
    UNITED STATES, Appellee v RICHARD W. LANCE, Private, U. S. Marine Corps, Appellant
    17 USCMA 470, 38 CMR 268
    
      No. 20,754
    April 5, 1968
    
      Lieutenant Warren K. Morgens, USNR, was on the pleadings for Appellant, Accused.
    
      Captain R. S. Gasiorowski, USMCR, was on' the pleadings for Appellee, United States.
   Opinion

Kilday, Judge:

Appellant was arraigned before a general court-martial convened at Camp Pendleton, California, charged with larceny and unlawful entry, in violation of Articles 121 and 130, Uniform Code of Military Justice, 10 USC §§ 921 and 930, respectively. He pleaded guilty and was found guilty as charged. He was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for three years. The convening authority approved only so much of the sentence as provided for a dishonorable discharge, total forfeitures, and confinement at hard labor for twelve months. Thereafter, a board of review in the office of the Judge Advocate General of the Navy affirmed the findings and the sentence.

This Court granted review to consider the negotiated plea of guilty and the method used to determine its providence.

There is, in this case, a pretrial guilty plea agreement. The agreement includes a waiver by the accused of any speedy trial or due process issue. Such a waiver is void, being contrary to public policy. Prejudicial error may be the result. United States v Cummings, 17 USCMA 376, 38 CMR 174. However, where the accused is not restricted in the defense of his case, no prejudice stems from this error. United States v Pratt, 17 USCMA 464, 38 CMR 262. We are satisfied in this instance that the improper pretrial waiver was not of compelling force.

The accused, though tried separately, was one of several men who were arraigned raigned together. “Enmasse” arraignments under such circumstances are erroneous. United States v Pratt, supra. Nevertheless, for the same reasons there shown, the guilty plea in this ease appears clearly provident. There is then no prejudice.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs in the result.

Ferguson, Judge

(dissenting):

I dissent.

For the reasons set forth in my separate opinion in United States v Pratt, 17 USCMA 464, 38 CMR 262, I would reverse the decision of the board of review and order a rehearing.  