United States v. Strachan

(dissenting):

I dissent. See my opinion in United States v Johnson, 18 USCMA 436, 40 CMR 148, decided this date.

Opinion of the Court

The issue in this case is controlled by our opinion in United States v Johnson, 18 USCMA 436, 40 CMR 148. In Johnson, we held the law officer erred to the substantial prejudice of the accused by failing to instruct the court that in voting on the proposed sentences, it should begin by first considering the lightest; until § sentence is *439adopted by the concurrence of the required number of members. Paragraph 766(2), Manual for Court's-Martial, United States, 1951. So, too, here. Reversal on sentence is required.

The decision of the board of review as to sentence is reversed. The record of trial is returned to the Judge Advocate General of the Army. A rehearing on sentence may be ordered.