United States v. Washington

5 M.J. 609

Opinions

OPINION OF THE COURT

JONES, Senior Judge:

This case involves the applicability of United States v. Booker, 5 M.J. 238 (C.M.A.1977), regarding the admissibility of records of non-judicial punishment to the circumstances of this case. Specifically, does the Booker rule apply to Article 15’s, 10 U.S.C. § 815, administered before the Book er decision but offered in evidence in a trial held after that decision.¹

Counsel for both sides have presented helpful briefs on this issue. Without going into an analysis of the retroactivity rule or a detailed step-by-step application of it to this case, we conclude that the Booker rule should be applicable only to Article 15 punishments imposed after the date of that decision.

Even assuming full or partial retro-activity, however, there are two reasons for denying appellant relief here. First, the form used for recording the imposition of non-judicial punishment, as contrasted with the form used to record proceedings by summary courts-martial, meets the requirements of Booker. Second, even if the three records of punishment were inadmissible, the appellant was not prejudiced by those minor derelictions when the seriousness of his offense is considered.²

The findings of guilty and the sentence are affirmed.

Judge MITCHELL concurs.

Footnotes

1

. We assume for the purposes of this decision that the language in United States v. Booker, 5 M.J. 238 (C.M.A.1977), regarding Article 15’s is binding precedent, notwithstanding the absence of the issue in that case and the absence of any followup decision in cases where the issue was properly presented. But see United States v. Linam, No. S13163 (A.C.M.R. 7 April 1978); United States v. Provance, 4 M.J. 819 (A.C.M.R. 18 January 1978).

2

. Appellant received a bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year for the theft of seven money orders.