Lead Opinion
The question presented in this case is whether the holding of a panel of this Court in United States v. Smith,
I. FACTS
The appellant was charged with two unauthorized absences, disobedience of an order and assault in violation of Articles 86, 91, and 128, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 886, 891, 928.
The post-trial recommendation to the convening authority under Article 60(d), UCMJ, and Rule for Courts-Martial [R.C.M.] 1106, Manual for Courts-Martial, United States (1995 ed.), was prepared and signed by a legalman first class (E-6) who held the title of “Legal Officer, Enlisted Personnel.” • This sailor recommended approval of the sentence. The convening authority’s action approving the adjudged sentence stated that the “legal officer’s” recommendation was served on trial defense counsel, and that trial defense counsel did not submit comments, challenges or corrections.
SHOULD UNITED STATES v. SMITH,34 M.J. 894 , 898-99 (N.M.C.M.R.1992), WHICH HOLDS THAT “THE SUBMISSION OF THE LEGAL OFFICER REVIEW BY SOMEONE WHO IS NOT A COMMISSIONED OFFICER” IS INHERENTLY PREJUDICIAL AND REVERSIBLE ERROR PER SE, BE OVERTURNED IN LIGHT OF UNITED STATES v. OLANO, [507 U.S. 725 ]113 S.Ct. 1770 [123 L.Ed.2d 508 ] (1993), WHICH HOLDS THAT AN INDIVIDUALIZED DETERMINATION IS REQUIRED IN MOST CASES AS TO WHETHER THE ERROR “AFFECTED SUBSTANTIAL RIGHTS?” ID. AT 1777-78.
See Court Order of 6 December 1995. Both sides have submitted briefs and oral argument on the question.
II. DISCUSSION
A. UCMJ and MCM Requirements
Before a special court-martial convening authority takes action on a case that involves an adjudged bad-conduct discharge, that convening authority “shall obtain and consider the written recommendation of his staff judge advocate or legal officer.” Article 60(d), UCMJ, 10 U.S.C. § 860(d). In the Navy, a “judge advocate” is a member of the Judge Advocate General’s Corps. Article 1(13)(A), UCMJ, 10 U.S.C. ■ § 801(13)(A). The term “legal officer” means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command. Article 1(12), UCMJ, 10 U.S.C. § 801(12)(emphasis added).
B. The Smith Rationale
In Smith, after an extensive review of the state of the law, a panel of this Court held that the completion of the post-trial recommendation by someone who is not a commissioned officer was plain error. The Court was not inclined to test this error for prejudice. It stated:
We, of course, stand ready to do so [test for prejudice] in all events, but “when recommendations and the exercise of broad discretion are involved, appellate courts are limited in discerning what the outcome might have been in the absence of the error.” United States v. McCormick,34 M.J. 752 , 755 (N.M.C.M.R.1992). We are particularly disinclined to consider on an individual basis the qualifications of someone who is not statutorily authorized to make the recommendation. In this case, we simply have no way of knowing what the qualifications of the chief petty officer who prepared and signed the recommendation are or what action the convening authority would have taken had he had the recommendation of a legal officer. On these points we simply will not speculate.
Smith,
C. The Olano Rule
The year after Smith was decided, the Supreme Court issued its opinion in Olano. After the Ninth Circuit Court of Appeals had found plain error where an alternate juror sat in on jury deliberations in violation of Federal Rule of Criminal Procedure 24(c),
The Supreme Court also distinguished between waived and forfeited rights in Olano. Waived rights are those where there is an intentional relinquishment or abandonment of a known right, whereas forfeited rights are those where there is simply a failure to make the timely assertion of a right. Id. at
Significant to us in deciding this case is that Justice O’Connor also explained in her lead opinion that there may be errors that are presumed prejudicial even if the defendant cannot show prejudice, although normally the defendant must make such a showing. Id. She did not address or discuss further what errors would be presumed prejudicial.
Moreover, there may be a “special category” of forfeited errors that can be corrected “regardless of their effect on the outcome” of the case. Id.
To summarize, a finding of plain error requires the existence of a plain error that affects the substantial rights of an accused. An error may affect a substantial right where: 1) it actually prejudiced the accused, 2) the error was such that prejudice is presumed, or 3) the error affected a substantial right independent of its prejudicial impact— the “special category” of forfeited errors.
The U.S. Court of Military Appeals has compared Federal Rule of Criminal Procedure 52(b) with Article 59(a), UCMJ, 10 U.S.C. § 859(a). United States v. Toro,
In examining the evolution of the plain error doctrine through Atkinson, Fisher, Lowry, Smith, Olano and Toro, we do not discern much change. What Olano did add were: 1) additional explanation regarding the permissive nature of the application of the plain error doctrine, 2) a discussion of the difference between waived and forfeited errors, and 3) that the determination whether an error affected substantial rights hinged on finding actual prejudice, presumed prejudice or a special category error.
D. The Importance of the Convening Authority’s Action
The convening authority’s action on the results of a court-martial is a substantive exercise of power over the results of a court-martial. United States v. Diaz,
E. The Importance of the Posh-Trial Recommendation
Because of the significance of the convening authority’s action in the military justice system, the recommendation of the staff judge advocate or legal officer to the convening authority is also enormously important, for the better the convening authority is advised, the more fairly and justly will that authority exercise command discretion in acting on a case. United States v. Boatner,
III. CONCLUSION
Due to the lack of comment or objection by the trial defense counsel to the error, we must engage in a plain error analysis. R.C.M. 1106(f)(6). There is no dispute that error exists or that it was clear and obvious. The question is whether the error affected the substantial rights of the appellant. Here, the appellant has not attempted to show any specific effect whatsoever. But in light of the unique importance of the post-trial action in the military justice system, the broad power that Congress has vested in the convening authority, and the related importance of the recommendation, we hold that the submission of a post-trial recommendation under Article 60(d), UCMJ, by a sailor and not a judge advocate or qualified legal officer, is generally an error that presumptively affects the substantial rights of a military accused without a showing of prejudice. Olano, at 736, 737,
In addition, we also conclude that such an error will generally fall within the
Having found plain error, we must next determine whether to grant relief. Such relief is appropriate here because this error seriously affects the fairness, integrity and public reputation of the proceedings. The prospect that a sailor would attempt to fulfill the responsibility that by' statute is vested in a staff judge advocate or commissioned legal officer strikes at the core of the integrity and reputation of military justice in the naval service. We are not aware that any of the other services have ever experienced such a problem. The fact that this keeps recurring in the Navy
As a final matter, we note that errors in the area of post-trial processing of courts-martial have continued to make up a substantial portion of the appellate litigation before this Court.
It seems to me that these errors are easily correctable at the time of initial review by the Courts of Military Review, either by immediately remanding the case to the convening authority to have him re-do it correctly or by taking affirmative action at the Court of Military Review to correct the error. All this Court is doing by remanding the case is correcting an administrative error. Perhaps the dissent is right and nothing good will happen for appellant as a result of the remand, but one thing is certain: the record will be complete and the rules will be followed.
IV. DECISION
Accordingly, we answer the specified issue in the negative. The action of the convening authority dated 15 May 1995 is set aside. The record is returned to the Judge Advocate General for transmission to the convening authority for a staff judge advocate or legal officer’s recommendation and a new convening authority’s action. Compliance with R.C.M. 1106(f) is directed.
Notes
. We have noted that the officer who administered the oath to the accuser was not authorized to administer oaths for the purpose of military justice. Article 30(a), UCMJ, 10 U.S.C. § 830(a). He was a lieutenant junior grade (0-2) whose listed authority was "Assistant Director Hotel Services.” An officer serving in such a grade and assignment lacked authority to administer the oath to the accuser. Article 136(a), UCMJ, 10 U.S.C. § 936(a); Rule for Courts-Martial 307(b), Manual for Courts-Martial, United States (1995 ed.); Manual of the Judge Advocate General, Judge Advocate General Instruction 5800.7C of 3 Oct. 1990 [JAGMAN], § 0902b(l). This error, which involves only a ministerial act and not an exercise of judgment, was waived because the appellant did not object to trial on unsworn charges. Rule for Courts-Martial 905(e); Frage v. Moriarty,
. See JAGMAN § 0120b(5).
. While the format of the recommendation was substantially correct, we have observed that it was not free of error. In the second paragraph, and contrary to earlier advice, it related to the convening authority that the appellant was found guilty in accordance with his pleas. As mentioned above, however, the appellant pleaded not guilty. Next, the recommendation failed to note that the appellant was entitled to wear the Sea Service Deployment Ribbon. This decoration was clearly listed in the appellant’s service record and entered into evidence at trial as Defense Exhibit D. Finally, the recommendation left an ambiguity regarding the clemency petition. The sailor in her recommendation stated that the trial defense counsel submitted a clemency petition. The only clemency petition contained in the record is one submitted personally by the appellant. Left unclear is whether the clemency petition
In light of our disposition of this case finding . plain error due to the preparation and signing of the post-trial recommendation by an unqualified person, we need not decide whether the above errors, taken individually or collectively, would have constituted plain error even if the recommendation had been submitted by a qualified officer. See United States v. Lynch,
. When the Uniform Code of Military Justice was first enacted, Article 1(14), UCMJ, stated that the term "legal officer” was to be construed to refer to any officer in the Navy or Coast Guard designated to perform legal duties for a command. Public Law 506 of May 5, 1950, c. 169, 64 Stat. 1. (Emphasis added.)
The words "commissioned officer” were substituted for the word "officer” for clarity. Public Law 1028 of August 10, 1956, c. 1041, 70A Stat. 36. See also 10 U.S.C. § 101(b)(1) which defines "officer” as a commissioned or warrant officer.
. The legislative history behind the Military Justice Act of 1983, Public Law 98-209, states: "The system today is administered, operated, and monitored by qualified military attorneys at all levels.” U.S.Code Congressional and Administrative News, 98th Congress, 1st Session, 1983, Vol. 3, at 2178. One of the purposes of the 1983 amendments was to simplify the post-trial review process so that the primary role involves a determination as to whether the sentence should be reduced as a matter of command prerogative (e.g.clemency) rather than what was previously a formal appellate review. The staff judge advocate was to continue to play an important role in assembling materials to be used by the convening authority in exercising this prerogative. Id. at 2180.
. This rule states in pertinent part ”[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.”
. This mle provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
. At oral argument, the Government expressed its disagreement with this long-standing principle, suggesting instead that an accused’s best hope for sentence relief rested elsewhere. We specifically reject this assertion.
. As stated in Smith, we do not wish to demean the important role of enlisted personnel and civilian paralegals in the military justice system. 34 MJ. at 898 n. 5. The system could not function without them. But the functions they may perform are not limitless.
. The waiver rule in the military incorporates both forfeiture and waiver. Toro.
. Over the past few years, this Court has returned several other cases because of this error.
. See United States v. Ruiz,
Dissenting Opinion
(dissenting):
By focusing solely on the military status of the person who prepared the staff judge advocate’s (SJA) recommendation, instead of the content of the recommendation, the majority perpetuates the fundamental flaw of
This Court has previously held that an action taken by a convening authority without the advice of a staff judge advocate or legal officer, is erroneous but not null and void. United States v. Dunbar,
Yet, the majority now would invalidate the convening authority’s action because, as the Smith Court said, when “recommendation and the exercise of broad discretion are involved,” a reviewing court should not speculate as to the qualifications of one not statutorily authorized to make the recommendation. United States v. Smith,
The SJA recommendation does not exist for its own sake but to assist the convening authority in deciding what action to take on the sentence in the exercise of command prerogative. R.C.M. 1106(d)(1). As such, the recommendation is unalterably a preliminary requirement like the pretrial advice required by Article 34, UCMJ. Such advice can involve complex legal questions, yet failure to obtain such advice is an error that if not objected to is waived unless there is actual prejudice to the accused. United States v. Murray,
In this case, the SJA recommendation included an error as to the pleas, failed to indicate that appellant had earned a deployment ribbon, and identified appellant’s clemency petition as having been submitted by the defense counsel. These types of error are not uncommon, and, absent plain error, are waived by failure of counsel to object. By focusing on the military status of the preparer, the Court has made the form of the SJA recommendation more important than its content.
Furthermore, while the Court properly recognizes the significance of the convening authority’s action, it disregards the experience and judgment of the senior officer who takes the action merely because a junior officer did not sign the recommendation. Convening authorities are usually more senior officers with command experience. Given reasonably accurate factual information, convening authorities are, in my view, fully capable of determining whether a sentence should be reduced as a matter of command prerogative.
I also disagree with the majority’s application of the Supreme Court’s decision in Ola-no. The majority has found a readily available way to side-step the rigorous four-prong Olano test ordinarily used to determine when an appellate court can and should correct a forfeited error. The Court has simply determined that lack of statutory authorization is the kind of error that does not require a showing of prejudice but, instead, falls within a “special category” that can be corrected regardless of its effect on the outcome.
Implied by the majority’s decision is the recognition that no specific prejudice can be shown and that, if the test for unfair prejudicial impact required by Olano were applied, the error would be forfeited by the failure of defense counsel to object. With this implicit conclusion I agree fully. What I do not agree with is the underlying assumption that this Court is free to depart from the requirements of Olano by simply declaring them not applicable to a particular type of error. I believe something more is required. A comparison of the following two cases suggests what that something may be.
An approach similar to that taken by the majority in this case was taken by the U.S. Army Court of Criminal Appeals in a case that involved racial remarks in a prosecutor’s summation. That court held that such remarks “affect substantial rights” and thus rise to the level of plain error, even without a
A Federal Circuit Court of Appeals has also used the “special category” exception to satisfy Olano’s third prong. United States v. David,
In Sullivan, the court held such error' to be in the same category as total deprivation of the right to counsel, trial by a biased judge, and denial of the right to self-representation. Sullivan,
I believe military appellate courts also must rely on Supreme Court precedent to determine, under Olano, when an error is such that a showing of specific prejudice is not required or the error falls within the “special category” that can be corrected regardless of its effect on the outcome. I would apply the Sullivan standard by analogy to post-trial processing errors and hold that Olano applies unless the appellant was denied a basic protection without which a convening authority’s action cannot reliably serve its function. Under our holdings in Dunbar and Murphy and consistent with the legal principles established by our superior court in Murray, the answer is clearly that he was not.
Accordingly, I respectfully dissent.