United States v. Towery

3 M.J. 727, 1977 CMR LEXIS 798

• Court: U.S. Army Court of Military Review
• Decided: May 24, 1977
• Docket: CM 432911
• Status: Published

Opinion

COSTELLO, Judge:

Our first decision in this case, United States v. Towery, 51 C.M.R. 727, 2 M.J. 468 (A.C.M.R.1975), was vacated and the case remanded to us by the Court of Military Appeals pending that Court’s disposition of related issues accepted for review and then pending in what now appear as United States v. Courtney, 24 U.S.C.M.A. 280, 51 C.M.R. 796, 1 M.J. 438 (C.M.A. 1976), and United States v. Jackson, 3 M.J. 101 (C.M.A.1977). Appellant’s petition for review of the speedy trial issues previously decided by this Court was not granted. United States v. Towery, Docket No. 31,928 (C.M.A.1976), Order dated 28 April 1976.

In Courtney the Court of Military Appeals determined that the appellant had been denied equal protection of the law because his drug offense was arbitrarily charged as a violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934, rather than as one under Article 92, UCMJ, 10 U.S.C. § 892, for which a lesser maximum punishment is provided. Pursuant to an agreement between the courts, we withheld disposition of this case pending resolution of questions concerning the proper application of the Courtney decision. See United States v. Jackson, 2 M.J. 987 (A.C.M.R. 24 September 1976). Then the Court of Military Appeals determined that the rule in Courtney should only be applied prospectively, i. e., to cases tried after its decision date, July 2,1976. United States v. Jackson, supra. Accordingly, that decision does not apply here and this case is again ready for disposition.

We adopt our previous opinion as cited above. Pursuant to that opinion and the foregoing, the findings of guilty and the sentence are affirmed.

Chief Judge CLAUSEN absent. Senior Judge CLAUSE concurs.