
    UNITED STATES, Appellee v RICHARD L. McILVEEN, Private, U. S. Marine Corps, Appellant
    No. 29,346
    March 14, 1975
    
      Lieutenant Gordon S. Wright, JAGC, USNR, was on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel P. N Kress, USMC, and Lieutenant Thomas L. Earp, JAGC, USNR, were on the pleadings for Appellee, United States.
   OPINION OF THE COURT

Per Curiam:

Tried by a special court-martial at the Marine Corps Air Station, Santa Ana, California, the appellant was convicted, contrary to his pleas, of the willful disobedience of an order from, disrespect to, and an assault and battery upon, a non-commissioned officer. Those findings together with the court’s adjudged sentence to a bad-conduct discharge, confinement at hard labor for 5 months, and forfeitures of $200 per month for 5 months remain unchanged throughout review below.

In his review of the case at the supervisory authority level, the staff judge advocate incorrectly stated that the appellant’s provident plea of guilty established his guilt of the disrespect offense beyond a reasonable doubt. In view of the fact that the appellant had actually made a timely withdrawal of that guilty plea and had pleaded not guilty to that offense, such erroneous information constituted prejudicial error. See United States v Parks, 17 USCMA 87, 37 CMR 351 (1967); United States v James, 1 USCMA 379, 3 CMR 113 (1952).

The decision of the U. S. Navy Court of Military Review is reversed. The case is returned to the Judge Advocate General of the Navy for submission to the Court of Military Review, which may set aside the findings of guilty on that specification and reassess the sentence or order a new review and action.

Judge Quinn did not participate in the decision of this case.  