6 M.J. 791 | U.S. Army Court of Military Review | 1978
OPINION OF THE COURT
The appellant was tried by a judge alone general court-martial for aggravated assault upon a fellow soldier in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. Pursuant to his negotiated plea he was found guilty. His approved sentence was a bad-conduct discharge, confinement at hard labor for six months, forfeiture of $125.00 pay per month for six months, and reduction to the grade of Private (E-l).
Appellant now asserts that the failure of the convening authority personally to detail a court reporter to a general court-martial, although not constituting error of a jurisdictional magnitude, is error of sufficient severity to warrant sentence relief. It is suggested [citing as authority United States v. Thompson, 22 U.S.C.M.A. 448, 47 C.M.R. 489 (1973).
At the outset, appellant declines to challenge: (1) the accuracy of the record of trial; (2) the responsibility of the trial counsel for preparation of the record under the direction of the court; or (3) the authentication of the record by the military judge. However, at trial, the appellant moved for dismissal of the charge for lack of jurisdiction on the theory that the convening authority’s failure
Article 28, UCMJ, 10 U.S.C. § 828, provides in pertinent part: “Under such regulations as the Secretary concerned may prescribe, the convening authority of a court-martial, . . . shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court . . ..” In amplification of the UCMJ, paragraph 7, Manual for Courts-Martial, United States, 1969 (Revised edition), provides in part:
Under such regulations as the Secretary concerned may prescribe, the convening authority of a court-martial . shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court
The detail or employment of reporters . . may be effected by the convening authority personally or through a staff officer, including the trial counsel. The detail or employment of reporters . may be oral and need not be*793 shown in the record of trial or allied papers.
See also paragraph 49, MCM, 1969 (Rev.).
It is noted that although the principal Army regulation on the administration of military justice (AR 27-10) contains general guidance pertaining to the utilization of court reporters, there are no directions governing the manner of detailing or employment of court reporters. See paragraphs 2-6, 2-7, 2-17, 2-21 and 5-6, AR 27-10.
The appellant’s attack actually has two prongs: first, it is asserted that the rationale of Newcomb requires that the convening authority personally detail the court reporter since the reporter is a member of the court-martial; and second, the language of paragraph 7, MCM, 1969 (Rev.), purporting to authorize the delegation of the convening authority’s duties to a staff officer including the trial counsel is alleged to be inconsistent with the intent of Congress as expressed in Article 28, UCMJ, and being an obvious contradiction, is of no legal effect.
It is well settled by recent decisions of the United States Court of Military Appeals in Newcomb and Ryan
Although we find limited historical background material in resolving the second issue raised, our research establishes that prior to the enactment of the Uniform Code of Military Justice, the power to appoint a reporter for a court-martial was vested in the president of the court-martial under such regulations as the Secretary of War (Army) [might . . .] prescribe.
The findings of guilty and the sentence are affirmed.
. In United States v. Thompson, the United States Court of Military Appeals established the principle that while the trial proceedings of a general court-martial must be recorded verbatim, a summarized account of the trial is constitutionally allowable even in certain general court-martial cases and where an appellate court receives a summarized record of a general court-martial for review, the error may be cured by a sentence reassessment and approval of a sentence no greater than that which could be adjudged in a special court-martial. In Thompson, the Court also stated that the question of whether the limitations on the detail and employment of reporters imposed by paragraph 7, Manual for Courts-Martial, United States, 1969 (Revised edition), was consistent with Article 28 need not be decided. United States v. Thompson, 22 U.S.C.M.A. at 492, 47 C.M.R. at 492, n.2.
. It was stipulated by the parties to the trial with the express consent of the accused that the qualified court reporter in this case was not personally detailed by the convening authority. [R. 9; App. Ex. P.]
. United States v. Newcomb, 5 M.J. 4 (C.M.A. 1978).
. United States v. Ryan, 5 M.J. 97 (C.M.A. 1978); United States v. Newcomb, supra note 3.
. Wright v. United States, 2 M.J. 9 (C.M.A. 1976); United States v. Ryan, supra note 4, at n.5.
. Article of War 115, paragraph 46, MCM, U. S. Army (1928); Article of War 115, paragraph 46, MCM, U. S. Army (1949); The Background of the Uniform Code of Military Justice, The Judge Advocate General’s School (1959), Annex A, at 10.
. Legal and Legislative Basis, Manual for Courts-Martial, United States (1951), at 25; U. S. Code Congressional Service 81st Congress, Second Session (1950), Legislative History, Uniform Code of Military Justice, Vol. 2 at 2239.
. United States v. Voorhees, 4 U.S.C.M.A. 509, 535, 16 C.M.R. 83, 109 (1954).
. Tillotson, The Articles of War Annotated, 2d Rev. Ed. (1943), Annotation 1, 2, & 3, Article 115, at 252; J. Snedeker, Military Justice Under the Uniform Code (1953) Sec. 608a(2), at 106; see also paragraph 46, MCM, U. S. Army (1928); and paragraph 46, MCM, U. S. Army (1949); United States Code, Title 10, Chapter 47, § 828 (1958 Ed).
. See generally United States v. Newcomb, supra.