Lead Opinion
Opinion of the Court
Tried and convicted by a general court-martial at Fort Gordon, Georgia, of desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 865, the appellant was sentenced to a dishonorable discharge, total forfeitures, confinement at hard labor for three years (reduced to two years by the convening authority), and reduction to the lowest enlisted grade. We granted the appellant’s petition for review to consider the consequences of the law officer’s failure to orally instruct the court-martial on sentence voting procedures.
Here, as in United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970), instructions on sentencing matters failed to include oral advice on the processes of deliberation and voting as provided in the Manual for Courts-Martial, United States, 1951, paragraph 765(2). See also United States v Johnson, 18 USCMA 436, 40 CMR 148 (1969). Such advice was included, however, as a part of the voting instruction sheet introduced, after first being shown to opposing counsel,' as Appellate Exhibit 7.
In the absence of some indication that the court considered the contents of this exhibit, wé believe the disposition in this instance is controlled by United States v Pryor, supra, not by United States v Caid, 13 USCMA 348, 32 CMR 348 (1962). Accordingly, the decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on the sentence may be ordered.
Dissenting Opinion
(dissenting):
For the reasons set out in my dissent in United States v Pryor, 19 USCMA 279, 41 CMR 279 (1970), I would affirm the decision of the Court of Military Review.