United States v. McNally

Opinion of the Court PER CURIAM: A special court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of possession of two ration cards contrary to a USAREUR Regulation, and possession of .0752 grams of heroin, in violation of Articles 134 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 892, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for 5 months, forfeiture of $298 pay per month for 5 months, and reduction to pay grade E-l. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 60 days and the period of forfeitures to 2 months, but in all other respects he approved the trial results. The Court of Military Review affirmed in an unpublished Memorandum Opinion. In this Court, appellant renews an argument he made for the first time in the intermediate court — namely, that his trial defense counsel erred in expressly urging the military judge to consider a bad-conduct discharge as an appropriate punishment for his transgressions. 11 M.J. 464 (1981). Under the circumstances of this case, we agree. We recently had occasion to discuss the propriety of a concession by defense counsel in his presentencing argument that a punitive discharge would be an appropriate element of the sentence. United States v. Volmar, 15 M.J. 339 (C.M.A.1983). At Vol-mar’s general cour1>martial, his defense counsel conceded the appropriateness of a bad-conduct discharge and suggested that such a discharge and a period of confinement of less than a year would be suitable for the accused. Under the circumstances of that case — where Yolmar might reasonably have expected a dishonorable discharge and rather lengthy confinement since reten [33] tion in the service was not really a reasonable alternative — we concluded that defense counsel had acted properly in accepting the realistic certainty of a punitive discharge and in attempting simply to cut his client’s losses. We recognized, “In arguing as to sentence, counsel — whether for the Government or for the accused — can be most effective by proposing to the sentencing authority an alternative for which there is some reasonable possibility of acceptance.” Id. at 342. Accordingly, defense counsel in Volmar did not err in conceding the appropriateness of a bad-conduct discharge under the circumstances, and the military judge did not err by not interrupting defense counsel’s argument and inquiring of the accused whether the concession conformed to his wishes. Here, however, the circumstances are significantly different. Since the trial was by special court-martial, there was no possibility that appellant would have suffered a discharge more onerous than a bad-conduct discharge. Further, the events surrounding the offenses themselves do not compel the conclusion that a bad-conduct discharge was inevitable. Appellant had explained in his unsworn statement through counsel that his purchase in the local community of this rather small portion of heroin was his first exposure to such activity. Concerning the ration cards, appellant had explained during the providence inquiry that, after losing the card originally issued to him, he had obtained a replacement and, when the first card was returned to him by mail, he had failed to return the replacement and, instead, simply kept both of them together in his wallet. Appellant, in his service of over one and one-half years in the Army, had no prior convictions by court-martial and, while he did have a record of four nonjudicial punishments under Article 15 of the Code, 10 U.S.C. § 815, all were for relatively minor transgressions. At no time during his unsworn statement did appellant imply that he desired separation from the Army. Noting in his sentencing argument that the drug offense for which McNally was being court-martialed was appellant’s “first excursion into this area,” defense counsel suggested: “Lucky for him, lucky for the Army, possibly the best thing that will come out of this court from this incident is hopefully the accused has been shocked ■with this brush with the law, with this conviction that he has already sustained, in that he will never again adventure into the area of drugs.” Notwithstanding this seemingly ideal preface for urging the military judge to give his client a second chance in the service, defense counsel immediately then argued, “The defense asks the court to consider that a bad-conduct discharge, with its permanent detrimental effect, is a proper punishment in this case.” It is true that counsel then proceeded to ask that no confinement be imposed. However, in light of all the circumstances of the case — including the facts that appellant’s vulnerability to confinement had been limited by a pretrial agreement to 60 days and that the lasting effects of a punitive discharge are severe and have long been recognized as such by this Court — we conclude that counsel erred in conceding the appropriateness of a bad-conduct discharge, without any indication on the record that he was doing so pursuant to his client’s wishes. See United States v. Webb, 5 M.J. 406 (C.M.A.1978); United States v. Holcomb, 20 U.S.C.M.A. 309, 43 C.M.R. 149 (1971); United States v. Garcia, 18 U.S.C.M.A. 75, 39 C.M.R. 75 (1968); United States v. Richardson, 18 U.S.C.M.A. 52, 39 C.M.R. 52 (1968); United States v. Mitchell, 16 U.S.C.M.A. 302, 36 C.M.R. 458 (1966). Prejudice is apparent. The decision of the United States Army Court of Military Review is reversed as to the sentence. The record of trial is remanded to the Judge Advocate General of the Army for submission to a convening authority who may either approve a sentence which does not include a bad-conduct discharge or order a rehearing on sentence.