9 M.J. 659 | U.S. Navy-Marine Corps Court of Military Review | 1980
Lead Opinion
On appeal the accused contends, among other things, that the staff judge advocate’s review was inadequate because it failed to discuss the speedy trial issue litigated at trial. We agree and return the record for another review and supervisory authority’s action.
Relying on Chief Judge Fletcher’s opinion, concurring in the result, in United States v. Morrison, 3 M.J. 408 (C.M.A.1977), the staff judge advocate refused to discuss the speedy trial issue. He interpreted that opinion together with Judge Perry’s concurrence in that case to promulgate new standards for the post-trial reviews of staff judge advocates requiring discussion of pure legal issues only where errors of law are perceived. Trial defense counsel challenged the adequacy of the review when served with a copy, thereby preserving the issue on appeal. See United States v. Goode, 1 M.J. 3 (C.M.A.1975).
In Morrison, Chief Judge Fletcher expressed concern over the elevated status of the staff judge advocate’s review, called for a reevaluation of Article 61, Uniform Code
Although the staff judge advocate has wide discretion in determining matters to be included in his review, his exercise of that discretion is subject to review for abuse. United States v. Cruse, 21 U.S.C.M.A. 286, 45 C.M.R. 60 (1972). An appropriate discussion of any point that might substantially influence the convening authority’s action is required. A review that is incomplete or misleading on a significant factor is unacceptable. Id.; United States v. McCadney, 1 M.J. 732 (A.F.C.M.R.1975). The review should deal appropriately with any issue which could have determined the ultimate outcome of the case and contain all pertinent information which might substantially influence the decision of the convening authority. United States v. Williams, 7 M.J. 725 (A.C.M.R.1979); United States v. Hernandez, 3 M.J. 916 (A.C.M.R.1977) (motion to dismiss for lack of jurisdiction by reason of improper referral); United States v. Townsend, 39 C.M.R. 445 (A.B.R.1968) (motion to dismiss for lack of speedy trial). The purpose of the review is to assist the convening authority in the exercise of his statutory responsibility to approve only such findings of guilty and sentence as he finds correct in law and fact and as he in his discretion determines should be approved. Article 64, U.C.M.J., 10 U.S.C. § 864; United States v. Williams, supra. This purpose cannot be fulfilled, and Article 61, U.C.M.J., which mandates the review, is meaningless unless the review provides the convening authority with lucid guideposts for deciding the issues which he is required to decide.
Examining the staff judge advocate’s review in the light of these principles, we find it is deficient. In view of our disposition, it is unnecessary to address the remaining assignment of error. Accordingly, the action of the officer exercising general court-martial jurisdiction is set aside. The record is returned to the Judge Advocate General of the Navy for referral to an appropriate general court-martial convening authority for a new staff judge advocate’s review and supervisory authority’s action.
. The basis for disposition was that alleged deficiencies in a review consisting of ambiguities which may be interpreted in a proper or improper manner are waived by trial defense counsel’s failure to object when afforded the opportunity to do so pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975).
. But cf. United States v. Cansdale, 7 M.J. 143, 149 (C.M.A.1979), which criticizes requiring a nonlawyer convening authority to pass upon the correctness of the rulings of a military judge. If such review by the convening authority is incongruous, the solution is legislative amendment of the statute which imposes the duty in order to relieve him of it, not judicial emasculation of another statute which is intended to require meaningful guidance as to the applicable principles of law to be followed by him in performing the difficult duty.
Concurrence Opinion
(concurring opinion):
I concur with Judge Gladis’ opinion. I would note that once more we have a striking example of the disruption which can occur as the result of judicial dicta which tampers with the statutory requirements of the Uniform Code of Military Justice (UCMJ) and a well-thought-through provision of the Manual for Courts-Martial, 1969 (Rev.) (MCM). In this case the staff judge advocate seized upon the dicta contained in the concurring opinion of United States v. Morrison.
I prefer to go on record as stating that we should continue to give “elevated status” to the staff judge advocate review.
We should continue to require the high standards of review which now prevail pursuant to Article 61, UCMJ, and paragraph 85b, MCM. Any softening of responsibility in this respect can lead to serious problems at the appellate level. A primary function of the staff judge advocate is to detect irregularities at their inception and take any obvious remedial action required and thereby forestall return of the record from the appellate level.
Additionally, the majority opinion calls attention to United States v. Cansdale.
Again, I believe, the High Court has drifted into another militarily unsound doctrine, that is, nonlawyer military commanders are not competent to comprehend the subtleties of military law and, in conjunction with the advice of their staff judge advocate, override a military judge’s ruling on a question of law. On the other hand, such a belief on the part of the High Court would be in consonance with earlier opinions of that Court tending to strip military commanders of judicial powers and authority heretofore reposed in them under the provisions of the UCMJ. This Court has previously spoken out in opposition to such trends.
Be that as it may, I do not believe we should continue to view the Ware opinion as some sort of everlasting pronouncement scrawled across the wild blue yonder in indelible script. In my opinion, that decision is probably incorrect and like many
Subject to the foregoing, I concur in the majority opinion.
. 3 M.J. 408 (C.M.A.1977).
. Judge Perry in his concurring opinion in Morrison also concurred that the staff judge advocate’s review has been accorded an unduly “elevated status.”
. See generally United States v. Onate, 6 M.J. 985, 988 (N.C.M.R.1979) (Granger, J., concurring).
. 7 M.J. 143, 149 (C.M.A.1979).
. 1 M.J. 282, 287 n.32 (C.M.A.1976).
. See e. g. United States v. Jones, 7 M.J. 806 (N.C.M.R.1979); United States v. Rivera, 6 M.J. 535 (N.C.M.R.1978).