United States v. Garza

Darden, Judge

(concurring in part and dissenting in part) :

If the military judge in this case had *541announced that he would disregard trial counsel’s references to the political affiliations of the accused and his family, I would credit the judge, under the reasoning in United States v Montgomery, 20 USCMA 35, 42 CMR 227 (1970), with the ability to disregard the inadmissible evidence. Because of the judge’s announcement that he would consider the evidence as it bore on the accused’s performance as a Marine, I agree that reversible error occurred.

I disagree with the Court’s remedial action. Permitting the Court of Military Review to reassess and to approve a sentence that does not include a bad-conduct discharge is in effect indistinguishable from our ordering the charge dismissed. If a flawless trial had occurred, the seriousness of the basic offense is enough to justify a sentence that includes a punitive discharge. Consequently, I would permit a rehearing.