this case is governed by our opinion in United States v Ginyard, 16 USCMA 512, 37 CMR 132.

The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Army. The charges are ordered dismissed.

Judge Ferguson concurs.