United States v. Sidney

23 C.M.A. 185

• Court: United States Court of Military Appeals
• Decided: July 5, 1974
• Docket: No. 28,370
• Status: Published

Opinion

OPINION OF THE COURT

Per Curiam:

We granted review of two assignments of error. As to the first, the evidence indicates that an order to the accused by the company commander, regarding registration and safekeeping of personal weapons, was essentially an enjoinder to comply with existing regulations on the subject. Consequently, the accused’s misconduct should have been charged as a violation of Article 92(2), Uniform Code of Military Justice, 10 U.S.C. § 892(2), rather than under Article 90 of the Code, for which the punishment "is considerably less.” United States v Warts-baugh, 21 USCMA 535, 541, 45 CMR 309, 315 (1972). The second assignment of error affects the sentence; the Government concedes error and "joins with appellant in requesting . . . [the Court] set aside the sentence and authorize a rehearing thereon.”

The decision of the Court of Military Review is reversed as to Charge I and its specification and the sentence. The findings of guilty as to Charge I are set aside, and the charge and specification are ordered dismissed. A rehearing on the sentence for the remaining findings of guilty may be ordered.

Chief Judge Duncan did not participate in this case.