United States v. Fredenburg

Opinion of the Court FERGUSON, Judge: Tried by general court-martial, the accused pleaded guilty to two specifications of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, and guilty to the same offense as a charge lesser included in a specification of desertion, in violation of Code, supra, Article 85, 10 USC § 885. He was found guilty in accordance with his pleas and sentenced to confinement at hard labor for twelve months, forfeiture of $55.00 per month for twelve months, and reduction to the grade of recruit. The convening authority approved the sentence but “commuted” it to a dishonorable discharge. The board of review affirmed, and The Judge Advocate General of the Army certified its decision to this Court upon the following question: “WAS THE BOARD OF REVIEW CORRECT IN HOLDING THAT, AS A MATTER OF LAW, THE ACTION OF THE CONVENING AUTHORITY IN THIS CASE DID NOT INCREASE THE SEVERITY OF THE SENTENCE ADJUDGED?” Our decision in United States v Johnson, 12 USCMA 640, 31 CMR 226, this day decided, governs disposition of this issue. For the reasons stated therein, the certified question is answered in the negative. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Army. The proceedings will be forwarded to the convening authority with direction to take a new action upon the record. Chief Judge QUINN and Judge Kil-DAY concur.