12 C.M.A. 16 | United States Court of Military Appeals | 1960
Lead Opinion
Opinion of the Court
Tried by general court-martial, the accused was found guilty of wrongful appropriation of a motor vehicle, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921, and going without proper authority from his appointed place of duty, in violation of Code, supra, Article 86, 10 USC § 886. He was sentenced to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and “to be dismissed from the service [w]ith a general discharge.” The convening authority “modified” the sentence to read, “To be dishonorably discharged from the service, to forfeit all pay and allowances, and to be reduced to the grade of Recruit E-l.” The board of review held that the substitution of the dishonorable discharge for the “legally adjudged general discharge” was without legal effect and, as a matter of appropriateness, approved only so much of the sentence as provided for reduction and forfeiture of $40.00 per month for three months. With respect to its decision, The Judge Advocate General of the Army has certified to this Court the following question:
“WAS THE BOARD OP REVIEW CORRECT IN HOLDING THAT A GENERAL COURT-MARTIAL CAN LEGALLY ADJUDGE A SENTENCE TO AN ADMINISTRATIVE TYPE OF DISCHARGE?”
In view of the board of review’s action on the sentence, it is apparent that the inquiry framed by The Judge Advocate General is moot. United States v Fisher, 7 USCMA 270, 22 CMR 60; United States v Storey, 9 USCMA 162, 25 CMR 424; United States v Armbruster, 11 USCMA 596, 29 CMR 412.
The decision of the board of review is afiirmed.
Concurrence Opinion
(concurring in the result):
I concur in the result.
In United States v Phipps, 12 USCMA 14, 30 CMR 14, decided this day, we concluded that a court-martial was not authorized to adjudge a separation from the service by an administrative discharge. That holding answers the certified issue.