
    UNITED STATES, Appellee v CLAYTON GUY, Jr., Sergeant, U. S. Army, Appellant
    17 USCMA 49, 37 CMR 313
    No. 19,936
    May 19, 1967
    
      Colonel Daniel T. Ghent, Major David J. Passamaneck, and Captain Raymond A. DiLuglio were on the pleadings for Appellant, Accused.
    
      Colonel Peter S. Wondolowski, Lieutenant Colonel David Rariek, and Major John F. Webb, Jr., were on the pleadings for Appellee, United States.
   Opinion of the Court

PER Curiam :

Appellant was convicted, on his plea of guilty, of willful disobedience of a lawful command by a superior officer, in violation of Article 90, Uniform Code of Military Justice, 10 USC § 890, and sentenced to dishonorable discharge, confinement at hard labor for one year, and accessory punishments.

Two issues are presented for our consideration. The first concerns the effect of placing the accused under oath in the out-of-court inquiry into the providence and voluntariness of the plea of guilty. We disapproved the procedure in United States v Simpson, 17 USCMA 44, 37 CMR 308, but determined that the record of trial disclosed no possibility of prejudice to the accused. Scrutiny of the record in this case requires the same conclusion.

The second question deals with a ruling by the law officer excluding, as “an invasion of the province of the court” in regard to the sentence, testimony by defense witnesses, who had served with the accused in combat, that they would be willing to serve again with him in such situations, notwithstanding his conviction. In United States v Robbins, 16 USCMA 474, 37 CMR 94, we held a ruling to this effect was error. Considering the nature of the offense, and the other evidence in mitigation, there is a fair risk the accused was prejudiced by the erroneous ruling.

The decision of the board of review as to the. sentence is set aside. A rehearing thereon may be ordered.  