11 C.M.A. 482 | United States Court of Military Appeals | 1960
Lead Opinion
Opinion of the Court
The issue in this case is the same as that in United States v Green, 11 USCMA 478, 29 CMR 294, decided this date. For the reasons there stated, the decision of the board of review is reversed and the sentence is set aside. The record of trial is returned to The Judge Advocate General of the Navy for submission to the board of review for reassessment of the sentence. See United States v Eschmann, 11 USCMA 64, 28 CMR 288.
Dissenting Opinion
(dissenting):
I dissent.
Although the president of this special court-martial mentioned the authorized punishment for accused’s crime under the Table of Maximum Punishments, he expressly instructed that the maximum penalty imposable by a special court-martial was bad-conduct discharge, partial forfeitures, and confinement for six months. Further, the court members were specifically charged that they and they alone shouldered the responsibility for determining an appropriate sentence within those limits. That they properly performed their duties is implicit in the sentence for the punishment imposed was well below the maximum of the special court. Accordingly, and for the reasons I set forth in my dissenting opinion in United States v Green, 11 USCMA 478, 29 CMR 294, this day decided, I am unable to find any error prejudicial to this accused. In my view, the court-martial did not utilize an innocent standard in assessing punishment, nor were they in any fashion improperly pressured into adjudging a harsh sentence.
I would affirm the decision of the board of review.
