United States v. Stanton

16 C.M.A. 526, 16 USCMA 526

• Court: United States Court of Military Appeals
• Decided: February 17, 1967
• Docket: No. 19,898
• Status: Published

Opinion

Opinion of the Court

Kilday, Judge:

Appellant was arraigned before a special court-martial convened at the U. S. Naval Station, Brooklyn, New York, charged with absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. He pleaded guilty and was found guilty as charged. He was sentenced to a bad-conduct discharge, confinement at hard labor for three months, and a loss of two-thirds pay for three months. The convening authority thereafter approved only so much of the sentence as provided for bad-conduct discharge, confinement at hard labor for three months, and forfeiture of $60.00 per month for three months. The officer exercising general court-martial jurisdiction approved this action. A board of review in the office of the Judge Advocate General of the Navy affirmed the finding of.guilty and the sentence.

The president of this special court-martial neither instructed the court members as to the maximum imposable punishment, nor did he advise them that the bad-conduct discharge was imposable only because of two previous convictions. This was error.

In short, the defects found in this record are substantially identical to those found in United States v Turner, 9 USCMA 124, 25 CMR 386, and United States v Ferree, 16 USCMA 506, 37 CMR 126. Our opinions in those cases are controlling.

Accordingly, the petition for review is granted. The decision of the board of review as to the sentence is reversed and the record of trial is returned to the Judge Advocate General of the Navy for further action. A rehearing may be ordered on the penalty.

Chief Judge Quinn and Judge Ferguson concur.