United States v. Grundy

DECISION ON FURTHER REVIEW

Our decision of 20 June 1975 was vacated by the Court of Military Appeals and remanded to us with directions “. . .to hold further proceedings in abeyance pending this Court’s diposition of the issue granted in United States v. McCarthy, Docket No. 30560, 2 M.J. 26.” That case was decided on 24 September 1976.

In our prior decision, we set aside the findings as to the first specification of the charge due to error and we adhere to that position for the reasons enumerated in our opinion at 50 C.M.R. 791 (A.C.M.R. 1975).

The remaining specification alleges an off-post possession of heroin with intent to distribute. Our review of the record demonstrates amply that this case is squarely within the functional pattern decisive in *558United States v. McCarthy, supra and United States v. Zorn, 2 M.J. 1012 (A.C.M.R. 21 October 1976) in that all the relevant details save that of the actual sale took place on post. The sentence moots any apparent problem in the way this offense was charged.

The finding of guilty of Specification 1 of the Charge is set aside and that charge is dismissed. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the above-indicated error and the entire record, the Court affirms the sentence.