12 C.M.A. 443 | United States Court of Military Appeals | 1961
Concurrence Opinion
(concurring):
I concur.
While I agree fully with the Chief Judge that the court-martial which tried accused’s case was improperly constituted, I prefer more fully to set out the circumstances involved.
The charges against the accused were originally referred to a special court-martial whose membership included Peter and Tall entire. Subsequently, the charges were withdrawn from that court-martial and referred to trial before another special court-martial. Although Peter and Tallentire had not been appointed to this panel, they were present and participated in the hearing of accused’s case.
Accordingly, I agree with the Chief Judge that the proceedings against accused are a nullity. The egregious nature of the error argues against subjecting him again to the harassment of another trial. I, therefore, join in dismissing the Charge and its specifications.
Lead Opinion
Opinion of the Court
The court was improperly constituted. The findings of guilty are set aside. The Charge and its specifications are ordered dismissed.