United States v. Choate

LatimeR, Judge

(concurring in part and dissenting in part):

I agree with the principal opinion in its determination of the first granted issue. With regard to the second, I must differ.

Under paragraph 126e of the Manual for Courts-Martial, United States, 1951, as amended by Executive Order 10652, 21 FR 235, January 10, 1956, the President has provided:

“Unless otherwise prescribed in regulations promulgated by the Secretary of the Department concerned, in the case of an enlisted person of other than the lowest pay grade, a court-martial sentence which, as approved by the convening authority, includes: (1) dishonorable or bad-conduct discharge, whether or not suspended, (2) confinement, or (3) hard labor without confinement, immediately, upon being so approved, shall reduce such enlisted person to the lowest enlisted pay grade; . . .”

Enlisted men may be reduced administratively, so there can be no question about the power of the President to prescribe for their reduction upon conviction. Taking advantage of the Executive exception, the Secretary of the Navy, in section 0109, 1955 Naval Supplement to the Manual for Courts-Martial, United States, 1951, promulgated a regulation providing as follows:

“Automatic reduction to the lowest enlisted pay grade under paragraph 126e, MCM 1951, will not be effected in the naval service. It is the policy of the Department of the Navy that enlisted persons of other than the lowest enlisted pay grade who are sentenced to confinement exceeding three months or to dishonorable or bad-conduct discharge also be sentenced to reduction to the lowest enlisted pay grade. The sentence in such cases should expressly include reduction to the lowest enlisted pay grade.”

In the case at bar, the law officer directed the court’s attention to the above-mentioned paragraph in the Naval Supplement, and the accused claims he was prejudiced thereby. I fail to find any logic in that contention. And I find less logic in the view taken by my associates that, because this is only a policy declaration, it should not have been brought to the attention of the court-martial. The effect of the provision is to grant a benefit to the offenders in the Naval service for, if they are convicted, they are not reduced in grade unless the court-martial specifically so provides in its sentence, whereas in the absence of the Naval provision, reduction would be automatic. Unlike the policy we considered in United States v Fowle, 7 USCMA 349, 22 CMR 139, then, this is clearly one that inures to an accused’s advantage. Accordingly, I pose the following question. Since when has it been error for a law officer to inform a court-martial about a policy declaration which was enacted for the benefit of the accused? Moreover, in order for the court-martial to be advised adequately of the essentials necessary to a proper sentence in the Naval service, it must be informed on the punishment it may impose. The only complaint the accused can urge in this instance is that the court-martial was not left uninformed *684on the law. To my mind that contention is without merit.

I would affirm the decision of the board of review.