
    UNITED STATES, Appellee, v. Private (E-2) Tony R. MARCOTT, SSN [ XXX-XX-XXXX ], United States Army, Appellant.
    SPCM 13784.
    U. S. Army Court of Military Review.
    13 Sept. 1979.
    Colonel Edward S. Adamkewicz, Jr., JAGC, Major Benjamin A. Sims, JAGC, Captain Willard E. Nyman, III, JAGC, Captain Richard E. Connell, JAGC, Captain R. Wade Curtis, JAGC, and Captain Terrence L. Lewis, JAGC, were on the pleadings for appellant.
    Colonel Thomas H. Davis, JAGC, Lieutenant Colonel R. R. Boiler, JAGC, Captain Douglas P. Franklin, JAGC, and Captain Rolland S. Roup, JAGC, were on the pleadings for appellee.
    Before JONES, CLAUSE and LEWIS, Appellate Military Judges.
   OPINION OF THE COURT ON FURTHER REVIEW

JONES, Senior Judge:

On 7 August 1979 this Court affirmed the conviction of the appellant for five specifications of larceny. Unknown to the Court, the appellant had died on 20 June 1979 of a self-inflicted gunshot wound. The appellant was on excess leave awaiting discharge at the time.

Appellate defense counsel seek abatement of the proceedings and dismissal of the charges. Government counsel do not oppose such action.

In Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), the Supreme Court stated that the abatement of proceedings due to death of an accused was not “free from ambiguity.” The Court discussed whether only the appeal itself should be abated or whether the entire cause of action should be abated, depending on whether the death occurred during the pendency of a discretionary appeal such as certiorari or during an appeal as a matter of right. The Court determined that no distinction should be made in the action to be taken and that in both instances all proceedings should be abated from their inception.

Later in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), the Supreme Court reversed itself where death occurred during discretionary review and dismissed only the petition for certiorari. The Court specifically overruled Durham to the extent it was inconsistent with Dove. Apparently the Court now agrees with Justice Blackmun’s dissent in Durham, and makes a distinction as to whether the death occurred before or after completion of the appellate process to which the accused was entitled as a matter of right.

In the instant case the accused died before the mandatory appeal to this Court had been completed. Thus, we conclude that because this appeal under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, was a matter of right and not discretionary, we must abate the proceedings from their inception.

The action of this Court in affirming the findings and sentence on 7 August 1979 was a nullity. The findings of guilty and the sentence are set aside. The charges are dismissed.

Judge CLAUSE and Judge LEWIS concur. 
      
      
         United States v. Marcott, 7 M.J. 971 (A.C.M.R. 1979).
     