Lead Opinion
This case presents again the vexing issue of delay in the post-trial review of a court-martial conviction. The U. S. Army Court of Military Review found error in this desertion case in the failure of the military judge to require the Government to produce defense witnesses at trial on the issue of the accused’s intent to remain away from his unit permanently. The Court of Military Review cured this error by affirming only the unauthorized absence offense and reassessing the sentence by reducing to the extent of one month’s confinement and one month’s partial forfeiture the sentence of a bad-conduct discharge, confinement at hard labor for seven months, forfeiture of $100.00 per month for seven months, and reduction to Private E-l which was imposed at trial by the military judge.
The Court of Military Review found the issue of the unexplained and unreasonable post-trial delay of six months in the convening authority’s initial review of this case to be “without substantial merit.” We hold the 180-day delay between the trial and the convening authority’s action to be unreasonable because it is essentially unexplained beyond the mere fact that the military judge, trial counsel, and trial defense counsel were located in three different places, and because of the brevity of the record (94 pages) and the short, uncomplicated post-trial review.
In United States v Tucker,
In United States v Prater, supra, this Court said:
Where error has occurred in the conduct of a court-martial proceeding, some combinations of sentences and delays can result in cases requiring relief if a review for errors of law under Article 67, Uniform Code of Military Justice, 10 USC § 867, is not to become a completely inane exercise.
Appellant also alleges that he was prejudiced by the fact that in the post-trial review the staff judge advocate made absolutely no reference to the appellant’s testimony in mitigation or to the letters of good character (Defense Exhibits I, J and K) submitted by the defense during the hearings on sentence. We agree.
Article 61, UCMJ, 10 USC § 861, and paragraph 85b, Manual for Courts-Martial, United States, 1969 (Revised edition), require the staff judge advocate to review the record of trial and make recommendations to the convening authority regarding the validity of the findings of guilty determined by the court-martial and the appropriateness of the sentence adjudged by it. See. United States v Fields,
In United States v Cruse,
A staff judge advocate is necessarily selective in summarizing the evidence for a post-trial review. His exercise of discretion is subject to review for abuse. United States v Cash,14 USCMA 96 ,33 CMR 308 (1963). A review that is incomplete or misleading on an important point is unacceptable. United States v Hooper,9 USCMA 637 ,26 CMR 417 (1958).
In United States v Arnold,
It can hardly be claimed that that portion of the trial devoted exclusively to determination of an appropriate sentence is of little or no importance. It is an essential part of the trial proceedings. “Until the sentence proceedings are complete, the trial is not ended.” United States v Strand,
In the case at bar, the post-trial review, as alleged, contains no mention of the hearing on sentence or of the evidence presented therein. In a section entitled "CLEMENCY” the staff judge advocate simply set forth the terms of the adjudged sentence and stated that it “is within legal limits and is appropriate.”
In addition to the letters of good character, presented by defense counsel, the accused, in an unsworn statement, disclosed that he had enlisted in the Army within a month after his 17th birthday and had served honorably in the United States and Germany for over two years and seven months prior to his unlawful absence. (Trial counsel presented no evidence of prior convictions.) He stressed his religious background; his love for music, which began in the church, and related that he had obtained a part in the musical “Hair” while in Paris. During that period he sought and obtained counselling from Mr. Anthony Clay, head of the Quaker Center International in Paris, who described Timmons as “an immature, confused and frightened young man.” Timmons allegedly sought help from his first sergeant before he went absence, but without the hoped for result. He acknowledged that his method of attempting to solve his problems with respect to the Army was wrong.
The findings of guilty in this case are not affected by our determination that the post-trial delay herein was unreasonable, or that the staff judge advocate’s review was prejudicially inadequate. Consequently, the findings of guilty are affirmed. The case is remanded to the U. S. Army Court of Military Review for reassessment of the sentence in view of the errors discussed in this decision.
Dissenting Opinion
(dissenting):
I agree that the staff judge advocate’s post-trial advice is prejudicial. Since that error was not considered by the Court of Military Review, it is now the direct responsibility of this Court to determine whether to remand the record of trial for further corrective proceedings or to dismiss the charge. United States v Timberlake,