4 M.J. 723 | U S Air Force Court of Military Review | 1977
DECISION
Tried by general court-martial, military judge alone, the accused was convicted, pursuant to his pleas, of three specifications of larceny, destruction of Government property, and falsely making the signature of another with intent to defraud, in violation of Articles 121, 108 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 908, 923.
In his request for appellate representation, the accused assigned one error which we have considered and find to be without merit. Appellate defense counsel assert one additional error:
THE ACCUSED WAS DENIED HIS RIGHT TO COMMENT ON THE POST-TRIAL REVIEW.
We agree.
The accused was sentenced on 12 May 1977, and the review of the staff judge advocate was completed on 27 July 1977. According to an affidavit of the reviewer, daily attempts were made from 28 July 1977 through 5 August 1977, to serve a copy of the review on the defense counsel,
We have recognized the dilemma faced by a convening authority in this sort of situation.
Since our last look at this “dilemma”, the United States Court of Military Appeals has reexamined Dunlap and Goode, both supra. In United States v. Hill, 3 M.J. 295 (C.M.A.1977), the Court held that failure to serve a copy of the review on the defense counsel with sufficient time for his comments requires the return of the record of trial for a new review and action. In United States v. Bryant, 3 M.J. 396 (C.M.A.1977), the convening authority took his action on the 92nd day of post-trial confinement, but the delay was caused by an “unusually extended period of time” in mailing the review to the defense counsel. The Court held that this “constituted a circumstance which remov[ed] this case from the application of the Dunlap presumption.” 3 M.J. at 397. As we read Bryant, if the reason for the delay past the 90th day is not attributable to the Government, the Dunlap rule will not be mechanically applied.
Here the delay was caused by the absence of the defense counsel on leave, a circumstance which may not be attributed to the Government.
The action of the convening authority is set aside, and the record is returned for action in accordance with this decision.
ORSER and ARROWOOD, Judges, concur.
. The accused was acquitted, pursuant to his pleas, of one count of larceny. He also pleaded guilty to the Article 108 specification by exceptions and was found guilty in accordance with his plea.
. Pursuant to the mandate in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975), defense counsel is given 5 days within which to reply on penalty of waiver.
. United States v. Thomas, 2 M.J. 263 (A.F.C.M.R.1976); United States v. Bowen, 2 M.J. 244 (A.F.C.M.R.1976); United States v. Veilleux, 1 M.J. 811 (A.F.C.M.R.1976), pet. denied (1976); United States v. Stockman, 1 M.J. 757 (A.F.C.M.R.1975).
. For the reasons stated in United States v. Thomas, 2 M.J. 263 (A.F.C.M.R.1976), and United States v. Bowen, 2 M.J. 244 (A.F.C.M.R. 1976), defense counsel are encouraged to submit their Goode comments even where such action postdates convening authority action.
. No “fault” is attributed to the defense counsel for his absence in leave status. We consider that matter as simply a “fortuitous circumstance beyond the control of the Government which happened to have unnecessarily delayed the [review] process.” United States v. Bryant, supra, at 397.