
    UNITED STATES, Appellee v JAMES A. PETERS, JR., Private, U. S. Marine Corps, Appellant
    22 USCMA 348,
    46 CMR 348
    No. 26,877
    June 8, 1973
    
      Lieutenant Michael W. Boehm, JAGC, USNR, was on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel G. L. Bailey, USMC, was on the pleadings for Appellee, United States.
   Opinion of the Court

Per Curtam:

On his plea of guilty, the accused was convicted of unauthorized absence in excess of 30 days and two specifications of larceny; he was sentenced to a dishonorable discharge, confinement at hard labor for 18 months and forfeiture of pay and allowances. At trial, evidence of two previous convictions by summary court-martial was considered. The accused contends that both of the previous convictions were constitutionally invalid because he was unrepresented by counsel.

At one of the summary court-martial trials, the accused was sentenced to forfeiture of pay; as to this conviction, therefore, the claim of constitutional invalidity has no merit. United States v Alderman, 22 USCMA 298, 46 CMR 298 (May 25, 1973). At the other summary court-martial trial, the accused was sentenced to confinement; under Alderman, evidence of this conviction was inadmissible. It fairly appears from the trial judge’s remarks on the imposition of sentence that the accused's previous misconduct resulted in a more severe sentence than might otherwise have been adjudged. Reassessment of the sentence without consideration of the inadmissible evidence is, therefore, required. Accordingly, we return the record to the Judge Advocate General of the United States Navy for submission to the U. S. Navy Court of Military Review for further proceedings consistent with our disposition in United States v Alderman, supra.

Chief Judge Darden dissents for the reasons set forth in his separate opinion in United States v Alderman, supra.  