United States v. Burns

2 M.J. 78, 1976 CMA LEXIS 6311

• Court: United States Court of Military Appeals
• Decided: December 16, 1976
• Docket: No. 31,768; NCM 75-2631
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

The accused was convicted by a special court-martial of various offenses in violation of the Uniform Code of Military Justice. We granted review to consider two questions raised by appellate defense counsel.

Counsel’s first contention is that the post-trial review by the staff judge advocate for the supervisory general court-martial authority was prejudicially incomplete because it did not refer to a post-trial letter by the military judge, in which the judge indicated that he perceived a “discrepancy of significant degree” between the convening authority’s signature on the reference to trial of the original charges and that appearing on the reference to trial of the additional charge. Counsel view the trial judge’s remark as suggestive of “forgery” of one or the other of the references to trial, which demanded discussion by the staff judge advocate in his review. However, there is substantial evidence to indicate that, before acting on the case, the convening authority responded to an inquiry about the matter from the review chief of the staff judge advocate’s office by certifying that the signatures were his. If this certification is insufficient to remove all doubt as to the authenticity of both references to trial, and, thereby justify omission of comment on the matter as an “irregularity” in the proceedings that might affect the supervisory authority in his action on the case, then the unchallenged sworn statement by the convening authority, confirming that he personally signed each order of reference on the date of that order, which has been filed in connection with the appeal, establishes the genuineness of the references to trial beyond all doubt. In these circumstances, a formal inquiry into the matter of the kind sought by appellate defense counsel is unwarranted. See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

In his second assignment of error, the accused contends that he was denied a speedy review of his conviction by the convening and supervisory authorities. Trial was concluded on June 13, 1974. The convening authority acted on the record on September 20, 99 days after trial. The supervisory authority affirmed the conviction on September 3, 1975. Action by the convening authority more than 90 days after completion of trial is presumably prejudicial to the accused, but the presumption is operative only when the accused has been continuously in post-conviction confinement. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). Here, the accused was released from confinement less than 90 days after trial, and was placed on “appellate leave” to enable him to return to the civilian community. Reviewing the circumstances of the delay unaided by the Dunlap presumption and in light of the absence of any error in the trial proceedings that requires correction, we are convinced that the accused was not prejudiced in any substantial right. United States v. Jefferson, 22 U.S.C.M.A. 554, 48 C.M.R. 39 (1973); United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973).

The decision of the United States Navy Court of Military Review is affirmed.