
    UNITED STATES, Appellee v KENNETH A. GORDON, Seaman, U. S. Navy, Appellant
    18 USCMA 611, 40 CMR 323
    
      No. 22,270
    September 26, 1969
    
      Captain Frank A. Nelson, JAGC, USN, and Captain Jeffery W. Maurer, USMC, were on the pleadings for Appellant, Accused.
    
      Lieutenant Colonel Charles J. Keever, USMC, and Lieutenant Anthony A. Derezinski, JAGC, USNR, were on the pleadings for Appellee, United States.
   Opinion of the Court

PER CURIAM:

A special court-martial convicted the accused of failing to obey a superior commissioned officer, willful disobedience of a noncommissioned officer, sitting down on post, and violation of a ship’s order by wearing tennis shoes instead of black shoes while standing bow sentry. The court sentenced the accused to confinement at hard labor for six months, reduction to pay grade E-l, and a bad-conduct discharge. All of the offenses except the last were set aside by the supervisory authority; he modified the sentence by reducing the confinement to one month.

On further review, a Navy board of review noted that, under the Table of Maximum Punishments, Manual for Courts-Martial, United States, 1969, section A, paragraph 127c, footnote 5, the maximum punishment for the approved offense did not include a punitive discharge. However, a majority of the board of review concluded that under section B, Manual, supra, it could approve the bad-conduct discharge as additional punishment because the accused had two previous convictions. Member Faw dissented. In his opinion, dismissal of the “three most serious offenses constituted . . . radical surgery” as to the findings of guilty and “the pettiness” ,of the remaining offense presented a fair possibility that the court-martial might not have added a bad-conduct discharge to the sentence on the basis of the accused’s previous misconduct. We agree with those views. United States v Voorhees, 4 USCMA 509, 531, 16 CMR 83; United States v Kowert, 7 USCMA 678, 23 CMR 142.

The decision of the board of review as to the sentence is reversed, and the sentence is set aside. A rehearing thereof may be ordered.  