
    UNITED STATES, Appellee v EARL W. RILEY, Private, U. S. Marine Corps, Appellant
    20 USCMA 145, 42 CMR 337
    No. 23,373
    November 13, 1970
    
      Captain R. O. Kellam, JAGC, USN, and Captain Michael J. Levin, USMCR, were on the pleadings for Appellant, Accused.
    
      Commander Michael F. Fasanaro, Jr., JAGC, USN, was on the pleadings for Appellee, United States.
   Opinion of the Court

Per Curiam:

This special court-martial was convened under orders of the Commanding Officer, Student Company, Schools Battalion, Marine Corps Base, Camp Pendleton, California.

The convening authority in this case is the same as in United States v Greenwell, 19 USCMA 460, 42 CMR 62 (1970). Since in Greenwell we held that he was without authority to convene a court-martial (Article 23, Uniform Code of Military Justice, 10 USC § 823), the Government concedes that the proceedings in this case should be declared a nullity. We agree. Cf. United States v Ortiz, 15 USCMA 505, 36 CMR 3 (1965), rehearing denied, 16 USCMA 127, 36 CMR 283 (1966).

In view of our action in this instance, we need not consider the other assignments of error since they should not recur when the case is retried.

The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A new trial may be ordered before a properly appointed court-martial.  