absence alleged in the third specification of Charge I depended upon proof that the accused in fact failed to report as required by the travel orders issued to him which are referred to in the specification under Charge III, it follows that failure of proof that he did not report as required also constitutes a failure of proof that he was absent without authority as alleged in the third specification of Charge I. Accordingly, the finding on specification 3 of Charge I, and the action of the convening authority thereon, were set aside. (File: MM-Domback, Raymond S./A17–20, 14 March 1949.) WASHINGTON, D. C., 14 July 1949. DAN A. KIMBALL Acting Secretary of the Navy. INDEX Absence: Page Unauthorized: failure of proof that accused did not comply 122 Accused: Counsel for. (See Counsel for accused.) Interests substantially prejudiced: statement inconsistent 107 Rights of: not prejudiced by failure to prefer specification 99 107 Statement in extenuation: question of self-defense raised: Preferred only when intelligence of offense had not reached Alcoholic liquor: See Intoxicating liquor. Assault and battery: 102 "Striking another person in the Navy": specific charge to 99 "Assaulting another person in the Navy": specific charge 99 Assaulting another person in the Navy: Specific charge, specification supporting: to be preferred 99 Assault with intent to commit sodomy: Lesser included offense: "Scandalous conduct tending to the "Gross negligence", defined in respect to charge of......--- 112 112 Carlessness: See Negligence. Charges and specifications: See also specific offense. Additional charges: preferred only when intelligence of Page 102 Allegations necessary to establish legal efficacy of written General charges, use of: not to be preferred if specifica- "Striking another person in the Navy", rather Consolidation of: to avoid multiplicity of trials. Duplication of: "Assault with intent to commit sodomy"; "Scandalous Limitation of punishment where both found proved__ General charges, use of: not to be preferred if specification Embezzlement: conviction of three offenses, each re- 109 109 109 99 104 Limitation of punishment where more than one found 109 "Neglect of duty": failure safely to keep certain 104 Offenses in violation of local laws, orders, regulations, etc: "Assaulting another person in the Navy". 115 99 99 Charges and specifications Continued Specification: To be laid under specific charge provided: "Assaulting another person in the Navy" rather "Striking another person in the Navy" rather than Specification defective: All elements of offense of "Forgery" not set forth____ "Conduct to the prejudice of good order and dis- “Assaulting another person in the Navy”. "Conduct unbecoming an officer and a gentleman" "Conduct to the prejudice of good order and Adding names of duty section to official liberty list_--- Aiding enlisted man to escape consequences of unauthorized absence.____ "Executing a fraud in violation of Article 14 of the Articles for the Government of the Navy" rather than "Executing a fraud in violation of Article 8 of the Articles for the Government of the Navy" Not cured by: findings: no evidence of actual or constructive knowledge of local order............ Offenses in violation of local laws, orders, regulations, etc: pertinent part of order to be set forth.................. Variance between allegations and proof: 115 115 Acknowledgement on orders does not establish that 101 Government suffered no loss under charge of "Ex- 117 Failure of proof that accused did not comply with travel orders constitutes failure of proof that he was 122 Charges and specifications Continued Variance between allegations and proof-Continued No evidence possession of alcoholic liquor on board Conduct to the prejudice of good order and discipline: Adding names of duty section to official liberty list...----- Alcoholic liquor, possession of: evidence required to support Not to be used if specification supports specific charge Specification supporting specific charge: "Assaulting another person in the Navy," should "Striking another person in the Navy," should 99 Violation of lawful station regulation: Publication of, to be proved to charge accused with 111 Violation of local Naval District uniform order: Defective specification not cured: no evidence that Specification fails to set forth order and to allege Conduct unbecoming an officer and a gentleman: Adding names of duty section to official liberty list... 115 115 105 105 105 Consolidation: See Trials. |