United States v. Nelson

DECISION UPON REHEARING

In our original decision in this case, United States v. Nelson, 2 M.J. 277 (decided 27 August 1976), we found that the military judge erred in his sentencing instructions to the court when he neglected to advise the members that a bad conduct discharge was authorized only because the aggregate confinement, without substitution, totaled in excess of six months. Manual for Courts-Martial, 1969 (Rev.), paragraph 127e, Section B. We further found, however, that in the particular circumstances the accused was not prejudiced by the error.

*504Subsequently, the United States Court of Military Appeals disagreed with our finding that the error was nonprejudicial, reversed our decision, and directed we either order a rehearing or reassess an appropriate sentence which did not include a bad conduct discharge. Order No. 33,143, 29 Nov. 1976. In our decision on further review, we returned the record of trial to The Judge Advocate General, United States Air Force, for a rehearing on the sentence. United States v. Nelson (A.C.M. 24414 (f. rev.)), 26 January 1977.

The directed sentence rehearing was held on 5 April 1977. At that proceeding the accused was sentenced, by a military judge sitting alone as a special court-martial, to a bad conduct discharge, confinement at hard labor for sixty days and reduction to the grade of airman basic. The sentence was duly approved by the convening authority.

We have carefully considered the two errors assigned by appellate defense counsel respecting the post-trial review of the case and find them to be without merit. Neither require extended discussion.

The findings of guilty were previously affirmed. The sentence adjudged upon rehearing is accordingly

AFFIRMED.