United States v. Rodriguez

Opinion of the Court

Appellant pleaded guilty to, and was convicted of, wrongful possession, sale, and use of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. As approved, his sentence includes a dishonorable discharge and confinement at hard labor for five years.

During the sentence proceedings, the court-martial was informed that smoking marihuana was “an old thing” for the accused because he had been doing it since he was twelve years of age and “everybody seems to do it where he comes from.” No instruction was given as to the limited purpose for which the court could consider the evidence of offenses not charged. The omission was error. United States v Gewin, 14 USCMA 224, 34 CMR 4; United States v Turner, 16 USCMA 80, 36 CMR 236. Although the sentence imposed by the court-martial was reduced by the convening authority on the initial review, the effect of the instructional error on the sentence was not considered. Corrective action, therefore, is still required. Cf. United States v Peters, 8 USCMA 520, 25 CMR 24.

The decision of the board of review as to the sentence is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for submission to the board of review for reconsideration of the sentence, in light of this opinion.