United States v. Ross

DARDEN, Chief Judge

(concurring in result):

A charge with its specification is not the same as an indictment. United States v Johnson, 12 USCMA 710, 31 CMR 296 (1962). The military pleading is more in the nature of an information and can be amended at the trial, provided the accused is not prejudiced. United States v Krutsinger, 15 USCMA 235, 35 CMR 207 (1965); United States v Johnson, supra.

In the present case, we need not reach the question whether the purpose for which heroin is introduced into a military installation is an essential element of the offense charged that must be fairly stated in the specification. In my opinion, the position of the Government, the defense counsel, and the accused at the trial constituted an amendment of the specification by stipulation to state that the heroin was introduced for the accused’s own use. Cf. United States v Solak, 10 USCMA 440, 444, 28 CMR 6, 10 (1959). As the accused consented to the procedure and pleaded guilty, he was not prejudiced. Accordingly, I agree that the Court of Military Review erred in setting aside the findings of guilty. As the specification was treated as multipli-cious at trial and the court did not change the sentence on review, I also agree that there is no need to return the case to the court for further action. Cf. United States v Aletky, 16 USCMA 536, 37 CMR 156 (1967).

For the reasons set forth in my separate opinion in United States v Alderman, 22 USCMA 298, 46 CMR 298 (May *35625, 1973), I find no error in the court-martial’s consideration of the accused’s previous conviction.

I join in affirming the disposition ordered by the United States Navy Court of Military Review.