ATTACHMENT 2
FORMAT FOR ASSIGNMENT OF ERRORS AND BRIEF ON BEHALF OF ACCUSED (RULE 16)
| UNITED STATES | |
| v. |
|
| Private (E–1) JOHN |
|
| RICHARD DOE, SSN |
|
| 000–00–0000, U.S. |
|
| Army, Replacement | Case No. ________ |
| Detachment, 300th | Tried at________, |
| Administration | on__________ |
| Company, 300th | before a G.C.M. |
| Infantry Division, Fort | appointed by |
| Gordon, Georgia 31093 | __________________. |
to the honorable, the judges of the united states army1 court of military review
On ______, the accused was tried by general court-martial. The charges and specifications upon which he was arraigned, his pleas, and the court-martial's findings were as follows:
| Chg | Art UCMJ | Specs | Summary of Offenses | Pleas | Findings |
|---|---|---|---|---|---|
| I | 86 | 1 | AWOL (28 Jan ____ –28 Feb____) | G | G |
| 2 | AWOL (3 Mar ____ –3 Apr____) | G | G | ||
| II | 121 | Larceny of $100.00, property of U.S. Government | NG | G |
He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to the lowest enlisted grade. The convening authority approved only so much of the sentence as provides for bad conduct discharge, forfeiture of $50.00 pay per month for 6 months, and reduction to the lowest enlisted grade.
Statement of Facts
Those facts necessary to a disposition of the assigned errors are set forth in the argument, infra.2
Errors and Argument
I
SPECIFICATION 1 OF CHARGE I FAILS TO STATE AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE
The allegation of absence in Specification 1 of Charge I fails to indicate that the absence was "without proper authority." The United States Court of Military Appeals has held that such an omission is fatal to the legal sufficiency of the specification. United States v. Schultz, 16 U.S.C.M.A. 488, 37 C.M.R. 108 (1967); United States v. Fout, 3 U.S.C.M.A. 565, 13 C.M.R. 121 (1953).
WHEREFORE, the findings as to Specification 1 of Charge I should be set aside and the sentence reassessed on the basis of the remaining charges and specifications.
II
THE MILITARY JUDGE FAILED TO TAILOR HIS INSTRUCTIONS ON SENTENCE TO THE MATTERS PRESENTED IN MITIGATION AND EXTENUATION
There was extensive evidence presented on behalf of accused to establish his proper exemplary conduct in civilian and military life. (R. 108–133). The military judge limited his instructions on sentence to the maximum authorized punishment and the voting procedure.
In United States v. Wheeler, 17 U.S.C.M.A. 274, 38 C.M.R. 72 (1967), the failure of the military judge to tailor the instructions on sentence to the evidence presented in mitigation and extenuation was held to require a rehearing on sentence.
WHEREFORE, the sentence should be set aside and a rehearing authorized thereon.
Sentence Appropriateness
Accused is an 18-year old first time offender (Post-trial Review, p. 3) and has sincerely urged his restoration to duty. (R. 100). His immediate superiors have expressed their willingness to have accused return to his organization. (R. 110).
WHEREFORE, only so much of the sentence as provides for forfeiture of $50.00 pay per month for 6 months, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade should be approved by this Honorable Court.
Date:__________
JOHN C. SMITH, Esq.
1 Act Street
Union, New Jersey 07083
ALBERT JONES
Captain, JAGC
Appellate Defense Counsel
HARRY ARNOLD
Colonel, JAGC
Appellate Defense Counsel
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was mailed or delivered to appellate Government counsel on the ________ day of ______________, 19__.
________________________
Name
________________________
Address
1 Use Navy-Marine Corps, Air Force, or Coast Guard as the case may be.
2 Where a statement of facts generally applies to all of the assigned errors, it may be set forth here.
Change of Name
United States Court of Military Appeals changed to United States Court of Appeals for the Armed Forces by section 924(a)(1) of