United States v. Killion

Opinion of the Court Kilday, Judge: Appellant was arraigned before a special court-martial convened at the U. S. Naval Station, Treasure Island, San Francisco, California, charged with absence without leave, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. He pleaded guilty and was found guilty as charged. He was sentenced to bad-conduct discharge, confinement at hard labor for three months, forfeiture of $83.00 per month for three months, and reduction to the grade of private E-l. Both the convening and supervisory authorities approved the sentence as adjudged. A board of review in the office of the Judge Advocate General of the Navy affirmed the finding of guilty and the sentence. This record of trial reveals that while the president of the court correctly instructed the court members as to the maximum imposable punishment, he did not inform them that the bad-conduct discharge was imposable only because of two previous convictions. This was error. Review of the record discloses the situation presented here is substantially identical to that involved in United States v Ferree, 16 USCMA 506, 37 CMR 126, this day decided. Our opinion in that case is controlling. Accordingly, the decision of the board of review as to the sentence is reversed, and the record of trial is returned to the Judge Advocate General of the Navy for further action. The board of review may affirm a sentence which does not include a bad-conduct discharge or a rehearing may be ordered on the penalty. Judge Ferguson concurs. Chief Judge QUINN concurs in the result.