25 M.J. 837 | U.S. Army Court of Military Review | 1988
OPINION OF THE COURT
Appellant was convicted, pursuant to his pleas, of wrongful distribution of lysergic acid diethylamide (two specifications), wrongful possession of lysergic acid diethylamide, wrongful use of marihuana, and wrongful possession of marihuana in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (Supp. Ill 1985). His adjudged sentence included a dishonorable discharge, confinement for 36 months, forfeiture of all pay and allowances, and reduction to the grade of Private E-l.
On 24 July 1987, the acting commander took his action on this case. The action, in part
Appellant alleges that it would be improper for this court to conclude that the convening authority approved any punitive discharge other than a bad-conduct discharge. Government appellate counsel argue the convening authority’s action of 24 July 1987 was ambiguous, but was intended to approve a dishonorable discharge. The ambiguity, they argue, was corrected by the convening authority's second action.
Rule for Courts-Martial (hereinafter R.C.M.) 1107(f)(2), Manual for Courts-Martial, United States, 1984, provides, in part, that “[t]he convening authority may recall and modify any action taken by that convening authority at any time before it has been published or before the accused has been officially notified.” General Court-Martial Order Number 24 promulgating the initial action was published within the meaning of R.C.M. 1107(f)(2). Accordingly, on publication of the initial order, the convening authority’s jurisdiction to act further, without authority from the appellate courts or other authority,
Appellant also asserts the military judge erred by admitting an incomplete record of nonjudicial punishment into evidence. Government counsel concede the issue. We believe that reassessment of the sentence will purge both errors and ensure that the errors are not reflected in the sentence. United States v. Sales, 22 M.J. 305 (C.M.A.1986).
The findings of guilty are affirmed. Reassessing the sentence on the basis of the foregoing errors and the entire record, the court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for 36 months as suspended by the convening authority, forfeiture of all pay and allowances, and reduction to the grade of Private (E-l).
. Pursuant to a pretrial agreement, the action suspended for one year any confinement adjudged in excess of thirty-three months.
. See R.C.M. 1107(g).