20 M.J. 553 | U.S. Army Court of Military Review | 1985
OPINION OF THE COURT ON RECONSIDERATION
The appellant was tried by a special court-martial without members during the period October-November-December 1983. The court-martial was convened by Major General Thurman E. Anderson, Commander, 3d Armored Division. Contrary to his plea Specialist Giarrantano was convicted of wrongfully distributing marijuana in the hashish form. The sentence extended to reduction to the grade of E-l, forfeiture of $100.00 pay per month for three months, confinement at hard labor for three months, and a bad-conduct discharge. After completion of the trial the case was transferred to Lieutenant General John D. Bruen, Commander, 21st Support Command, who took initial action and approved the adjudged sentence.
I
During the trial the appellant raised the issue of unlawful command influence by General Anderson. As appropriate relief he asked that a new referral be accomplished by a different convening authority, that court members be selected from outside the 3d Armored Division, and that the review be conducted by a convening authority outside the 3d Armored Division. At the resulting evidentiary hearings many witnesses appeared,
After receiving and considering the extensively developed evidence on the appellant’s motion, the military judge made special findings to include: (1) Major General Anderson was empowered to convene this case.
On appeal before this Court, Specialist Giarratano asserts only that Major General Anderson was disqualified as a matter of law from referring his case to trial. We disagree, as the Court has decided this issue against the appellant in United, States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984) (en banc).
II
General Anderson’s conduct involved issues other than his competence to refer cases to trial. These issues have also been considered in our disposition of this ease.
Over the past few months this Court has examined the issue of unlawful command influence in the 3d Armored Division in numerous cases and has determined it to have been present in the division during the time it was commanded by General Anderson.
We are satisfied that the litigation of the appellant’s motions for appropriate relief at an Article 39(a), Uniform Code of Military
The findings of guilty and the sentence are affirmed.
. The Court reconsidered this case on its own motion under Rule 20 of its Rules of Practice and Procedure for the purpose of reissuing its previous memorandum decision in this Opinion of the Court.
. From the record it appears that the appellant was allowed to call any witness with relevant information.
. The record of trial in this case was admitted as an appellate exhibit in pleadings before this Court in most, if not all, of the 3d Armored Division cases cited in this opinion, as well as in most other cases before this Court that involved the issue of unlawful command influence in the 3d Armored Division while General Anderson was Commander.
. The appellant was assigned to a non-3d Armored Division unit that was attached to the division for purposes which included court-martial jurisdiction.
. On this date General Anderson took initial remedial action to counteract the effects of his conduct later found to have been unlawful command influence.
. The military judge acknowledged he was powerless to take action to require referral to another convening authority. General Anderson did in fact transfer the case to a different convening authority for review and initial action.
. See United States v. Treakle, 18 MJ. 646 (A.C. M.R.1984) (en banc) for a discussion of the facts surrounding this issue.
. We feel it appropriate at this time to commend the military judge for the outstandingly skillful manner in which he conducted the trial of this case.