United States v. Unrue

22 C.M.A. 654

Opinion

With due regard for the position of the United States Court of Appeals for the District of Columbia in Averch v. Secretary of the Navy, — F.2d — (D. C. Cir. 1973), this Court considers itself bound by the decision of the United States Supreme Court that the Legislative predecessor of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, was constitutional. Dynes v. Hoover, 61 U.S. 65, 15 L. Ed. 838, 20 How. 65 (1858). See also United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R. 37 (1953); United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964); and United States v. Pitosi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971).

Accordingly, it is, by the Court, this 2d day of April 1973,

ORDERED:

That the defense "Motion for Enlargement of the Scope of the Granted Issue” be, and the same hereby is denied; and it is further

That the "Motion for Enlargement of the Filing of the Final Brief Under Rule 43 of the Granted Issue,” be, and the same hereby is, granted, up to and including April 6, 1973.

Judge Duncan would grant the motion and order oral argument on the issue presented.