15 M.J. 345 | United States Court of Military Appeals | 1983
Lead Opinion
Opinion of the Court
In a bench trial by special court-martial, appellee was convicted of three specifications of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886, and sentenced to a bad-conduct discharge, confinement for 45 days, forfeiture of $50.00 pay per month for 2 months, and reduction to the lowest enlisted grade. After the convening authority approved these results, the officer exercising general court-martial jurisdiction returned the record to the convening authority for a hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), to determine if McGinnis had constructively enlisted in the Navy.
At the DuBay hearing, the judge found that appellee had constructively enlisted, and this finding was approved by the convening authority. Thereupon, the supervisory authority approved the findings of guilty and the sentence as adjudged. However, the Navy-Marine Corps Court of Military Review set aside the findings and sentence, since they concluded that the 1979 amendment to Article 2 of the Uniform Code, 10 U.S.C. § 802
Since unauthorized absence is among the “purely military offenses,” the
Accordingly, the decision of the United States Navy-Marine Corps Court of Military Review is affirmed.
. Act of November 9, 1979, Pub.L. No. 96-107, § 801, 93 Stat. 810; this law took effect on November 9, 1979.
Dissenting Opinion
(dissenting):
As I stated in my separate opinion in United States v. Torres, 7 M.J. 102, 105 (C.M.A.1979), I would no longer apply the doctrine of United States v. Russo, 1 M.J. 134 (C.M.A.1975). See also United States v. McDonagh, 14 M.J. 415, 423 (C.M.A.1983) (Cook, J., concurring in part). In my opinion, whatever taint may have attached to appellant’s initial enlistment into the Naval Reserve was cured by his subsequent enlistment into the Regular Navy and entrance onto active duty. In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890). Accordingly, I would reverse the decision of the United States Navy-Marine Corps Court of Military Review.