United States v. Walker

19 C.M.A. 472, 19 USCMA 472, 42 C.M.R. 74, 1970 CMA LEXIS 854, 1970 WL 6984

• Court: United States Court of Military Appeals
• Decided: May 28, 1970
• Docket: No. 22,601
• Status: Published

Opinion

Opinion of the Court

Darden, Judge:

Tried by general court-martial at Fort Dix, New Jersey, the appellant was convicted of stealing mail from a mail room during the period July 5 through August 2, 1968. He was also found guilty of opening this mail and taking money. Treating these offenses as mul-tiplicious for sentencing purposes, the court sentenced the appellant to confinement at hard labor for twelve months, forfeiture of $75.00 per month for the same period, and reduction to the lowest enlisted grade. The question now is whether the law officer prejudi-cially erred by instructing the court on sentence that a record of Article 15 punishment for one day’s absence without leave and a reference that mail matter had on another occasion been found in Walker’s room were before the court “for all purposes.” Parenthetically we note that in acting on Walker’s petition for grant of review we rejected the defense contention that other acts of misconduct raised at trial also included forgery.

Because the charged offenses occurred before the effective date of the Manual for Courts-Martial,’ United States, 1969, the law officer’s instruction on the use of other acts of misconduct was erroneous. United States v Worley, 19 USCMA 444, 42 CMR 46 (1970); United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970). The instruction should not have been given. Corrective action is therefore required. United States v Mallard, 19 USCMA 457, 42 CMR 59 (1970). Accordingly, the decision of the Court of Military Review is reversed as to sentence. The record of trial is returned to the Judge Advocate General of 'the Army for resubmission to the- Court of Military Review for reassessment of the sentence.

Chief Judge Quinn concurs. Judge Ferguson concurs in the result.