United States v. Thorpe

FERGUSON, Judge

(dissenting):

I dissent.

The accused was convicted of violating two specifications of Article 107 and two specifications of Article 133, Uniform Code of Military Justice, 10 USC §§ 907 and 933, respectively. As the principal opinion notes, the law officer, recognizing that the two alleged offenses were each made the subject of two charges, correctly instructed the court-martial that the maximum imposable sentence was dismissal, total forfeitures, and confinement at hard labor for two years. The court-martial thereupon returned a sentence of dismissal.

However, the staff judge advocate, taking no note of the effect of multiplicity upon the sentence, advised the convening authority that the maximum imposable confinement was four years. He also advised the convening authority the evidence of record established that specification 2 of Charge I was a violation of Article 134 of the Code, supra, 10 USC § 934, rather than of Article 107. The convening authority affirmed the findings except insofar as he approved that under specification 2 of Article 107 as one under Article 134. This error went unnoticed at the board of review level. The majority opinion now finds the convening authority’s action to have been innocuous although incorrect.

While it is true that error in sentence instructions at the trial level may .be cured by appropriate recognition of the error at the convening authority or the board of review level, it by no means follows that the contemplation of a prejudicially excessive maximum sentence by the convening authority and the board of review can be cured by correct trial level instructions. To the contrary, it would imply to those reviewing authorities that the accused had already received more consideration than warranted by the trial court. Obviously this situation would militate against any sentence reduction at the convening authority level at which we have noted the accused has his greatest opportunity for sentence reduction (see United States v Wilson, 9 USCMA 223, 26 CMR 3), or at the board of review level with its statutory authority to approve an appropriate sentence.

One may only speculate as to how the staff judge advocate arrived at his conclusion that the maximum imposable sentence was four years. He might have done so by ignoring the issue of multiplicity which the law officer put to rest by his correct instructions at trial level. Or, he might have felt that specification 2 of Charge I was proven by the evidence under. the subsection of Article 134 of the Code, supra, dealing with false swearing. The maximum sentence under Article 107 is one year so far as confinement is concerned, and is three years for false swearing under *709Article 134. However, by whatever method the staff judge advocate reached his conclusion, the convening authority was incorrectly advised that the maximum period of confinement was four years. He acted under this mis-advice. It might well be, particularly in view of accused’s exemplary record, that he would have considered dismissal too severe a sentence had he been advised that the correct period of maximum confinement was two years. See United States v Conroy, NCM 57-01206, board of review decision August 7, 1957.

It is axiomatic that an accused is entitled to have convening authority action predicated upon correct staff judge advocate advice. The accused did not enjoy this benefit in the present case.

This accused was tried under Article 107 of the Code, supra. Then, the convening authority, in his action upon accused’s sentence, treated it as being under Article 134. An instruction dealing with the violation of Article 134, unlike an instruction with reference to an offense in violation of Article 107, requires an instruction that under the circumstances the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. See United States v Gittens, 8 USCMA 673, 25 CMR 177; United States v Lawrence, 8 USCMA 732, 25 CMR 236. Thus, in the instant case, the accused could not have been convicted of an offense under Article 134 at the court-martial level. Clearly, it constitutes prejudicial error for the convening authority to predicate his action upon an offense of which the accused has never rightfully been convicted.

Obviously the same holds true for a board of review. That appellate tribunal cannot properly affirm a conviction for an offense for which accused has never stood trial.

I would return the record of trial to The Judge Advocate General of the Army for reference to another convening authority to allow him to take action predicated upon a new staff judge advocate’s advice.