United States v. Campbell

HOLLAND, Judge

(concurring in the result):

In my view, trial counsel’s argument that the accused’s vessel was tasked with Search and Rescue (SAR) missions and that its crew would have been without a cook had the vessel been ordered to respond to a distress for some indeterminate period after his absence began exceeded the bounds of fair comment. There was no evidence in the record to support these arguments in aggravation of the offense, nor was there evidence to support the critical inference that the vessel was in a mission readiness status when the accused’s unauthorized absence began. I cannot agree that there was no fair risk that this purposeful argument did not affect the quantum of punishment adjudged. A sentence which includes a bad conduct discharge and a year of confine*852ment at hard labor for abandoning an enlistment contract at a time when there is no national draft obligation or national emergency in effect is too severe a punishment to permit that conclusion when, as in this case, there are no prior convictions to consider and the accused indicates a desire to complete his enlistment.

I concur in the principal opinion’s result, nevertheless, because the defense counsel’s failure to object waived any prejudicial error and because I do not believe that the trial counsel’s argument was so inflammatory as to trigger the trial judge’s obligation to act sua sponte in the absence of a timely objection by the defense counsel. U. S. v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956); U. S. v. Pinkney, 22 U.S.C.M.A. 595, 48 C.M.R. 219 (1974); and U. S. v. Mourer, 8 M.J. 258 (C.M.A.1980).

Judge ALCANTARA did not participate in the decision in this case.