UNITED STATES, Appellee v. LEWIS E. JONES, Private, U. S. Army, Appellant

UNITED STATES, Appellee v LEWIS E. JONES, Private, U. S. Army, Appellant 20 USCMA 90, 42 CMR 282 No. 23,196 September 11, 1970 Colonel Daniel T. Ghent, Captain Howard L. Kaplus, and Captain Stewart Pettet Davis were on the pleadings for Appellant, Accused. Colonel David T. Bryant, Captain Benjamin G. Porter, and Captain Mark Rosenberg were on the pleadings for Appellee, United States. [MAJORITY — PER CuRiam:] Opinion of the Court PER CuRiam: In material part, specification 1, Additional Charge III, alleges that, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928, the accused “did . . . strike Private E-l Steven C. Cantrell in the face with his fists.” No averment indicates that the act was wrongful or unlawful. Consequently, the specification is insufficient to allege a violation of Article 128. See United States v Brice, 17 USCMA 336, 38 CMR 134 (1967); United States v Priester, 4 CMR 830 (AFBR 1952). The Government concedes error. The decision of the United States Army Court of Military Review is reversed as to specification 1, Additional Charge III, and the sentence. The findings of guilty as to the specification and the accused’s plea of guilty to the specification are set aside and the specification is ordered dismissed. The record of trial is returned to the Judge Advocate General of the Army for resubmission to the Court of Military Review for reassessment of the sentence.