United States v. Gilley

Nov 8, 1963
No. 16,965
Versions:

Opinion of the Court

Ferguson, Judge:

The Judge Advocate General of the Army has certified two questions to this Court concerning the propriety of the board of review’s action in setting aside and dismissing a purported finding of guilty of assault and battery, in violation of Uniform Code of Military Justice, Article 128, 10 USC § 928. The accused remains properly convicted of two specifications of indecent assault, in violation of Code, supra, Article 134, 10 USC § 934, and the board held that the dismissed count had no impact upon the sentence as adjudged and approved below.

Under the circumstances, we deem the questions presented to be moot. Cf. United States v Bedgood, 12 USCMA 16, 30 CMR 16. Practically speaking, *227any action which we might take with respect to the certified issues would not materially alter the situation presented with respect either to the accused or the Government. Cf. United States v Subia, 12 USCMA 23, 30 CMR 23; United States v Marymont, 11 USCMA 745, 29 CMR 561. Accordingly, we decline to answer them.

The decision of the board of review is affirmed.

Chief Judge Quinn and Judge Kil-day concur.