19 C.M.A. 501 | United States Court of Military Appeals | 1970
Lead Opinion
Opinion of the Court
For the reasons stated in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970), use of a record of Article 15 punishment in the post-finding portion of appellant’s trial was erroneous. The error was not prejudicial, however. Bruns testified in mitigation and explained the reasons for his misconduct — twice failing to go to his appointed place of duty and two brief unauthorized absences. Because of the appellant’s candor and apparent honesty the military judge recommended suspension of both the punitive discharge and the confinement period. The convening authority later acted fávorably on the military judge’s recommendation. Consequently, any harm arising from the admission of such evidence appears to have been neutralized.
This case also has an issue regarding the military judge’s inquiry' into the appellant’s decision to be tried by a mil
We are satisfied that the results of this inquiry reflect an informed, voluntary choice by the appellant for trial by a military judge.
The decision of the Court of Military Review is therefore affirmed.
Concurrence in Part
(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree with my brothers that this record reflects an informed, voluntary choice by the appellant for trial by a military judge alone. However, I disagree with their holding that the accused was not harmed by the use of a record of Article 15 punishment in the post-finding portion of the trial for the reasons set forth in my separate opinion in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970).