United States v. Gibson

Opinion

As the confinement imposed upon the accused was one-sixth that authorized by law, I am convinced that the evidence of previous convictions did not influence the members of the special court-martial to adjudge the sentence they did. Accordingly, the decision of the Court of Military Review is affirmed.

(concurring) :

I concur in the result for the reasons set forth in my separate opinion in United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 25, 1978).

(dissenting):

Although the 1-month confinement at hard labor which the appellant was sentenced to serve was only one-sixth of the maximum confinement imposable by this special court-martial, he was also awarded a bad-conduct discharge for a single specification alleging an absence without leave for 49 days. In this posture of the record, I am unable to state that the sentence might not have been different if the court had been aware that the evidence of previous convictions “had been unconstitutionally obtained.” United States v Tucker, 404 US 443, 448 (1972). See my separate opinion in United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 26, 1973).