United States v. Cieslak

Opinion of the Court Ferguson, Judge: The issues on which we granted accused’s petition for review in this case concern themselves solely with .trial counsel’s argument on the sentence, In his summation, he suggested that im [217] position of a bad-conduct discharge would not necessarily cause accused’s punitive separation but could result in giving him “an opportunity to prove himself.” In addition, he drew attention to a defense exhibit, admitted without objection, in which accused’s commander recommended his retention in the service; characterized the letter as “hearsay;” and argued that the United States “did not have the opportunity of . . examining him in detail as to his opinion — if there were any exceptions to it — any additions or whether under the circumstances this is his true impression today.” We need not inquire whether trial counsel’s argument was erroneous. While accused was sentenced to bad-conduct discharge, confinement at hard labor for six months, forfeiture of $50.00 per month for six months, and reduction to the grade of airman basic, the entire thrust of the remarks was calculated to obtain inclusion in the adjudged punishment of a punitive discharge. The supervisory authority’s action ordered the probationary suspension of that penalty for the period of confinement and four months thereafter. We are now advised that the bad-conduct discharge and the unex-ecuted portion of the adjudged confinement and forfeitures were remitted on June 7, 1962. As we perceive no real difference between remission of a discharge and its disapproval, such action serves to remove any prejudice flowing from the trial counsel’s argument — assuming its impropriety — by complete elimination of that portion of the sentence to which his presentation addressed itself. United States v Johnson, 12 USCMA 602, 31 CMR 188. The questions before us are, accordingly, moot. United States v Fisher, 7 USCMA 270, 22 CMR 60; United States v Bedgood, 12 USCMA 16, 30 CMR 16; cf. United States v Prescott, 2 USCMA 122, 6 CMR 122. The decision of the board of review is affirmed. Chief Judge Quinn and Judge Kil-DAY concur.