separate and distinct offenses. The derelictions charged, although supported by related evidence, are also individual offenses. There was, therefore, no improper duplication in charging accused with having entered into an unlawful agreement to misappropriate the vehicle and with the actual misappropriation thereof, nor in the two specifications of conspiracy." * "Misappropriating means devoting to an unathorized purThe misappropriation of the property or money need not be for the benefit of the accused."1 pose. "The appropriation, however, need not be for the party's own benefit, but may be resorted to for a friend or for the accommodation of a person interested with officer in some business.' There was sufficient substantial evidence from which the court could reasonably infer that the vehicle in question was used for an unauthoried purpose, viz, transporting, from an unauthorized pick-up situs at a "civilian place", boxes of merchandise (pencils) neither owned nor requisitioned by the United States, nor authorized by competent authority to be transported in a Government vehicle.18 Charges laid under Article of War 95, (Charge II), have a different basis entirely from those pleaded under Article of War 96 (Charge III). Therefore, the assertion that acquittal of one vitiates the other cannot be sustained. The shipment of such a vast quantity of pencils, as the record reveals, participated in by applicant, cannot be reconciled with the contention of an individual non-business transaction as urged by Cohan in arguing for exculpation from the charge of conspiracy wrongfully to engage in business; moreover, this act was properly coupled with previous similar ones tending to establish an intention to pursue the practice of engaging in the business of illegal transportation of personal goods in violation of the circular pleaded, and contrary to good order and military discipline in the 15 U.S. v. Rabinowich, 238 U. S. 78, 85, hn 2; Heiks v. U. S., 227 U.S. 131, 144, hn 5. It is the usual practice, however, in military justice in cases of this nature to limit the sentence to one appropriate for the most serious of the specifications alleged. 16 Subparagraph 150i of the Manual for Courts-Martial, U. S. Army, 1928. 17 Winthrop's Military Law and Precedents (2d Ed. 1920 reprint) 708; 3 Bull JAG 236, 237, sec. 452 (17). 18 CM 312273, Mascarella (1946), 62 BR 55, 58, CM 279359, Biggerstaff (1945), 52 BR 180, 181; CM 243287, Poole, (1944), 27 BR 321, 323-326. In the two cases cited by applicant on this point (CM 296630, Siedentop, 58 BR 191, 197, and CM 307018, Showalter, 60 BR 37, 44) the facts are distinguished from the instant ones in that in those cases there was no deviation from the authorized mission and route as in the case now considered (where the non-authorized goods were loaded at an unauthorized location); CM 249009, Pamberton, 32 BR 17, 21; CM ETO 11838, Austin, 24 BR ETO 325, 329; CM 316750 Ortiz-Aponte, 66 BR 1, 7-8; cf. Charbennier v. U. S., 45 F. 2d 166, 172, hn 7, 8, (D.C. E.D.S.C., 1929). 19 McRae v. Henkes, 273 F. 108, 112, hn 3 (8th Cir. 1921), cert. den. 258 U.S. 624. cf. Dunn v. U. S. 284 U. S. 390, 393. area there being policed and under the difficult civilian economic conditions with which the Army then was coping. Thus from close examination of the present contentions of applicant, it would appear that when carefully analyzed, they are found to be no more than "ingeniously assembled shadows"." The multiple complaints stress matters of overlegalistic technicality which do not go to the basic justness of the trial nor raise substantial questions of prejudicial error or innocence of the accused. * Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied. E. M. BRANNON The Judge Advocate General JAGY CM 230531, 279864_ MEMORANDUM OPINION 23 August 1950 SUBJECT: Application for Relief under Article of War 53 in the Case of James K. Grimlan, formerly Private, 6287666, tried by court-martial under the name of Kenneth L. Grimmer, 18005321, alias Robert K. Grimmer, 17076826 (CM 230531), and subsequently tried by court-martial under his true name, James K. Grimlan (CM 279864). The applicant was tried by general court-martial at Fort Riley, Kansas, on December 22, 1942, under the name of Kenneth L. Grimmer, alias Robert K. Grimmer, and was found guilty as follows: of the improper use of a government vehicle, and larceny of property of the value of $18.38, in violation of Article of War 94; breaking arrest and escape from confinement in violation of Article of War 69; two specifications of desertion in violation of Article of War 58; fraudulent enlistment and five specifications of utterance of fraudulent checks in violation of Article of War 96; absence without leave in violation of Article of War 61; and unlawful entry to commit a larceny and the forgery of a writing of a private nature in violation of Article of War 93. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for twenty years. The reviewing authority 20 Wrublewsky v. McInerney, 1662 243. 245. hn 3 (9th Cir. 1948). approved the findings except those concerning escape from confinement and unlawful entry to commit a larceny, and approved the sentence but reduced the period of confinement at hard labor to five years; execution of the dishonorable discharge was suspended until the time of release from confinement. The unexecuted portion of the sentence was suspended on August 13, 1943, and the petitioner was restored to duty. However, this suspension was vacated on August 17, 1949. The petitioner was tried again by general court-martial at Fort George G. Meade, Maryland, on April 25, 1945, this time under his true name of James E. Grimlan and found guilty to desertion in violation of Article of War 58. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for three years; the reviewing authority approved the findings and sentence, but directed that execution of the dishonorable discharge be suspended until release from confinement. By subsequent clemency action, the period of confinement for this sentence was reduced to two years. Execution of the sentence was delayed by the accused's escape from confinement less than four months after he began serving his sentence, and his incarceration in the United States Penitentiary at Atlanta, Georgia, for a five-year term as the result of a civil offense committed while in the status of an escapee. Suspension of the dishonorable discharge was vacated by an order issued January 31, 1946, while the petitioner was serving the civil term at Atlanta, but the dishonorable discharge was not actually executed until September 22, 1949. The petitioner now asks relief under Article of War 53, alleging as his sole ground that the vacation on August 17, 1949 of the suspended sentenced was illegal, in that the sentence as approved was for five years, and that there was no power to revoke the suspension of this sentence at a time more than five years after it was originally adjudged. The applicant does not dispute the findings of either of the courts-martial, nor the procedure followed in his trials. A petition by the applicant for writ of habeas corpus, based on grounds substantially similar to those contained in his present petition for relief, was dismissed by the District Court of the United States for the District of Kansas, First Division, on June 30, 1950. The court found "that the order vacating suspension of the sentence of the petitioner in this case was a proper order under Article of War No. 52, 10 U. S. C. 1524." A chronological recitation of pertinent portions of petitioner's history, (including the two courts-martial mentioned above), follows: He originally enlisted at Fort Sill, Oklahoma, on August 2, 1938, under his true name of James K. Grimlan; army serial number 6287666 was assigned to him. On September 3, 1939, he went absent without leave, and while in this status he enlisted at Mount Pleasant, Texas, on July 12, 1940, under the name of Kenneth L. Grimmer; this time he was assigned army serial number 18005321. He was arrested at Fort Riley, Kansas, on July 2, 1942, after having allegedly misused a government vehicle a few days before. On July 18, 1942, he broke arrest and deserted, then on August 24, 1942, he enlisted at Jefferson Barracks, Missouri, under the name of Robert K. Grimmer. This time he was assigned army serial number 17076826. He went absent without leave on September 17, 1942, but returned on October 2, and was placed in confinement on October 7. He escaped from confinement and deserted on October 15, 1942, but surrendered at Fort Riley on October 21. On December 22, 1942, he was tried by general courtmartial at Fort Riley under the name of Kenneth L. Grimmer, alias Robert E. Grimmer, upon the numerous charges and specifications already stated. His sentence as approved was dishonorable discharge, total forfeitures, and confinement at hard labor for five years, but the unexecuted portion of this sentence was suspended on August 13, 1943, at which time he was restored to duty. The petitioner again deserted on February 19, 1945, but was apprehended in Baltimore on April 12, 1945; this resulted in his trial by court-martial at Fort George G. Meade, from which he received a three-year sentence. The place of confinement for this sentence was the Fort Knox Rehabilitation Center, but he escaped from there on August 10, 1945. He was apprehended in Baltimore on August 19, 1945, but escaped from confinement at Fort George G. Meade on September 20. The following day he was arrested by civilian authorities, charged with stealing an Army vehicle and carbine. A federal grand jury indicted him on October 30, but on November 2, 1945, the Judge refused to assume jurisdiction, requesting the Army to take custody of him. Before he was turned over to the military authorities, he attempted to escape from civilian confinement on November 8, 1945; for this he was arraigned in federal district court and pleaded guilty, with a fiveyear sentence resulting. On May 27, 1949, he was released from the Atlanta penitentiary and given into the custody of the military authorities; then he resumed serving the 1945 sentence, the place of confinement being the United States Disciplinary Barracks at Fort Leavenworth, Kansas. By order of August 17, 1949, issued by Headquarters Command and General Staff College and Fort Leavenworth, Kansas, the suspension of the unexecuted portion of the Fort Riley sentence of 1942 was vacated. The applicant attempts to support his present petition solely by citing and quoting statutes. These will be considered in order. He first cites Section 1524 of Title 10, United States Code, which is the enactment by Congress of Article of War 52, as set forth in the Manual for Courts-Martial, U. S. Army, 1928. He is correct in his contention that the disposition of his petition should be governed by this law, but the interpretation that he urges is not acceptable. The applicant has purportedly set forth this Article in his petition, but his quotation contains inaccuracies. The correct text of the Article is as follows: "The authority competent to order the execution of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does not extend to death, and may restore the person under sentence to duty during such suspension; and the Secretary of War, the commanding officer holding general court-martial jurisdiction over any such offender, or the military authority competent to appoint, for the command, exclusive of penitentiaries and the United States Disciplinary Barracks in which the person under sentence is held a court of the kind that imposed the sentence, may at any time hereafter, while the sentence is being served, suspend the execution, in whole or in part, of the balance of such sentence and restore the person under sentence to duty during such suspension. A sentence, or any part thereof, which has been so suspended may be remitted, in whole or in part, except in cases of persons confined in the United States Disciplinary Barracks or its branches, by the officer who suspended the same, by his successor in office, or by any officer exercising appropriate court-martial jurisdiction over the command in which the person under sentence may be serving at the time, and subject to the foregoing exceptions, the same authority may vacate the order of suspension at any time and order the execution of the sentence or the suspended part thereof in so far as the same shall not have been previously remitted, subject to like power of suspension. The death or honorable discharge of a person under a suspended sentence shall operate as a complete remission of any unexecuted or unremitted part of such sentence." (Underscoring is that supplied by the applicant, in quoting the Article in his petition.) The Article specifies the authority which may suspend all or part of a sentence, and restore the accused to duty, at any time "while the sentence is being served." This clause does not state that a vacation of such suspension must take place while the sentence is being served, or during the time that the sentence should have been served, as contended by the petitioner; it is the |