17 C.M.A. 528 | United States Court of Military Appeals | 1968
Opinion of the Court
Convicted of two offenses in violation of Uniform Code of Military Justice, the punishment for which included a bad-conduct discharge only as a permissible additional penalty, the accused was nevertheless sentenced to bad-conduct discharge, forfeiture of $64.00 per month for three months, and confinement at hard labor for three months. Intermediate appellate authorities approved and, before the board of review, accused asserted as prejudicial error the failure of the president to instruct on the basis for the inclusion of the punitive discharge in the maximum sentence. The Government, in reply, conceded error, and asked that the matter be cured by reassessment of the adjudged and approved punishment. See United States v Yocom, 17 USCMA 270, 38 CMR 68. In reassessing, however, the board affirmed so much of the sentence as included the bad-conduct discharge and confinement, disapproving only the forfeitures. As the lack of proper sentence instructions went directly to the bad-conduct discharge, it should either have been disapproved or a rehearing ordered on the sentence. See United States v Fjermestad, 17 USCMA 287, 38 CMR 85.
Accordingly, the decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Air Force. The board may either disapprove that portion of the sentence relating to bad-conduct discharge or order a rehearing on the sentence.
