UNITED STATES, Appellee v. EXEQUIEL C. SAPLALA, Stewardsman Apprentice, U. S. Navy, Appellant

UNITED STATES, Appellee v EXEQUIEL C. SAPLALA, Stewardsman Apprentice, U. S. Navy, Appellant 19 USCMA 344, 41 CMR 344 No. 22,709 March 20, 1970 Lieutenant Kenneth F. Ripple, JAGC, USNR, was on the pleadings for Appellant, Accused. Captain Frank J. Kaveney, USMCR, was on the pleadings for Appellee, United States. [MAJORITY — Darden, Judge:] Opinion of the Court Darden, Judge: After pleading guilty to assault with a dangerous weapon, the appellant testified in mitigation that he acted in self-defense. This inconsistency causes his plea of guilty to the assault with a dangerous weapon charge to be improvident. Consequently, we must set aside the plea to that charge. United States v Messenger, 2 USCMA 21, 6 CMR 21 (1952) ; United States v Walter, 16 USCMA 30, 36 CMR 186 (1966); United States v Baker, 17 USCMA 346, 38 CMR 144 (1967); United States v Vaughn, 17 USCMA 520, 38 CMR 318 (1968). The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy. A rehearing may be ordered, or the sentence may be reassessed on the remaining charge. Chief Judge Quinn and Judge Ferguson concur.