United States v. Johnson

Opinion of the Court

FeRguson, Judge:

Tried by general court-martial, the accused was convicted of three specifications of absence without leave, in violation of Uniform Code of Military Justice, Article 86, 10 USC § 886, and sentenced to dishonorable discharge, total forfeitures, confinement at hard labor for two years, and reduction. The absences were for periods, respectively, of twenty-six days, fifty-three days, and sixty-two days.

Evidence was introduced as to two previous convictions of unauthorized absence extending to six days and four days. Accused testified as to his civilian and military background, and to his efforts in the past to obtain combat duty. The absences for which he was correctly convicted commenced after he received orders back to the United States from Vietnam and were motivated by a chance to remain overseas in light of severe domestic problems with his wife and his desire to continue combat duty. Two noncommissioned officers testified to accused’s ability as a soldier and their desire to have him retained in the service and to serve in their unit. Both counsel argued extensively on the sentence. The law officer, however, limited his advice to the maximum punishment imposable and to the mechanics of voting, delineating the separate penalty for each specification.

The law officer’s failure to provide adequate guideposts for the adjudication of an appropriate sentence was erroneous. United States v Wheeler, 17 USCMA 274, 38 CMR 72, this day decided. Under the circumstances, the error was prejudicial. There was substantial evidence adduced of accused’s good military character and enthusiastic, if misguided efforts, to remain in combat, as well as his serious domestic problems. Had the court-martial been more fully informed, it is fair to state it might not have sentenced the accused to a near-maximum punishment. Accordingly, corrective action is required.

The decision of the board of review *289is reversed and the record of trial is returned to the Judge Advocate General of the Army. The board may reassess the sentence or order a rehearing thereon.

Judge Kilday concurs.