Court-Martial Trial Practice Blog
On 21 October 2008 the NMCCA decided and affirmed in United States v. Burleson, 2008 CCA LEXIS 386. In the original case he was sentenced to: The appellant was sentenced to 20 years confinement, total forfeitures, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged.
On 18 May 2010, CAAF reversed in part and sent the case back to NMCCA for sentence reassessment or a rehearing. Apparently NMCCA sent the case back for a rehearing.
On further consideration of the granted issue (68 M.J. 163) in light of United States v. Jones, 68 M.J. 465, 2010 CAAF LEXIS 393 (C.A.A.F. 2010), we hold that indecent assault under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), is not a lesser included offense of rape under Article 120, UCMJ, 10 U.S.C. § 920 (2006).
United States v. Burleson, 69 M.J. 165 (C.A.A.F. 2010).
On 28 April 2011, the NMCCA reviewed and approved the new sentence for Burleson. It’s tempting to argue – see – the error did have an effect. But having done rehearing cases, there are a number of reasons for a lesser sentence on rehearing.
A rehearing on sentence was held on 26 October 2010, and the appellant was sentenced to 12 years confinement, reduction to E-1 and a dishonorable discharge.