United States v. Landrum

[376] Opinion FERGUSON, Judge: This ease is before us for the second time. See United States v Landrum, 17 USCMA 526, 38 CMR.324. In the mandate accompanying our ■ previous opinion, reversing for error in the law officer’s instructions, we directed the Judge Advocate General of the Army to take such action “as will cause the convening authority to order a rehearing, if such rehearing is practicable.” (Emphasis supplied.) Thereafter, although the accused had originally been tried, in Germany on orders of the Commanding General of the Third Infantry Division, the Judge Advocate General directed the Commanding General, Fort Leavenworth, Kansas, to take action in accordance with our mandate and opinion. The accused was retried at Fort Leavenworth and again convicted of the original charges. Appellate defense counsel allege that the court-martial convened at Fort Leavenworth was without jurisdiction to rehear this case since the original convening authority had not first been given the option of ordering a rehearing-or dismissing the charges. We agree. Our holding in United States v Robbins, 18 USCMA 86, 39 CMR 86, is directly in point. For the reasons set forth in Robbins, the proceedings ' in this case were without authority and heneé a nullity. The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. ' ;