United States v. Gittens

Opinion of the Court Homer Ferguson, Judge: An Air Force special court-martial convened at Rhein Main Air Base, Germany, convicted the accused • of one specification alleging assault and battery and two specifications of assault upon an air policeman in the execution of his duties, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 USC §§ 928 and 934, respectively. In instructing the court-martial on the elements of the latter offenses, the president failed to advise that in order to find the accused guilty, the court must find that under the circumstances the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. In United States v Williams, 8 USCMA 325, 24 CMR 135, we held that failure to give such an instruction where an accused was charged with wrongful use of narcotics, in violation of Article 134, constituted reversible error. See also United States v Grosso, 7 USCMA 566, 23 CMR 30. Although we recognize the serious nature of the offenses charged, we cannot ignore — as we said in Williams, supra— “. . . the- Congressional intent manifested in the Code, supra, and the Manual for Courts-Martial, United States, 1951, that all elements of an offense be instructed upon by the law officer. Article 51(c), Uniform Code of Military Justice, 10 USC § 851 (c); paragraph 73, Manual, supra. United States v Lucas, 1 USCMA 19, 1 CMR 19; United States, v Clay, 1 USCMA 74, 1 CMR 74.” The instructional deficiency complained of in the case, at bar ■ extends [674] to both specifications of assault upon an air policeman in the execution of his duties and necessitates reversal of those convictions. The decision of the board of review is reversed and the record returned to The Judge Advocate General of the Air Force for resubmission to a board of review. The board, in its discretion, may reassess the sentence on the basis of the remaining approved finding of guilt or order a rehearing on the two specifications alleging the violation of Article 134, supra. Chief Judge Quinn concurs.