United States v. Silver, No. 19,941

No. 19,941 | United States Court of Military Appeals | Apr 7, 1967

Opinion of the Court

Per Curiam :

A general court-martial convened in South Vietnam convicted the accused of destroying a Government tent through neglect,¹ and of wrongfully making a known false statement under oath, in violation of Articles 108 and 133, Uniform Code of Military Justice, 10 USC §§ 908 and 933, respectively. It sentenced him to be dismissed from the service. On review, a board of review set aside the latter offense, and reduced the sentence to a reprimand and forfeiture of $250.00 per month for six months.

Between the time of the board of review’s decision and the accused’s petition for grant of review, this Court decided United States v Robbins, 16 USCMA 474, 475, 37 CMR 94. We held it is error to instruct a court-martial that if it believes a witness has testified falsely to a material fact it can “ ‘disregard his testimony in whole or in part, except insofar as it may have been corroborated by other credible evidence.’ ” Substantially, the same instruction was given in this case. Reversal is, therefore, required.

The decision of the board of review is reversed, and the findings of guilty and sentence are set aside. A rehearing may be ordered.

1 The theory of the Government was that the tent was enveloped by flames from a gasoline fire started by the accused to destroy an infestation of ants in the mat flooring of the tent.