influence of intoxicants, to a dangerous complex and the offenses of which he was convicted of a serious nature. NCM 366, Parrack (1954) 17 CMR 531.

§ 23.1. Generally.

§ 23. Dishonorable Discharge

The accused was sentenced to dishonorable discharge, confinement for one year and six months, and forfeiture of $50 per month for a like period. The staff judge advocate determined that the intent of the court in adjudging partial forfeitures was to permit continuance of a Class Q allotment. He concluded that accrual of pay would be terminated under the Act of 4 March 1915, ch 143, sec 1, 38 Stat 1065, 10 USC 876, which provides that pay and allowances shall not accrue to a soldier under sentence of dishonorable discharge during such period as the execution of the sentence of discharge may be suspended. Also par 80541, AFM 173-20, 1 July 1952, provides that pay and allowances do not accrue to members in confinement under suspended sentences of dishonorable discharge. In view of the foregoing, he recommended that the intent of the court be effectuated by mitigating the dishonorable discharge to a bad conduct discharge. However, the convening authority approved the sentence as adjudged and provided that the partial forfeitures should apply to pay becoming due on and after the date of his action. Held: There is no reason to mitigate the sentence since it is not inherently inconsistent and its legal effect is that intended by the court. As used in the 1915 act, the words "execution of the sentence of discharge may be suspended" refer to a sentence including a suspended dishonorable discharge which is otherwise executable after completion of appellate review. Also, the language of par 80541, AFM 173-20, that pay and allowances do not accrue to members in confinement under suspended sentence of dishonorable discharge is correct but limited in its accuracy to those sentences wherein the entire sentence has been approved and ordered executed and appellate review completed with execution of the dishonorable discharge suspended. It is only then that the 1915 act is operative preventing accrual of pay. The language is objectionable insofar as it may be interpreted to cover initial action by the convening authority approving a sentence and suspending execution of the dishonorable discharge because the suspended dishonorable discharge portion of the sentence is tentative and is not effective as a sentence until completion of appellate review and order of execution of the sentence as a whole as approved and suspended. Furthermore, although it may amount to no more than a bookkeeping entry, there is a difference between applying forfeitures and executing them. Application can commence on the date the convening authority acts even though execution must be deferred until completion of appellate review. (Citing U. S. v. Smith (No. 2068), 3 USCMA 336, 12 CMR 92; MS Comp Gen B-119220, 19 Apr 1954, 4 Dig Ops No. 1, SENT & PUN $ 57.9.) In view of the foregoing the sentence is not inherently inconsistent. Its provisions are appropriate, clear and definite. Consequently, the convening authority's action applied the forfeitures

against the pay accruing to the accused as specified, but such forfeitures could not become legally effective until completion of appellate review. The accused, therefore, continues to accrue pay with forfeitures being applied against such accruals until such time as the affirmed sentence is ordered executed. When the dishonorable discharge is executed it will, in effect, nullify the provisions for forfeiture, but during the period required for appellate review resulting in an affirmed sentence, the accused continues to accrue all pay and allowances subject to the application of forfeitures from the date of the initial action of the convening authority to the date of the order of execution. (Citing MS Comp Gen B-119220, 19 Apr 1954, 4 Dig Ops No 1, SENT & PUN § 57.9; MCM, 1951, par 126h (1) (2); CM 357553, Casteel, 6 CMR 447; Legal and Legislative Basis, MCM, 1951, p 180; Sec 40301, AFM 173-20; U. S. v. Smith (No. 2068), 3 USCMA 336, 12 CMR 92.) Nor is there any indication of an intent on the part of the court from which it can be determined that the sentence is inconsistent. It is true that where partial pay is forfeited the residue may accrue to the benefit of the accused so as to furnish the amount for his contribution to a Class Q allotment, but it would be unrealistic to conclude that a court's intention in assessing partial forfeitures is inconsistent with another part of the sentence involving a punitive discharge merely because the 1915 act or the execution of the discharge may terminate accrual of pay before the end of the period for which forfeitures were assessed. If the court expresses a primary intent, some sentences may be determined to contain inconsistent factors. However, in the absence of such an expression, it must be assumed that the intent of the court was that each part of the sentence be given its normal effect commensurate with each other part and that no part be favored. In this case the only intent discernible is that the accused shall suffer certain withholdings from accrued pay for a specified period so long as he is, in the exercise of appellate procedure, permitted to remain in a status where pay accrues. Any other intent would be pure speculation and result in elevation of one part of the sentence to an importance superior to other parts. (Cf. ACM 9012, Mason, 16 CMR 795; ACM 8758, Robinson, 16 CMR 766; U. S. v. Flood (No. 377), 2 USCMA 114, 6 CMR 114.) ACM 9444, Forister (1954) 18 CMR 541.

Dishonorable discharge imposed by second court-martial after execution of a bad conduct discharge under prior sentence as ineffective, see Op JAGAF 1954/18, CRT-M § 49.1.

§ 25.1. Generally.

§ 25. Bad Conduct Discharge

The sentence of the accused included a bad conduct discharge. The record showed that during the trial there was a conference between the president and the trial and defense counsel and that this conference was not reported in the record of trial. Held: The failure to record the conference between the president and counsel is prejudicial to the accused. The punitive discharge cannot stand without the support of a verbatim record and that portion of the

sentence is illegal. (Citing U. S. v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179.) Although the Manual does not specifically provide for either in-court conferences or out-of-court hearings in special courts-martial, if such are held, they must be fully recorded, transcribed, and made a part of the record so that there will be a complete record of the proceedings. NCM 319, Mandrell (1954) 16 CMR 378.

A provision in a sentence for a bad conduct discharge is erroneous where the record reveals that conferences were held between the president and counsel during the examination of a witness and such conferences were not reported verbatim or in substance in the record of trial. (Citing NCM 319, Mandrell, 16 CMR 378.) NCM 332, Marksbary (1954) 16 CMR 409.

The accused was found guilty of larceny of three shirts of a total value of $7.50 and was sentenced to be confined at hard labor for three months, to forfeit $55 per month for three months, and to be reduced to the grade of private and to be discharged from the service with a bad conduct discharge. The evidence showed that he removed the shirts from a clothesline, kept them in his locker overnight, and then took them to the laundry. He gave as his reason for the theft the fact that he wanted to have two sets of shirts. Held: The sentence was not inappropriate in that it was too severe. The reason given by the accused for the theft, since it was accompanied by no indication of financial difficulties, entirely removes the incident from within the purview of petty pilfering and elevates the offense to larceny solely for the betterment of self in derogation of the rights and interests of his shipmates. As such it is an example of the type of offense wielding a demoralizing influence which necessitates invoking the policy against retention in the service of thieves. NCM 344, Jennings (1954) 17 CMR 457.

In open court a discussion took place between a court member and the defense counsel relative to some financial obligations incurred by the accused. The court then closed and later reopened to announce the sentence which included a bad conduct discharge and forfeiture of $30 per month for six months. Following the announcement of the sentence and just before announcing adjournment of the court the president stated that during the period while the court was closed the trial counsel and the defense counsel checked at the pay office in matters concerning the accused's pay. Held: The accused was not prejudiced by imposition of a punitive discharge based on a record which was not verbatim. Obviously, both counsel checked at the pay office on extenuating matters relating to the accused's financial obligations discussed by the defense counsel in open court and clearly the defense counsel succeeded in convincing the court that forfeitures should not exceed $30 per month in order that the accused might have enough money to honor his financial commitments. Thus, the record is sufficiently complete to permit the board of review to determine with reasonable safety the substance and sense of the matters omitted. The transcript is sufficiently complete to present

all material evidence bearing on all issues and other procedural incidents so that it may be concluded that minimal standards have been met. (Citing U. S. v. Nelson (No. 2760), 3 USCMA 482, 13 CMR 38.) Held also: The absence of the accused from the unrecorded conference between the court and both counsel does not constitute prejudicial error. Procedural matters of this nature, particularly where they are intended to benefit the accused and do benefit him eventually, may properly be conducted by accused's counsel and the conduct of the latter will bind the accused. (Citing U. S. v. Ransom (No. 4107), 4 USCMA 195, 15 CMR 195; U. S. v. Cambridge (No. 1850), 3 USCMA 377, 12 CMR 133.) NCM 354, Stuart (1954) 17 CMR 486.

At the trial of the accused by a special court-martial he was represented by a non-lawyer. Upon conviction he received a sentence which included a bad conduct discharge. The record of trial contained an entry that due to the failure of the mechanical recording instrument the testimony of one of the witnesses was not recorded but that the prosecution and the defense with the consent of the accused agreed that the narrative following the entry was a true and accurate reconstruction of his testimony. Following the entry was a narrative statement signed by the trial counsel, the defense counsel and the accused. The rest of the record was verbatim. Held: The rule that whenever waiver of a substantial right is involved is must appear that the waiver is informed and intelligent does not mean that there can be no waiver if the defense counsel at a special court-martial is a non-lawyer. However, in the instant case it is unnecessary to determine whether or not there can be a waiver of the statutory requirement of a complete record before a bad conduct discharge can be imposed since there is a distinction between a record which must be verbatim and one which must be complete and in the instant case there is no contention that the record was in any respect incomplete. In fact, since the defense counsel did not act under par 82e, MCM, 1951, which provides that if the defense counsel discovers errors or omissions in the record of trial he should suggest to the trial counsel appropriate changes, nor did he avail himself of his right under UCMJ, Art 38(c), to forward for attachment to the record a brief of such matters as he felt should be considered on review, it can be assumed that the record is complete. (Citing U. S. v. Welch (No. 196), 1 USCMA 402, 3 CMR 136; U. S. v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179; U. S. v. Nelson (No. 2760), 3 USCMA 482, 13 CMR 38; U. S. v. Self (No. 2729), 3 USCMA 568, 13 CMR 124; NCM 212, Cook, 10 CMR 570.) Further, the entry made and agreed to by both counsel and signed by both is equivalent to a stipulation as to the testimony of the witness. Stipulations are permitted and do not make the record so defective that it cannot support a sentence with a punitive discharge. (See U. S. v. Cambridge (No 1850), 3 USCMA 377, 12 CMR 133.) NCM 378, Garza (1954) 18 CMR 415.

Imposition of bad conduct discharge on rehearing where record of original trial was summarized at the direction of the convening authority, see NCM 341, Keller, REHEAR § 7.1.

Convening authority's approval of a bad conduct discharge based on belief that he was required to approve by Secretary of the Navy Instructions, see United States v. Doherty, supra, § 11.3.

§ 25.1. Generally.

II. PARTICULAR SENTENCES

§ 25. Bad Conduct Discharge

Upon conviction of escape from confinement, wrongful appropriation of a motor vehicle and three days absence without leave, the accused received a sentence which included a bad conduct discharge. There was evidence that shortly before the offenses in the instant case the accused had committed another offense of absence without leave, that before his entry into the service he had run away from several private schools, that he had blackouts and behavior akin to fugue states and that there was a history of epilepsy in his family. Held: Evidence of a mental or neurological condition which, though not sufficient to raise a reasonable doubt as to legal sanity, nevertheless shows a diminished ability to adhere to non-punishable conduct, must be considered upon the question of the correctness of the sentence. (Citing MCM, 1951, par 123; cf. U. S. v. Cavallaro (No. 2774) 3 USCMA 653, 14 CMR 71.) Under the circumstances a bad conduct discharge, which would separate the accused from the service in order to punish him for his acts, is not a correct punishment. An administrative rather than a punitive form of separation would be proper. CGCMS 20122, Block (1955) 18 CMR 458.

A special court-martial imposed a sentence upon the accused which included a bad conduct discharge. At the trial the machine recording testimony failed during the examination of one of the prosecution witnesses and the bulk of this witness' testimony was set forth in the form of a summary. Held: The failure of the record to contain the full verbatim testimony of the witness was not an error fatal to the accused's conviction. However, the bad conduct discharge portion of his sentence must be disapproved. A complete record as required by UCMJ, Art 19, need not be a verbatim record so long as it contains a full account of the substance of the testimony. However, par 83a, MCM, 1951, goes farther than the Code in expressing a requirement for a verbatim transcript of all proceedings in open court if a bad conduct discharge is adjudged and the more stringent rule of the Manual must be complied with for it is a demand which was within the authority of the President to make as a condition to imposing a bad conduct discharge. (See U. S. v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179; CGCMS 19790, Mendoza, 11 CMR 659; cf. NCM 378, Garza, 18 CMR 415.) CGCMS 20155, Weston (1955) 18 CMR 467.

§ 27.1. Generally.

§ 27. Dismissal

Propriety of determining appropriateness of dismissal by consideration of whether enlisted man would receive a bad conduct discharge for same offenses, see United States v. Goodwin, infra § 59.1.