United States v. Walker

8 C.M.A. 38, 8 USCMA 38, 23 C.M.R. 262, 1957 CMA LEXIS 474

Opinion

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

The accused contends that the law officer erred in his advice on the maximum sentence that could be imposed for the offense for which he was convicted and asks that the record of trial be returned to the board of review for redetermination of an appropriate sentence. He was convicted of committing an indecent, lewd, and lascivious act with another soldier, which carries a maximum punishment of a dishonorable discharge, total forfeitures, and confinement at hard labor for five years, and of soliciting named persons to commit, respectively, sodomy and an indecent act. The law officer instructed the court-martial that the maximum sentence for each of the latter offenses included confinement at hard labor for five years.

In United States v Oakley, 7 USCMA 733, 23 CMR 197, we held that a solicitation to commit an offense, in violation of the Uniform Code, is a separate offense punishable as a disorder, and carries a maximum punishment of confinement at hard labor for four months and forfeiture of two-thirds pay per month for a like period. The offenses in issue here fall within this class. Thus, the law officer erred in his instructions on the maximum punishment. Accordingly, the decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army for submission to the board of review for reassessment of the sentence in the light of this opinion.

Judges LatimeR and FERGUSON concur.