United States v. Dugger

PER CURIAM: Consonant with his plea, the appellant was found guilty of striking four Marines in the face with his fist, in violation of Article 128, UCMJ, 10 U.S.C. § 928, and was sentenced by military judge, sitting alone as a special court-martial, to a bad conduct discharge, confinement at hard labor for sixty days, forfeiture of $220 per month for two months and reduction to pay grade E-l. The sentence has been approved on review below but the supervisory authority suspended execution of the bad conduct discharge during a probationary period. A pretrial agreement provided, inter alia, for the suspension on probation of all confinement in excess of thirty days. On 9 July 1976, more than three months after trial, the convening authority approved the sentence, stating that the sentence limiting terms had not been effectuated in accordance with the terms of the pretrial agreement providing for nullification upon post-agreement misconduct. He stated that he had ordered the appellant to serve the remaining portion of his confinement beginning on 6 July 1976. Inasmuch as the confinement had not been suspended or deferred, the appellant should have been credited with having served all of the adjudged confinement prior to the action of the convening authority. This error was noted by the supervisory authority who credited the appellant with uninterrupted full service of his confinement from the date of trial. However, it appears that the appellant was improperly confined for thirty days, less credit, if any, for good conduct, after 6 July 1976. In view of this error, we make an appropriate mitigation in the sentence. Accordingly, the findings of guilty and only so much of the sentence as provides for a bad conduct discharge (suspended), confinement at hard labor for sixty days and reduction to pay grade E-l are affirmed.