United States v. Taulbee

29 M.J. 1014, 1990 CMR LEXIS 44, 1990 WL 8220

• Court: U.S. Army Court of Military Review
• Decided: January 26, 1990
• Docket: ACMR 8901354
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

The appellant contends that nothing in the record of trial establishes that his pretrial confinement was properly ordered or reviewed. We find that no such issues are raised in this case. Records showing a proper order into pretrial confinement and magisterial review need not be included in the record of trial under the current regulation. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 305(i)(6) [hereinafter R.C.M.]; Army Regulation 27-10, Legal Services: Military Justice, para. 9-5(b)(6) (16 Jan. 1989). Though advisable, failure of the trial counsel to include on the record that pretrial confinement had received proper magisterial review is not error. See United States v. Hill, 26 M.J. 836 (A.C.M.R.1988). The presumption of regular magisterial review has not been undermined in this case.

We note that the military judge expressed the forfeiture portion of the sentence in a fraction of total pay (“two-thirds”), rather than in a whole dollar amount as is required by R.C.M. 1107(d)(2). The convening authority properly exercised his discretion to approve the forfeitures as expressed in a whole dollar amount. See R.C.M. 1107(d)(2). We view this matter as de minimis. Though expressing a sentence to partial forfeitures by a formula is not advisable, it is not a jurisdictional error or defect affecting the legality of the sentence. United States v. Riverasoto, 29 M.J. 594 (A.C.M.R.1989). The promulgating order incorrectly reflects that the adjudged sentence was expressed in a whole dollar amount.

The findings of guilty and the sentence are affirmed.