17 C.M.A. 383 | United States Court of Military Appeals | 1968
Opinion of the Court
Tried by special court-martial and found guilty of willful disobedience of a lawful order, in violation of Uniform Code of Military Justice, Article 90, 10 USC § 890, the accused was sentenced to bad-conduct discharge, forfeiture of $64.60 per month for six months, confinement at hard labor for six months, and reduction. Intermediate appellate authorities have approved the sentence, although the bad-conduct discharge has been suspended.
Evidence of accused’s prior, unblemished record and other matters were presented in mitigation and extenuation. Nevertheless, the president’s instructions on punishment were limited to the maximum sentence and additional pro forma advice. This was error and, under the circumstances, prejudicial to the substantial rights of the accused. See United States v Wheeler, 17 USCMA 274, 38 CMR 72, and United States v Mabry, 17 USCMA 285, 38 CMR 83.
The decision of the board of review is reversed and the record of trial is returned to the Judge Advocate General of the Navy. The board may reassess the sentence, or order a rehearing thereon.
