United States v. Wheeler

22 C.M.A. 149

• Court: United States Court of Military Appeals
• Decided: February 16, 1973
• Docket: No. 26,412
• Status: Published

Opinion

Opinion of the Court

Duncan, Judge:

Among the offenses to which the appellant pleaded guilty was one (specification 1, Charge I)¹ alleging a violation of a “lawful general regulation, to wit: USARPAC Regulation 190-30, by wrongfully having possession of paraphernalia, to wit: 16 needles and 7 syringes.” He now contends and the Government concedes that his plea to this specification was improvident. United States v Scott, 22 USCMA 25, 46 CMR 25 (1972).

The Government correctly concedes error. In United States v Scott, supra, we held that USARPAC Regulation 190-30, dated November 24, 1969, was regulatory in nature and could not serve as a basis for a violation of Article 92, UCMJ. Cf. United States v Woodrum, 20 USCMA 529, 43 CMR 369 (1971); United States v Tassos, 18 USCMA 12, 39 CMR 12 (1968).

That portion of the decision of the Court of Military Review affirming the appellant’s conviction of specification 1, Charge I, is reversed and the specification is ordered dismissed. The record of trial is returned to the Judge Advocate General of the Army. The Court of Military Review may reassess the sentence on the basis of the remaining findings of guilty.

Chief Judge Darden and Judge Quinn concur.

1 Article 92, Uniform Code of Military Justice, 10 USC § 892.