
    UNITED STATES, Appellee v THOMAS P. McALISTER, Airman Basic, U. S. Air Force, Appellant
    18 USCMA 532, 40 CMR 244
    No. 22,162
    August 22, 1969
    
      Colonel Bertram Jacobson and Major Clarence E. Powell were on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Robert W. Vayda and Major Donald B. Strickland were on the pleadings for Appellee, United States.
   Opinion of the Court

Ferguson, Judge:

Though several matters were presented in mitigation and extenuation, the president failed to draw the attention of the court-martial thereto in any manner while delivering his presentencing instructions. Such was error and, under the circumstances, prejudicial to the substantial rights of the accused. United States v Wheeler, 17 USCMA 274, 38 CMR 72; United States v Wysingle, 18 USCMA 314, 40 CMR 26.

The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Air Force. The Court of Military Review may reassess the sentence or order a rehearing thereon.

Chief Judge Quinn concurs.

Darden, Judge

(dissenting):

The mitigating matter on which this reversal is predicated consists of but two items, a favorable performance report on the accused and his unsworn statement made in mitigation. The latter is somewhat negative for, in addition to setting out his civilian and military background, the statement makes clear that the accused was once before tried by court-martial, convicted, and then sent to Amarillo Air Force Base, Texas, for rehabilitation. Later he served a six-month probationary period at McConnell Air Force Base, Kansas. The instant proceedings point out how short-lived his rehabilitation was. In short, I do not believe that the president’s failure to draw attention of the court-martial to this so-called mitigating evidence harmed the accused in any fashion, for had the court been so informed, I do not believe they would have lessened the punishment in favor of the accused. Accordingly, I would affirm the decision of the board of review.  