United States v. Green

*479Opinion of the Court

■ROBERT E. Quinn, Chief Judge:

A board of review reassessed the sentence adjudged by the special court-martial on the ground that the president of the court erred to the accused’s prejudice in instructing that one of the offenses of which he was convicted carried a penalty which included a dishonorable discharge and confinement for five years. The Judge Advocate General of the Navy certified the case to this Court pursuant to the provisions of Article 67 (b) (2) of the Uniform Code of Military Justice, 10 USC § 867, on the following issue:

“Did the president of the court-martial err in instructing the members on a maximum sentence which exceeded the statutory maximum for a special court-martial?”

The accused was convicted of two offenses. The first is wrongful appropriation, in violation of Article 121, and the second is forgery, in violation of Article 123, Unform Code of Military ■Justice, 10 USC §§ 921 and 923. The president of the court duly instructed the court-martial on the limits of punishment. Objection to part of the instruction was interposed by defense counsel. The record of proceedings is ■as follows:

“PRES: Well, let’s proceed. I would like to instruct the court. You are advised that the maximum sentence which may be imposed in this case of the amount of $20.00 wrongful appropriation is three months confinement, loss of two-thirds pay for a period of three months and the maximum for forgery, Article 123, a dishonorable discharge, a period of confinement for five years. Also proof of two or more previous convictions authorizing a bad conduct discharge and six months confinement. I would like to draw attention to the court that these are maximum sentences, punishments for these offenses. The court, however, is limited to those set forth in the manual; a bad conduct discharge is the maximum this court can allow or assign, six months confinement, loss of two-thirds pay for a like period and reduction in rate.
“DC: One minute, I would like to notice to the instructions as given in that I feel it is improper to advise the court on a sentence which exceeds the maximum which the court can adjudge.
“PRES: The court will be closed.”

Substantially the same situation was before this Court in United States v Eschmann, 11 USCMA 64, 28 CMR 288. There the accused was convicted, and sentenced by a general court-martial to a dishonorable discharge and confinement at hard labor for five years. However, the convening authority set aside the sentence and directed a rehearing on the ground that the court was improperly influenced by a command lecture. In addition to instructing on the legal limits of punishment as fixed by the first court-martial, the law officer advised the court members, as did the president in this case, on the maximum penalty authorized by the Table of Maximum Punishments. We held that the latter instruction was improper. In the1 principal opinion it was pointed out that under the circumstances the Table of Maximum Punishments was “no longer relevant, and the court members should not have been informed of it.” The same reasoning is applicable to the present case in that the maximum punishment that can be imposed by a special court-martial is by law limited to no more than partial forfeitures, a bad-conduct discharge, and confinement at hard labor for six months. Accordingly, we answer the certified question in the affirmative.

The decision of the board of review is affirmed.

Judge Ferguson concurs.