United States v. Provance

OPINION OF THE COURT CARNE, Senior Judge: This ease is before the Court for mandatory review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. Appellant was tried by special court-martial before a military judge alone for stealing $850.00 and a stereo receiver of a value of $313.00. Pursuant to his pleas, he was found guilty of wrongful appropriation of $850.00 and stealing the stereo receiver in violation of Article 121, Uniform Code of Military Justice (10 U.S.C. § 921). He was sentenced to a bad-conduct discharge, confinement at hard labor for five months, and forfeiture of $240.00 pay per month for six months. The convening authority affirmed only so much of the sentence as provided for a bad-conduct discharge and confinement at hard labor for 70 days. During the sentence portion of appellant’s trial the trial counsel offered and the military judge admitted, as prosecution exhibits, records of two Article 15 punishments. The appellate defense counsel alleges that these two prosecution exhibits consisting of non judicial punishment were improperly admitted into evidence based on the recent Court of Military Appeals ease of United States v. Booker.* Assuming without deciding that it was error to admit these Article 15’s, I can not find any risk of prejudice. Accordingly, the findings of guilty and the sentence are AFFIRMED. COOK, Judge, concurs in the results only. Footnotes [*] 3 M.J. 443 (C.M.A.1977).