10 C.M.A. 36 | United States Court of Military Appeals | 1958
Lead Opinion
Opinion of the Court
Charged with the larceny of $20.00 from a fellow officer, the accused entered a plea of guilty. The meaning and effect of the plea were explained to him by the law officer, but. he persisted in it. He was found guilty as charged and sentenced to be dismissed from the service.
On this appeal, the accused contends he was deprived of his right to appeal from a ruling of the convening authority declaring unavailable individual military counsel requested by the accused for the Article 32 investigation. See Manual for Courts-Martial, United States, 1951, paragraphs 34c, 486. No motion for appropriate relief was made at the trial, and it nowhere appears that the accused was prejudiced at the trial by the improper action of the convening authority. Under the circumstances, there is no justification for setting aside the conviction. United States v Mickel, 9 USCMA 324, 26 CMR 104; United States v Rehorn, 9 USCMA 487, 26 CMR 267.
The decision of the board of review is affirmed.
Concurrence Opinion
(concurring in the result) :
Although I am of the belief that the action of the convening authority may well have been error, the accused waived that error by pleading guilty and not objecting, and thus failing to preserve the error for appellate review. See United States v Mickel, 9 USCMA 324, 26 CMR 104; United States v Darring, 9 USCMA 651, 26 CMR 431.