United States v. Thorpe

9 C.M.A. 705, 9 USCMA 705, 26 C.M.R. 485, 1958 CMA LEXIS 435, 1958 WL 3407

• Court: United States Court of Military Appeals
• Decided: October 3, 1958
• Docket: No. 11,366
• Status: Published

Opinions

Opinion of the Court

George W. Latimer, Judge:

The facts bringing this case before us for review are these. Accused, while performing a regular semi-annual inventory of classified documents entrusted to his custody, found that one designated “Top Secret” was missing, Instead of reporting the loss, he falsified two official forms in an attempt to conceal the fact that the document was missing. In one form he reported over his signature that he had inventoried and could account for all “Top Secret” documents for which he was responsible. He also inserted a description of the lost document in another form which his predecessor had executed showing that certain other classified documents had been destroyed some eight months previously. For each of these falsifications the accused was charged with having made a false official statement, in violation of Article 107, Uniform Code of Military Justice, 10 USC § 907, and with wrongful and dishonorable conduct unbecoming an officer, in violation of Article 133, Uniform Code of Military Justice, 10 USC § 933. He was convicted of both charges and their four specifications. The law officer, recognizing that the offenses were each made the subject of two charges, correctly instructed the court members that the maximum imposable sentence was dismissal, total forfeitures, and confinement at hard labor for two years. The court-martial then returned a sentence of dismissal.

The proceedings were regular until the staff judge advocate advised the convening authority that, by altering the previous certification of documents destroyed, the accused had not committed an offense in violation of Article 107, supra, but rather he had offended against Article 134, Uniform Code of Military Justice, 10 USC § 934. Hence, the staff judge advocate recommended approval of all four specifications; however, he further advised the convening authority that the court’s finding on the specification alleging alteration laid under Article 107 should be modified and approved as a violation of Article 134, supra. The convening authority took the recommended action, and the board of review affirmed. The accused then petitioned this Court for review, and his request was granted to dispose of the question whether the convening authority erred to the prejudice of the accused when he affirmed a finding of guilty after substituting a different offense than that upon which the accused was convicted.

We are willing to assume for the purpose of this case that the convening authority’s action, insofar as it changed the court-martial’s finding on the one specification, was in error. His action could only have been based upon the erroneous assumption that accused’s alteration of an existing valid official record by insertion of additional false data, with intent to deceive, was not an offense against Article 107, supra. The document which was falsi-fled was not originally accused’s official statement, but he certainly made a material alteration in an official record when he added thereto information which increased the number of documents allegedly destroyed. The additional information written into the certificate by him which, when incorporated with the other contents of the document, became a completed false statement of which he was the maker. Hence, the conclusion must follow that the accused was properly charged with and found guilty of a violation of Article 107, supra, for a falsification of his predecessor’s records.

Because of the manner in which the offense was charged, the convening authority misconceived the Article of the Code under which such criminal conduct was prohibited. The staff judge advocate’s review and the convening authority’s action, however, make manifest the fact that he approved a finding of guilt under Article 134, supra, by adding to the elements of a violation of Article 107, supra, an additional one, namely, that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces. If, however, the added ingredient is deleted, it necessarily follows that the convening authority found all of the elements of the crime required by Article 107, supra, to be supported by substantial evidence.

In reviewing the record of trial, the staff judge advocate listed the maximum period of confinement as four, instead of two, years and if sentence is limited to the two Article 107 offenses, this was an error. It will be recalled, however, that the sentence adjudged by the court-martial included only dismissal. It is entirely understandable then why the staff judge advocate confined his discussion of the sentence to the question of whether the accused was disqualified for further military service. He concluded there were no circumstances which would warrant suspension of the dismissal and restoration of the accused to duty.- It is apparent from his post-trial review that neither he nor the convening authority who acted upon his recommendations was concerned with the period of confinement as such. Moreover, the appropriateness of the dismissal was specifically made an issue by appellate defense counsel before the board of review. We have no doubt that in its review of the record of trial the board of review was fully aware of the law officer’s instruction on the maximum sentence and of the mitigating circumstances presented to the court-martial and to the convening authority which merited consideration in regard to the sentence. Nevertheless, the board of review affirmed the sentence to dismissal as “correct in law and fact.” In this situation, we are unable to discern any possibility that the accused was prejudiced because of the staff judge advocate’s statement of the maximum period of confinement. United States v Crusoe, 3 USCMA 793, 14 CMR 211.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.