8 M.J. 657 | U S Air Force Court of Military Review | 1979
DECISION
Consistent with his pleas, accused was convicted of possession of marijuana and failure to obey an order of the Myrtle Beach Air Force Base Commander not to drive on base, in violation of Articles 134 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 934, 892. His sentence of bad conduct discharge was suspended by the reviewing authority.
We have considered accused’s assignments of error in his request for appellate defense counsel and find them to be without merit. However, another matter discovered in our review of the record warrants comment.
The officer whose order was violated, the Commander, 354th Combat Support Group, also convened the court-martial which tried the accused, and took action on the record of trial approving the findings and sentence.
It is a fundamental principle of military law that the convening authority of a court-martial cannot be an accuser. An accuser is a person who signs and swears to charges, directs charges be brought, or has an interest other than official in the prosecution of the accused. Articles 1(9) and 22(b), Code, 10 U.S.C. §§ 801(9), 822(b), supra; paragraph 5, Manual for Courts-Martial, 1969 (Rev.); United States v. Bloomer, 21 U.S.C.M.A. 28, 44 C.M.R. 82 (1971); United States v. Gordon, 1 U.S.C.M.A. 255, 2 C.M.R. 161 (1952). As the United States Court of Military Appeals noted in Gordon, supra, at 261,
[A]s we view it, the test should be whether the appointing authority was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter. We cannot peer into the mind of a convening authority to determine his mental condition, but we can determine from the facts whether there is a reasonable probability that his being the victim of an offense tended to influence a delicate selection.
The fact that an order was signed by another officer for the commander does not alter the fact that it was the superior’s order that was violated. United States v. Marsh, 3 U.S.C.M.A. 48, 11 C.M.R. 48 (1953). Winthrop’s Military Law and Precedents, 2nd ed, 1920 Reprint at 574. A personal interest was found evident in Marsh, which involved willful disobedience of an order.
In the case at bar, the facts and circumstances of the base commander’s involvement were not disclosed. No issue was raised that he was, in fact, the accuser, and no argument was made that he had any personal interest in the matter. While properly charged as failure to obey an order, the gravamen of the offense was driving on base in violation of an Air Force Regulation while his license was suspended. United States v. Arms, supra. Under these circumstances, we can not presume a disqualifying personal interest.
AFFIRMED.
. The order suspending the accused’s driving privileges was signed by the Chief of Security Police for the Commander, 354th Combat Support Group on 25 January 1979, but the name of the commander was not disclosed. The subsequent order appointing the Court and the action on the record of trial were both signed by Colonel Joseph R. Nevers, Commander, 354th Combat Support Group. We assume for purposes of discussion that Colonel Nevers was also in command on 25 January as the suspension was imposed less than six weeks prior to the order convening the court.
. Under different facts, such as where the base commander personally issued the order in the presence of an accused, a different decision could result.