
    UNITED STATES, Appellee v FRUTO ALICEA, Seaman Apprentice, U. S. Navy, Appellant
    19 USCMA 485, 42 CMR 87
    No. 22,870
    June 5, 1970
    
      Lieutenant Donald B. Brant, Jr., JAGC, USNR, was on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Charles J. Keener, USMC, was on the pleadings for Appellee, United States.
   Opinion of the Court

Darden,Judge:

The appellant stands convicted of escape from lawful confinement and two unauthorized absences. One absence without leave began in June 1967, while the two remaining offenses occurred in March 1968. The dates of these offenses made erroneous the action of the prosecution in introducing for sentencing purposes a record of Article 15 punishments. United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970). The sentence given the appellant by this general court-martial was less than the maximum approved in a pretrial agreement. In addition, the Article 15 misconduct is shown to be short unauthorized absences. Finally, there is also evidence of an earlier special court-martial conviction for an unauthorized absence. Taking the record as a whole, we cannot fairly say that Alicea has been harmed by the error here present. Accordingly, the decision of the Court of Military Review is affirmed.

Chief Judge Quinn concurs.

Ferguson, Judge

(dissenting):

I dissent for the reasons set forth in my separate opinion in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970).  