21 C.M.A. 150 | United States Court of Military Appeals | 1972
Memorandum Opinion of the Court
Petitioner has filed a “Petition for Extraordinary Relief Pursuant to Section 1651, Title 28, USC,” and the respondent has submitted its “Answer and Response” to our Order to Show Cause.
There are no factual conflicts requiring resolution by the Court for the parties agree on all material facts.
It appears that petitioner was originally convicted by a general court-martial of a violation of Article 80, Uniform Code of Military Justice,
The case was assigned to Panel 3, of the latter tribunal, and a majority of the panel concluded the military judge at the rehearing committed prejudicial error by admitting certain evidence. Accordingly, the majority set aside the findings and sentence. Because, inter alia, petitioner had “been twice tried, twice convicted, and twice the conviction . . . [had] been set aside for prejudicial error,” they ordered the charge dismissed. The third member of the panel disagreed.
Subsequent to promulgation of the en banc decision, petitioner filed in this Court a petition for review pursuant to Article 67(b)(3), Uniform Code, supra.
In its “Answer and Response to Order to Show Cause,” respondent concedes that the en banc reconsideration of the panel decision was improper under United States v Chilcote, 20 USCMA 283, 43 CMR 123 (1971).
10 USC § 880.
See Article 60, Uniform Code, supra, 10 USC § 860.
See Articles 65(a) and 66(b), Uniform Code, supra, 10 USC §§ 865(a) and 866(b).
10 USC § 867(b) (3).
United States v Lohr, Docket No. 22,915, 19 USCMA 615. In thi¡i petition no reference was made to a decision by a panel of the Court of Military Review.
In United States v Chilcote, 20 USCMA 283, 43 CMR 123 (1971), this Court held that Article 66(a), Uniform Code of Military Justice, 10 USC § 866 (a), does not authorize en banc reconsideration of a panel decision, and we set aside a decision, adverse to petitioner therein, arrived at upon such reconsideration.