United States v. Yarbrough

15 M.J. 569

Opinion

DECISION

PER CURIAM:

During the accused’s court-martial, evidence of three nonjudieial punishments was admitted and considered.

Footnotes

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* One punishment had been imposed more than two years prior to the commission of the offense of which the accused stands convicted; thus, it did not qualify for admission at trial. Air Force Manual 111-1, Military Justice Guide, paragraph 5-13, 25 August 1975, Change 4 (13 May 1980).

Despite defense failure to object to this evidence at trial, we find that its admission rises to the level of plain error contemplated by Mil.R.Evid. 103(d). United States v. Morales, 1 M.J. 87, 23 U.S.C.M.A. 508, 50 C.M.R. 647 (1975). See, United States v. Calin, 11 M.J. 722, 723 (A.F.C.M.R.1981) and United States v. Beaudion, 11 M.J. 838, 839-840 (A.C.M.R.1981). See generally, United States v. McCaskill, 676 F.2d 995, 1001-1002 (4th Cir.1982); United States v. Anderson, 654 F.2d 1264, 1268 (8th Cir. 1981); Darland v. United States, 626 F.2d 1235, 1237 (5th Cir.1980). See also, S. Saltzburg, L. Schinasi & D. Schlueter, Military Rules of Evidence Manual 19, 181 (1981).

We shall reassess the sentence. The outdated non judicial punishment related to possession of marijuana, the same offense as charged in the present case. We find appropriate only so much of the sentence as extends to a bad conduct discharge, confinement at hard labor for two months, forfeiture of $125.00 per month for four months, and reduction to airman basic. The findings of guilty and sentence, as reassessed, are

AFFIRMED.

Tried by a military judge sitting alone as a special court-martial, the accused was found guilty, in accordance with his pleas, of possession of eight ounces of marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. His sentence, as approved, extends to a bad conduct discharge, confinement at hard labor for two months, forfeiture of $250.00 per month for four months, and reduction to airman basic.