United States v. Story

10 C.M.A. 145, 10 USCMA 145, 27 C.M.R. 219, 1959 CMA LEXIS 364, 1959 WL 3598

• Court: United States Court of Military Appeals
• Decided: January 23, 1959
• Docket: No. 12,067
• Status: Published

Opinions

Opinion of the Court

HomeR Ferguson, Judge:

The accused, on his plea of guilty, stands convicted by special court-martial of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. Immediately after announcing the sentence of bad-conduct discharge, confinement at hard labor for six-months, forfeiture of $55.00 per month for six months, and reduction to the grade of private, the president of the court-martial announced: “The defense counsel is directed to prepare a clemency appeal if so desired, which each member of this court may sign.” The clemency recommendation, dated the day after the trial and signed by four of the five members of the court, is appended to the record of trial and in substance “requests” that the portion of the sentence adjudging the bad-conduct discharge not be approved. The convening authority approved the sentence as adjudged, but provided for a technical suspension of the bad-conduct discharge. The record discloses that The Judge Advocate General of the Navy further suspended the execution of the bad-conduct discharge for a period of six months after expiration of the period of confinement with a provision for automatic remission. This suspension was made contingent upon its timely written acceptance by the accused and by its terms the six-month period would date from the date of such acceptance.

This Court granted review on the issue, “Whether the clemency recommendation by four members of the court-martial impeached or was in conflict with the sentence adjudged.”

This issue is substantially the same as that granted and disposed of in United States v Kaylor, 10 USCMA 139, 27 CMR 213, decided this date.

For the reasons detailed at length in that opinion, the sentence herein is set aside and the record of trial is returned to The Judge Advocate General of the Navy. A rehearing on the sentence may be ordered.

Chief Judge Quinn concurs.