Lead Opinion
Opinion of the Court
Pursuant to his pleas, the accused was convicted of unauthorized absence (2 specifications) and missing movement by design, pursuant to Articles 86 and 87, Uniform Code of Military Justice, 10 USC §§ 886 and 887, respectively. The convening authority approved the sentence of a bad-conduct discharge, 90 days’ confinement (partially suspended), partial forfeitures, and reduction to the lowest enlisted grade. The Court of Military Review held that the staff judge advocate erred in failing to inform the convening аuthority that the judge found the first unauthorized absence was multiplicious with the missing movement.
Pursuant to Article 67(a)(2), UCMJ, 10 USC § 867(a)(2) (1989),
WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW CORRECTLY INTERPRETED THIS COURT’S DECISION IN UNITED STATES V. BEAUDIN,35 MJ 385 (CMA 1992), AS HAVING ESTABLISHED AS A UNIFORM RULE APPLICABLE TO ALL RCM 1106 RECOMMENDATIONS, THAT THE STAFF JUDGE ADVOCATE (SJA) MUST SPECIFICALLY RECITE ANY SENTENCE MULTIPLICITY DETERMINATIONS MADE BY A TRIAL JUDGE.
We hold that the Court of Military Review erred when it held that Beaudin established a uniform rule that the SJA’s recommendation must specifically recite any sentence multiplicity determination by a judge whether there is an objection by defense counsel.
In Beaudin, the SJA failed to mention in his post-trial recommendation that the military judge had found some оf the offenses multiplicious for sentencing purposes. “However, defense counsel, in his response to that recommendation, noted the military judge’s ruling and asserted that the convening authority was being misled.”
Both in a written motion to this Court and during oral argument, the defense asks this Court to dismiss the certified issue or summarily affirm the decision below.
To support its argument, the defense cites United States v. Bryant,
“[T]his Court has over the years construed the literal wording of Article 67(b)(2) [now 67(a)(2)] in a way which рermitted some leeway to leave questions unanswered that the Judge Advocate General had certified under Article 67(b)(2).” United States v. Redding,
As a supervisory court for the military criminal justice system, it is important for this Court to answer certified questions where decisions of this Court are being misinterpreted by appellate counsel and intermediate appellate courts. This is not an advisory opinion. The briefs demonstrate that this is a question “presented in an adversary context.” Flast v. Cohen,
Beaudin does not require that every multiplicity ruling be included in the SJA recommendation tо the convening authority. As a practical matter, for an SJA to mention that the offenses were considered multiplicious for sentencing may be adverse to the interests of an accused. If a convening authority is informed that the accusеd has received a sentence based on the offenses being treated as multiplicious thereby limiting the maximum punishment, that convening authority may be less inclined to grant clemency. The requirement for the SJA to comment on the multiplicity question arisеs when the defense counsel first raises the issue as part of the defense submission to the convening authority. In effect, in Beaudin the SJA overruled the judge by indicating that the judge’s decision concerning multiplicity was erroneous. The misinterpretation of Beau-din has resulted in a needless-waste of resources at the post-trial and appellate level and calls out for clarification of our decision. As the concurring judges in Beaudin noted, the post-trial recommendation should not be encumbered with unnecessary requirements as interpreted by an intermediate appellate court.
The certified question is answered in the negative.
The decision of the United States Navy-Marine Corps Court of Military Review is affirmed as to result оnly.
Notes
That Article provides: "The Court of Military Appeals shall review the record in ... (2) all cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to
Concurrence Opinion
(concurring in the result):
I am reluctant to answer the certified question under the circumstances of this case — where the Government argues that the Court of Military Review was incorrect in its analysis of the decision in United States v. Beaudin,
Nonetheless, since the majority insists on answering the certified question — and especially since, in doing so, the majority in my view overrules the legal principle that threads through the various opinions in Beaudin — I am constrained to voiсe my disagreement with that route.
I
In Beaudin, Chief Judge Sullivan wrote in the lead opinion that the “concise information as to ... findings and sentence adjudged by the court-martial” that is required to be included in the staff judge advocate (SJA)’s post-trial recommendatiоn, see RCM 1106(d)(3)(A), Manual for Courts-Martial, United States, 1984, includes mention that the military judge held two or more offenses to be multiplicious for sentencing purposes. See
I joined fully in that opinion, but our three colleagues concurred only in the result. In doing so, however, each wrote separately. Judge Cox, for instance, acknowledged: “Regarding the granted issue, in a perfect world I agree that the convening authority should have been told that the military judge, in fact, treated the fraternization оffense as multiplicious for sentencing purposes.”
Judge Gierke did, indeed, express such sentiments. He did so, however, in the context of forthrightly “agree[ing] with the rationale of [United States v.] Clear[,
Accordingly, I believe that the various opinions in Beaudin appropriately can and should have been read to reflect that all five Judges of this Court were of the view that significant actions of the military judge regarding the sentence — upon which the convening authority has a statutory obligation to act — are within the “concise informаtion” that is to be included in the SJA’s recommendation. Thus, contrary to the majority opinion here,
II
Now, however, our three colleagues who separately concurred in the result in Beau-din apparently have changed their minds. Their only articulated rationale is the concern expressed by Judge Gierke in Beaudin, with which Judges Cox and Crawford agreed, with overly encumbering the recommendation with judicially created requirements that fly in the face of congressional intent to keep it simple.
I feel the need, here, to express my agreement with that concern. I also feel the need, though, to exprеss my curiosity as to how my colleagues in the majority today believe that the convening authority can fulfill his statutory responsibility to elect from among the range of options available to him on the sentence if the SJA’s statutorily required recommеndation does not fully and accurately inform him of the critical events regarding the sentence that already are a matter of record, such as the military judge’s recommendation for clemency, see United States v. Clear, supra, and the military judge’s ruling on sentence multiplicity, see United States v. Beaudin, supra.
As the majority here points out, Congress believed that the staff judge advocate’s post-trial review had become too encumbered with a variety of required ornaments and that the post-trial responsibility of the convening authority was too legalistically broad.
While Congress did not want the recommendation to become overly encumbered, it nonetheless statutorily mandated it as a predicate to the convening authority’s sole
Dissenting Opinion
(dissenting):
The Court of Military Review read the various opinions of the judges of this Court in United States v. Beaudin,
In my view, the Judge Advocаte General seeks an advisory opinion on a moot question. See United States v. Bryant,