12 M.J. 866 | U S Air Force Court of Military Review | 1982
DECISION
Pursuant to mixed pleas, the accused stands convicted of one possession, two uses and seven sales of marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The approved sentence extends to a dishonorable discharge, confinement at hard labor for three years, forfeiture of $200.00 per month for 12 months, and reduction to airman basic.
Appellate defense counsel complain that the post-trial review of the staff judge advocate was signed by the deputy staff judge advocate, and not expressly adopted by the staff judge advocate. They correctly point out that such concurrence is ordinarily required by regulation and case law.
In reply, appellate government counsel have moved for leave to file the affidavit of the review writer to the effect that the deputy staff judge advocate was, on the dates in point, the acting staff judge advocate, by virtue of the absence of the staff judge advocate.
In the remaining assignment of error, appellate defense counsel contend that the military judge erred when he denied the accused’s motion for a new pretrial investigation pursuant to Article 32, Uniform Code of Military Justice. We have examined the report by the Article 32 investigator and find that, although it is not a model report, it is an eminently adequate one.
The defense claims that numerous facts distinguish this case from Rowe; that this Article 32 investigating officer abused his
We find the approved sentence to be appropriate and, like the findings of guilty, it is correct in law and fact and, on the basis of the entire record, both are
AFFIRMED.
. See, Air Force Manual 111-1, Military Justice Guide, 2 June 1973, paragraph 7-2b; United States v. Kemma, 10 U.S.C.M.A. 272, 27 C.M.R. 346 (1959). Article 61, Uniform Code of Military Justice, 10 U.S.C. § 861 requires that, pri- or to acting upon a record of trial by general court-martial, the convening authority refer it to his staff judge advocate or legal advisor for his written opinion thereon.
. The motion is unopposed and is hereby granted.
. As pointed out by the defense, the summarized testimony of one witness was not later signed by that witness to verify its accuracy. Most of the witness’s testimony, however, addressed the substance of his two prior written statements, which were expressly adopted by the witness and attached as exhibits to the report of the Article 32 investigating officer. The other patent irregularity is the preparation of the summarized testimony in the third person. While we do not indorse this technique, we perceive no prejudice to this accused.
. Since the report did not include a verbatim transcript, the only reference to the issue in the Article 32 report is the statement of the Article 32 officer concerning the request and denial. Elsewhere between the “blue covers” is a pretrial letter from the defense counsel to the convening authority requesting a new Article 32 investigation, or other appropriate relief. See, United States v. Eubank, 12 M.J. 752, note 4 and accompanying text (A.F.C.M.R.1981).
. The Article 32 investigating officer was not called as a witness; the accused did not present limited testimony concerning the events at the investigation; nor did the defense counsel testify. See, A.B.A. Code of Professional Responsibility, DR 5-101(B)(2); EC 5-9 & 5-10.