Lead Opinion
Opinion of the Court
Petitioner Mann was tried by general court-martial for absence without leave and larceny in violation of Articles 86 and 121 of the Uniform Code of Military Justice, 60 USC §§ 680 and 715. He was found guilty of both charges and sentenced to dismissal and total forfeitures. The convening authority approved and the board of review affirmed with minor mitigation of the sentence.
Accused’s petition has been granted on the question of whether the conference between the law .officer and the members of the court, out of the presence of the accused and counsel, prejudiced the rights of the accused. This discussion occurred after the court had reached its findings but before sentence and involved the effect of dismissal and forfeitures. This Court has stated the law to be that such procedures are vio-lative of Articles 26(b) and 39 of the Uniform Code of Military Justice, 50 USC §§ 590 and 614. United States v. Wilmer Keith (No. 503), 4 CMR 85, decided July 30, 1952; United States v. Henry M. Smith (No. 512), 4 CMR 123, decided August 6, 1952; and United States v. Wingert (No. 785), 4 CMR 166, decided August 8, 1952.
Accordingly the decision of the board of review is reversed and a rehearing is ordered.
Dissenting Opinion
(dissenting):
I dissent for the reasons set forth in United States v. Woods and Duffer (No. 1023), 8 CMR 3, decided February 19, 1953.