martial a certain officer against whom charges had been made, but to separate him from the service as surplus and not give him a Reserve commission, the officer was discharged from his temporary commission as Lieutenant Colonel, AUS, effective 25 July 1947 and from his commission as First Lieutenant in the Reserve effective 13 August 1947. He was refused a certificate of honorable service, terminal leave, mileage and pay and allowances. In 1951 the officer applied to the Army Board on Correction of Military Records for relief and it subsequently directed that his records be corrected to show that his release from active duty and discharge without specification were in error and unjust. As part of the correction the officer was promoted to the rank of Colonel (terminal) effective 25 July 1947, was issued a certificate of service showing he had served honorably from 26 March 1941 to 25 July 1947, was relieved from active duty as Colonel, AUS, and discharged from his temporary commission as Colonel, AUS, effective 25 July 1947. He was further issued an Officer's Reserve Corps commission in the grade of Colonel, effective 25 July 1947. His request for a correction of his records to show restoration to active duty as of 25 July 1947 and other corrective action were denied. After the enactment of the Act of 25 October 1951 (65 Stat 655), which authorized the payment of monetary benefits accruing from the correction of military records, the officer applied to the Army Board on Correction of Military Records for monetary relief and was notified that he was entitled to a certain sum by reason of the correction of his records. The officer refused to accept the amount determined due him by the Army Board on Correction of Military Records and brought an action in the Court of Claims for accrued leave, for mileage, and pay and allowances to his home, and for his pay and allowances as a Colonel in the Army of the United States on active duty from 25 July 1947 to 19 June 1951, with interest. (The last item was denied him because of the failure of the ABCMR to correct his records to show him restored to active duty as of 25 July 1947.) Held: By his application for correction of his records, the officer invoked the jurisdiction of the Army Board on Correction of Military Records and was bound by its action unless the resulting action of the board was arbitrary or capricious or was in violation of some other substantive right. There is no allegation that the action of the board was arbitrary or capricious and there was no violation of any substantive right. On the basis of the board's findings the officer was entitled to a certificate of honorable service and certain monetary benefits. He was awarded both of these by reason of the board's decision, and the jurisdiction of the Court of Claims cannot be invoked. (Citing sec 207 of the Legislative Reorganization Act of 1946, 60 Stat 812, 837, 5 USC 191a; act of 25 Oct 1951, 65 Stat 655, 5 USC 191.) Gordon v. United States, Ct Cls No. 50395, 8 June 1954, 121 F Supp 625.

REHEARING

§ 1. In General.

§ 3. Court.

§ 7. Sentence and Punishment.

§ 1. In General

The language of the mandate from the Court of Military Appeals which reversed the original conviction of the accused contained the following: "AND IT IS FURTHER ORDERED, That this case be, and the same is hereby, remanded to The Judge Advocate General of the United States Air Force for proceedings not inconsistent with the opinion above. You, therefore, are hereby advised that such proceedings be had in said case as will cause the convening authority to order a rehearing, if such rehearing is practicable; and, such other and further proceedings as according to right and justice and the Uniform Code of Military Justice ought to be had, the said decision of the Board of Review notwithstanding." Held: The clear intendment of the Court of Military Appeals was to order a rehearing and not, as contended by the defense, to decree an uncertain, ambiguous and useless procedure. (See U. S. v. Biesak (No. 2676), 3 USCMA 714, 14 CMR 132.) ACM 4715, Burns (reh) (1954) 16 CMR 922.

The accused was convicted of forgery and absence without leave. The Court of Military Appeals affirmed the findings as to absence without leave, but reversed the findings as to the forgery and remanded "this case" "for proceedings not inconsistent with the opinion attached" and "for further review in accordance with the opinion of the Court, or as will cause the convening authority to order a rehearing, if such rehearing is practicable; and such other and further proceedings as according to right and justice and the Uniform Code of Military Justice ought to be had." At the rehearing findings of guilty of forgery were returned following a plea of guilty, and in assessing sentence the court considered both the forgery and the absence without leave.

Held that:

consideration at the second trial of the original findings of guilt under the charge of unauthorized absence was proper. Jurisdiction of the charge of unauthorized absence did not remain with the Court of Military Appeals since the mandate remanded "this case" and the word "case" refers to the entire proceedings against an accused. Further, the mandate refers to "the return of the record to the board of review" and clearly the charge of absence without leave was a part of the record to be returned. Moreover, the mandate's alternative for a further review by a board of review would be meaningless unless the charge of absence without leave had been transferred from the Court of Military Appeals since the only remaining findings from the original trial, those rendered under the charge of forgery, had been set aside as legally

erroneous and unless, therefore, the board of review could act with reference to the unauthorized absence charge literally no action was open to the board on the record. Furthermore, the Court of Military Appeals holds no warrant to determine the appropriateness of a court-martial sentence, although it has power to declare punitive action inappropriate as a matter of law. In the light of this limitation, no purpose would have been served by retention of jurisdiction over the unauthorized absence charge. (Citing U. S. v. Best (No. 4361), 4 USCMA 581, 16 CMR 155; U. S. v. Keith (No. 226), 1 USCMA 442, 4 CMR 34; U. S. v. Voorhees (No. 3226), 4 USCMA 509, 16 CMR 83.)

as a general proposition, the mere presence of one or some erroneous findings does not import prejudice affecting others not directly infected. Thus, an error which leads to the dismissal of one or some, but less than all, charges does not necessitate the disapproval of others. There is no logical reason why an error which requires a rehearing of charges, rather than dismissal, should exercise a greater effect on the validity of other findings. Accordingly, it is proper to affirm one of the findings of a courtmartial while setting aside another and the sentence and ordering a rehearing. (Citing UCMJ, Arts 59(a), 63(a), 66 (d) and 67(e); MCM 1951, par 92; U. S. v. Best (No. 4361), 4 USCMA 581, 16 CMR 155; U. S. v. Walters (No. 3734), 4 USCMA 617, 16 CMR 191; U. S. v. Adamiak (No. 4032), 4 USCMA 412, 15 CMR 412; U. S. v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; U. S. v. Patrick (No. 799), 2 USCMA 189, 7 CMR 65; U. S. v. Ward, 175 F2d 956; Gibson v. U. S., 149 F2d 381, cert den sub nom O'Kelley v. U. S., 326 US 724, 90 L ed 429, 66 S Ct 29.)

in cases like the present, the rehearing should proceed with respect only to those charges ordered reheard by reviewing authorities and then if the accused is found guilty thereunder the court's attention should be directed appropriately to the existence of other approved findings as to which he remains unsentenced. Thereafter, the tribunal will proceed to impose a sentence appropriate for both the offense or offenses of which the accused has been found guilty at the rehearing as well as for that or those as to which the findings of the first court were approved.

should the accused be found not guilty under the reheard charges the court-martial can and must impose a new sentence on the accused with reference to the approved findings carried forward from the initial trial. It was intended, in the event of a rehearing, that the entire case should return to the trial level. This nisi prius court was meant to act with reference to all charges under which a conviction had been returned by the original courtmartial, save those dismissed in the course of review, if any. By reason of UCMJ, Art 59 (a), this action at the rehearing is limited to the imposition of sentence as to those findings which were in no wise tainted by error at the original proceeding. But the circumstance that at the rehearing the accused is acquitted of all other charges does not imply the loss of power to resentence on the original findings.

-if the convening authority concludes that a rehearing is impracticable and he elects to dismiss the charges under which the erroneous findings were returned, he is not required to convene a court-martial for the purpose of reassessing sentence on the untainted findings in the absence of action on the part of the reviewing authorities setting aside, without limitation or qualification, the sentence returned by the court-martial.

- if the convening authority dismisses the tainted charges but desires to have a court-martial reassess the sentence solely on the basis of the findings deemed proper he may order a rehearing limited to the reassessment of the sentence. United States v. Field (No. 2210) 5 USCMA 379, 18 CMR 3.

Rehearing as appropriate remedy where an admission obtained without warning of rights is erroneously admitted in evidence, see CM 376162, Reid, EVID § 133.1.

§ 1.5. When proper to order.

Ordering rehearing on reversal of conviction because of arbitrary act of law officer in denial of a continuance, see United States v. Vanderpool, EVID § 165.7.

Ordering rehearing on reversal of conviction where evidence introduced after the trial raised a reasonable doubt as to the mental responsibility of the accused at time of the alleged offenses, see ACM 9112, Voight, DEFENSES $ 35.9.

§ 3.1. Generally.

§ 3. Court

The accused was originally tried before a special court-martial. A rehearing was ordered but before it took place the accused was alleged to have committed other offenses and the rehearing was ordered as a general court-martial as to the original charges plus the additional charges. Held: The rehearing before a general courtmartial was proper. The convening authority is not limited as to the quantity or quality of additional charges which he may include in a rehearing and there is no proscription as to the nature of the court he can award in such circumstances. In providing for a rehearing Congress did not envision an identity of proceedings. When the nature of the additional charge or charges is so serious as to require trial by general court-martial they should be so tried and any charges pending as a rehearing on a previous special court-martial should be included in the same trial provided the provisions of par 81d, MCM, 1951, are strictly complied with. This fully protects the rights of the accused. NCM 364, Kincaid (1954) 17 CMR 523.

§ 7.1. Generally.

§ 7. Sentence and Punishment

Upon rehearing the accused received a sentence which included a bad conduct discharge. In taking action upon the original trial and ordering the rehearing the convening authority stated that al

though the case involved a bad conduct discharge the record of trial was summarized at his direction because he had already determined from an oral report of the proceedings that a prejudicial error requiring disapproval had been committed and that summarization would save time and expense with no prejudice to the accused. Held: The imposition of a bad conduct discharge on the rehearing did not constitute imposition of punishment more severe than that which could legally have been imposed by the first court since the first court did not attempt to include a bad conduct discharge as part of a sentence in a proceeding not recorded verbatim but rather the summarization of the record was by order of the convening authority after he had already determined disapproval of the findings and sentence was required and a verbatim record would not contribute in any way to alter the factual situation upon which his action would be based. (Distinguishing U. S. v. Whitman (No. 2168) 3 USCMA 179, 11 CMR 179.) NCM 341, Keller (1954) 16 CMR 432.

The accused was sentenced by special court-martial to a bad conduct discharge. A rehearing was ordered and at the rehearing the trial counsel told the court it could not change the nature of the sentence and was limited to a bad conduct discharge or nothing. When the president announced the sentence on rehearing, he stated that in view of the fact that the proceedings were a rehearing and that the initial rehearing resulted in a sentence to a bad conduct discharge alone, the court was limited, by the law and by the interpretation of the law, to a choice of either no sentence or a sentence to a bad conduct discharge, and that in the opinion of the court, no sentence would constitute a gross miscarriage of justice and accordingly the accused was sentenced to be discharged with a bad conduct discharge. Held: The Uniform Code of Military Justice does not limit the court to the imposition of such punishment as is necessarily included within the original sentence; it requires only that the sentence adjudged on rehearing be not more severe than that originally imposed. Within the limits of its jurisdiction, a special court-martial can impose such sentences as reduction to an inferior or intermediate grade, reprimand or admonition, and restriction to limits. Any of these sentences is clearly less severe than a punitive discharge. Consequently, both trial counsel and the court erred in assuming that the court had no alternative except a bad conduct discharge or no punishment. (Citing U. S. v. Downard

(No. 266), 1 USCMA 346, 3 CMR 80; U. S. v. Sippel (No. 2689), 4 USCMA 50, 15 CMR 50; UCMJ, Art 63(b); UCMJ, Art 19; MCM, 1951, pars 15b and 76b(4).) [Brosman, J., concurring in the result, states that all punishments imposable by a court-martial must fall roughly under one or the other of five categories. The first of these is loss of life. The second, reputation, which is typified by punitive discharge. The third is loss of money and the fourth consists of loss of physical freedom. The fifth consists of loss of military grade. It is open to a court-martial to find punishments, if any, no more severe than that previously adjudged within each category, but its members may not go outside that category's limits. Applying this principle, he concurs in the result on the ground that there is a less