9 M.J. 829 | U.S. Army Court of Military Review | 1980
OPINION OF THE COURT
In this case the appellant asks the Court to adopt the rule promulgated by the United States Air Force Court of Military Review in United States v. Boston, 7 M.J. 954 (A.F.C.M.R.1979), requiring the staff judge advocate to submit to the convening authority a response to any comment made by the trial defense counsel to the staff judge advocate’s review pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975).
We concede that in many cases it will be beneficial to the convening authority and to the appellate agencies for the staff judge advocate to make a response to the defense counsel’s Goode submission, and in some cases such a response will be absolutely necessary. There are other cases, however, and this case is one of them, where a Goode comment is so frivolous that a response is unnecessary. We believe there are enough rules burdening legal procedures at the trial and initial review level without adding another.
In the instant case the president of the court-martial in announcing the sentence to bad-conduct discharge, total forfeitures and confinement at hard labor for six months stated that two-thirds of the members concurred. The sentence worksheet that was included as an appellate exhibit, however, was marked to show that three-fourths had concurred in the sentence. The defense counsel argued in his comments pursuant to Goode that the sentence worksheet showed that the court could have passed over a lesser sentence that was arrived at by two-thirds vote before they reached the sentence imposed by a three-fourths vote.
Trial defense counsel’s argument overlooked two significant points. First, the court-martial was composed of only five members with four being required for either a two-thirds or three-fourths vote.
The findings of guilty and the sentence are affirmed.
. The rule as promulgated in United States v. Boston, 7 M.J. 954 (A.F.C.M.R.1979), provides: “Henceforth, thirty days after this date, we will require that when the defense counsel submits comments or challenges to the review of the staff judge advocate pursuant to the mandate in United States v. Goode, 50 C.M.R. 1 (1975), the staff judge advocate must, at a minimum, indicate his concurrence or disagreement with those comments prior to submitting them to the officer exercising general court-martial authority. It will no longer be sufficient merely to acknowledge the fact that defense counsel’s comments are attached for consideration.”
. Presumably a violation of the Boston rule would require a new action, just as does a violation of the Goode requirement.
. The military judge instructed the members correctly on this point.