
    UNITED STATES, Appellee v THOMAS FLOYD FJERMESTAD, Seaman Recruit, U. S. Navy, Appellant
    17 USCMA 287, 38 CMR 85
    No. 20,393
    November 17, 1967
    
      Major L. G. Bohlen, USMC, was on the pleadings for Appellant, Accused.
    
      Lieutenant Charles Freeland, USNR, was on the pleadings for Appellee, United States.
   Opinion of the Court

Ferguson, Judge:

The issue in this ease is whether the president of the special court-martial which tried the accused erred prej-udicially in failing to note that the inclusion of a bad-conduct discharge in the sentence was possible only because “the authorized confinement without substitution for such offenses is six months or more.” Manual for Courts-Martial, United States, 1951, paragraph 127c, section B. Our decision in United States v Yocom, 17 USCMA 270, 38 CMR 68, this day decided, governs the question.

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

Judge Kilday concurs.

Quinn, Chief Judge

(dissenting):

• In my opinion, there is no fair risk the instructional error prejudiced the accused. He was in the. service less than a year when he committed a series of offenses. In a previous conviction he was sentenced to a bad-conduct discharge for a number of offenses, including several unauthorized absences. The discharge was remitted by the supervisory authority on November 22, 1966. Less than three weeks later, the accused again absented himself without authority. The two unauthorized absences for which he was tried here were terminated by apprehension by civil authorities in distant cities. The accused himself acknowledged that the reason for the second of his two absences did not con-constitute “a very good excuse.”

I would affirm the decision of the board of review.  