
    UNITED STATES, Appellee v JOHN DAVID FREELAND, Engineman Fireman, U. S. Navy, Appellant
    19 USCMA 455, 42 CMR 57
    No. 22,651
    May 22, 1970
    
      Lieutenant Martin A. Selzer, JAGC, USNR, argued the cause for Appellant, Accused. With him on the brief was Captain John N. Stafford, USMCR.
    
      Lieutenant Thomas J. Donegan, Jr., JAGC, USNR, argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel Charles J. Keever, USMC.
   Opinion of the Court

Quinn, Chief Judge:

Here, as in United States v Weatherford, 19 USCMA 424, 42 CMR 26 (1970), the question is whether defense counsel violated his responsibilities as counsel by making it apparent to the court members that the accused desired to be separated from the service, even with a punitive discharge, in preference to confinement. Defense counsel did not, as in Weatherford, argue that a bad-conduct discharge was an appropriate punishment, but he made the point clear by the answers he elicited from the accused, who testified under oath in connection with the sentence.

An examination of the record leaves no doubt that defense counsel acted in response to the accused’s considered desire. The accused had a history of unauthorized absence from December 7, 1968; he was substantially in debt; and he had no desire “to go back to duty,” notwithstanding the “bad effects” a punitive discharge could have on his “life later on.”

On the record, the present case is substantially like Weatherford. For the reasons set out in our opinion in that case, we affirm the decision of the United States Navy Court of Military Review.

Judge Darden concurs.

Ferguson, Judge

(dissenting):

I dissent.

Since I do not believe that defense counsel may, consistent with ethical principles, urge, or, by other means, impart to the court members his belief that his client should be punitively separated from the service, I must record my dissent in this case. For a further exposition of my thinking on this matter, see my dissent in United States v Weatherford, 19 USCMA 424, 42 CMR 26 (1970).  