
    UNITED STATES, Appellee v JACK J. LANE, Master Sergeant, U. S. Air Force, Appellant
    10 USCMA 241, 27 CMR 315
    No. 10,645
    Decided February 20, 1959
    
      Lieutenant Colonel Sam F. Garter and Captain Norman K. Hogue were on the brief for Appellant, Accused.
    
      Lieutenant Colonel Robert W. Michels and Major Fred C. Vowell were on the brief for Appellee, United States,
   Opinion of the Court

Robert E. Quinn, Chief Judge:

A general court-martial convicted the « accused of a number of specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. It imposed a sentence which included a dishonorable discharge and confinement at hard labor but made no provision for a reduction in grade. On the first appeal from that conviction to this Court, we held that the post-trial review was inadequate. United States v Lane, 9 USCMA 369, 26 CMR 149. A new review was had and the findings of guilty and sentence approved by the convening authority were affirmed by a board of review. The board of review noted that since the approved sentence included a dishonorable discharge and confinement, the accused was automatically reduced to the lowest enlisted grade in accordance with paragraph 126e, Manual for Courts-Martial, United States, 1951, as amended by Executive Order No. 10652, January 10, 1956, 21 FR 235. In United States v Simpson, 10 USCMA 229, 27 CMR 303, we held that the Manual provision is judicial in nature and that a reduction in grade effected pursuant thereto improperly increases the sentence adjudged by the court-martial. Consequently, the reduction in grade imposed upon the accused here is improper.

The record of trial is returned to The Judge Advocate General of the Air Force for action consistent with this opinion.

Judge Ferguson concurs.

Latimer, Judge

(dissenting) :

I dissent. My reasons for so doing are set forth at length in my concurring and dissenting opinion, United States v Simpson, 10 USCMA 229, 27 CMR 303, decided this day.  