UNITED STATES, Appellee v. JAMES E. MOORE, Private First Class, U. S. Marine Corps, Appellant, 14 C.M.A. 418

Opinion of the Court Per Curiam: Convicted of numerous offenses in violation of the Uniform Code of Military Justice, the accused stands before us sentenced to a bad-conduct discharge (suspended), confinement at hard labor for six months, forfeiture of $55.00 per month for six months, and reduction. At the trial, his mental responsibility was reasonably placed in issue by the evidence, and the law officer instructed the court members with respect thereto.

Plowever, he included in his advice, as a governing test, that the accused could not be said to have been unable to adhere to the right if he “would not have committed the act if the circumstances were such that he could have expected immediate detection and apprehension.” Such instruction was prejudicially erroneous. United States v Jensen, 14 USCMA, 353, 34 CMR 133; United States v Jordan, 14 USCMA 393, 34 CMR 173, decided February 14, 1964. The question of mental responsibility, however, related only to the offenses set forth in Charges III through VI and the specifications thereunder.

As to the unauthorized absence offenses set forth under Charge I and the missing movement offense set forth under Charge II, the accused’s mental responsibility was not placed in issue, and the instructional error could not have affected the findings of guilty relating to the offenses. Accordingly, they may be affirmed. The findings of guilty of Charges III through VI and the specifications thereunder are set aside. 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 of review may reassess the sentence on the remaining findings of guilty or direct a rehearing on the charges set aside and the penalty.