United States v. Hammock

[246] Opinion of the Court ROBERT E. Quinn, Chief Judge: A special court-martial convicted the accused of a violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, under a specification alleging the possession of ration cards made out to other airmen in contravention of the provisions of a regulation of Headquarters, United States Air Force in Europe. It adjudged a sentence which includes a bad-conduct discharge. In United States v Tamas, 6 USCMA 502, 20 CMR 218, we held that, in the absence of allegation and proof of an intent to deceive, the possession of a false ration book is a “disorder . . . punishable by not more than four months’ confinement.” Under Footnote 5 of the Table of Maximum Punishments set out in the Manual for Courts-Martial, United States, 1951, if an offense “involving a failure to obey” a general order or regulation in violation of Article 92 is specifically listed elsewhere in the Table, the punishment is not that provided for a violation of Article 92, but rather that provided for the specific offense. See United States v Buckmiller, 1 USCMA 504, 4 CMR 96; United States v Lowe, 4 USCMA 654, 16 CMR 228. Since the regulation prohibits an offense already made punishable by the Uniform Code as a disorder, it follows that the maximum punishment is measured by that offense rather than that prescribed for a violation of Article 92. United States v Alberico, 7 USCMA 757, 23 CMR 221. On that basis, the accused’s sentence is illegal. The decision of the board of review in regard to the sentence is reversed, and the sentence is set aside. The record of trial is returned to The Judge Advocate General of the Air Force for submission to the board of review for redetermination of a legal and appropriate sentence. Judge FERGUSON concurs.