Stirewalt v. Pluta
54 M.J. 925
USCG CCA
2001
Check Treatment
Docket
Case Information

*3

BAUM, Chief Judge, (concurring in part and dissenting in part) I concur with all but that portion of the decision that finds no prejudice from violations of Article 6(c), UCMJ, and RCM 405(d)(1). Article 6(c) provides as follows: “No person who has acted as…investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case.” RCM 405(d)(1) goes even farther by stating that, “The investigating officer is disqualified to act later in the same case in any other capacity.” That the Article 32, UCMJ investigating officer in this case violated both of these provisions is clear to me from the facts found by the military judge. Those facts reveal the following: (1) the

investigating officer was the acting senior staff judge advocate when word was received that this case had been reversed on appeal and was being returned to the Eighth District for disposition; (2) the investigating officer participated in a meeting with the Eighth District Commander, where decisions were made concerning this case and that he participated because he knew the facts of the case; (3) he was acting in the absence of the staff judge advocate when asked to provide an opinion on whether this Court’s decision should be appealed to the Court of Appeals for the Armed Forces; (4) emails from and to this officer indicate that he was the legal office’s point of contact for the decision; (5) he routinely held himself out as part of the District Eight legal team in matters pertaining to the case; (5) he did not tell others not to include him on emails and correspondence concerning the case until approximately two weeks prior to the judge’s findings; (6) he supervised both a law clerk who worked on the case and the present assistant trial counsel; (7) he was responsible for some of the logistics of the case, including the budget, assignment of counsel, and docketing matters; and (8) that he has shared advice and information about the case with the staff judge advocate.

While the military judge did not make an express finding that the Article 32 officer had violated Article 6(c) or RCM 405(d)(1), he did find that the investigating officer was not aggressive enough in his attempts to shield himself from subsequent action on the same case. My conclusion from the foregoing facts, is that this officer’s actions violated both the UCMJ and the RCM provisions. Furthermore, when there is an Article 6(c) violation, prejudice is presumed. United States v. Coulter , 3 USCMA 657, 14 CMR 75 (1954), United States v. Holt , 38 MJ 682 (AFCMR 1993). Even without a presumption of prejudice, if an Article 32 officer who recommended a general court martial were to also prepare or sign the Article 34, UCMJ advice to the convening authority concurring in that recommendation, the prejudice from such actions should be apparent. Here, according to the judge’s finding, the Article 32 officer shared advice and information about the case with the staff judge advocate. I find prejudice apparent from the Article 32 officer’s participation in advising the staff judge advocate prior to the preparation of that officer’s Article 34 advice to the convening authority. Based on that participation, along with the other acts found by the judge, I would order the charges and specifications withdrawn from the present court-martial and forwarded to another convening authority for a new decision on referral to a general court-martial for rehearing, as requested by Petitioner.

For the Court //s//

James P. Magner Clerk of the Court

Notes

[1] RCM 405(d)(1) states that, “The investigating officer is disqualified to act later in the same case in any other capacity.”