U.S. v. Pineda, 54 M.J. 298

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a defense counsel may not ask for a punitive separation from the service in contravention of an accused’s wishes, and a military judge must make appropriate inquiries where a conflict exists between defense counsel’s request and an accused’s apparent wishes
2. military judge failed to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate where there was no indication on the record that appellant desired punitive separation

Trial Stages: Sentence and Punishment: Argument

1. a defense counsel may not ask for a punitive separation from the service in contravention of an accused’s wishes, and a military judge must make appropriate inquiries where a conflict exists between defense counsel’s request and an accused’s apparent wishes
2. military judge failed to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate where there was no indication on the record that appellant desired punitive separation
3. appellant was not prejudiced by military judge’s failure to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate; where the facts of a given case compel a conclusion that a bad-conduct discharge was reasonably likely, a new sentence hearing is not normally ordered; here, appellant implicitly acknowledged the reasonable certainty of a punitive discharge where he was convicted of numerous offenses reflecting his repeated abuse of government property entrusted to him

Trial Stages: Appeals: Harmless / Prejudicial Error

1. appellant was not prejudiced by military judge’s failure to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate; where the facts of a given case compel a conclusion that a bad-conduct discharge was reasonably likely, a new sentence hearing is not normally ordered; here, appellant implicitly acknowledged the reasonable certainty of a punitive discharge where he was convicted of numerous offenses reflecting his repeated abuse of government property entrusted to him