United States v. Dixson

9 M.J. 72, 1980 CMA LEXIS 11698

• Court: United States Court of Military Appeals
• Decided: July 7, 1980
• Docket: No. 33,063; NCM 76 1295
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Judge.

At a special court-martial, the appellant was found guilty of various drug offenses¹ under the Uniform Code of Military Justice. The military judge sentenced him to a bad-conduct discharge, 4 months’ confinement at hard labor, forfeiture of $100 per month for 6 months, and reduction to E — 1. In addition, he specifically recommended that the punitive discharge as well as confinement in excess of 2 months be suspended by the convening authority. See Article 71(d), Uniform Code of Military Justice, 10 U.S.C. § 871(d).

The convening authority, who was not a general court-martial convening authority, approved the sentence but he did not suspend the discharge or any portion of the confinement. See para. 91b (1), Manual for Courts-Martial, United States, 1969 (Revised edition). He then forwarded the record to his supervisory authority in accordance with Article 65(b), UCMJ, 10 U.S.C. § 865(b). The supervisory authority forwarded this record of trial to his staff judge advocate for the mandated advice as to approval of findings and sentence. Articles 61 and 65(b), UCMJ, 10 U.S.C. §§ 861 and 865(b).

The staff judge advocate recommended that the findings and sentence be approved. He also recommended that the supervisory authority suspend the discharge in light of the earlier recommendation of the military judge, the multiplicity factor involved in these offenses, and the appellant’s prior record. See para. 85b, Manual, supra. On May 3, 1976, the supervisory authority approved the findings and sentence but did not suspend the discharge. Article 65(b), supra. This action was taken contrary to that recommended by the staff judge advocate, but the supervisory authority failed to forward a letter of justification of his action to the Judge Advocate General of the Navy. See para. 85c,² Manual, supra; see also United States v. Keller, 1 M.J. 159 (C.M.A.1975).

The Navy Court of Military Review affirmed the finding and sentence. We granted review in this case on an issue not raised before the Court of Military Review. The issue specified by order of the Court was:

WHETHER THE SUPERVISORY AUTHORITY IS REQUIRED BY PARAGRAPH 85c,- MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969 (REVISED EDITION) TO SUBMIT A LETTER EXPLAINING HIS ACTION WHICH IS CONTRARY TO THE RECOMMENDATION OF HIS STAFF JUDGE ADVOCATE?

A subsequent government Motion to Attach A Document to the Record of Trial was granted by this Court. This document dated January 5, 1977, was a letter from the supervisory authority to the Judge Advocate General of the Navy explaining why he took action different from that recommended by his staff judge advocate.

The first issue to be addressed in this case is the applicability of paragraph 85 c, Manual, supra, and our decision in United States v. Keller, supra, to a supervisory authority taking approval action on a court-martial. The Government does not urge us to differentiate between a convening authority’s action under Article 60, UCMJ, 10 U.S.C. § 860, and a supervisory authority action under Article 65(b), supra. We find that any distinction between these two officers under these circumstances is merely a matter of nomenclature. See para. 91b, Manual, supra. They, as laymen, perform the same legal function after the court-martial, and accordingly, the same governing legal principles should apply.

We do not mean to imply by any statements made in the resolution of this matter, or by any conclusions reached in United States v. Keller, supra, that the convening authority or supervisory authority cannot reject the recommendations of his legal adviser. We only hold that if the authority does reject these recommendations, he is required to articulate his reasons for doing so.

A second issue more earnestly pursued by the Government concerns the correctness of our earlier decision in United States v. Keller, supra.3 The Government once again has raised the same linguistic arguments which were rejected by a majority of this court 5 years ago. Such a position has no more attraction today than it did then. It is inconsistent with the well accepted principle of command accountability' in court-martial matters.⁴

The final issue to be confronted by this Court concerns the appropriate remedial action to be ordered for such error. The Government urges us to affirm the sentence since the letter of the supervisory authority is presently attached to the record of trial and the appellant has therefore suffered no prejudice. Such a course of action, though at first blush attractive, is inappropriate in the appellant’s case.

We believe that in cases where this letter is required by Presidential order, it is a prerequisite to complete appellate review by the Court of Military Review and ourselves. When the Court of Military Review is fulfilling its obligation under Article 66(c), UCMJ, 10 U.S.C. § 866(c), as to sentence, it should have available for its consideration not only those matters which are part of the record of trial as to sentence, but also all allied papers pertaining to the approved sentence that the Manual for Courts-Martial requires to be present. In this case one important document was absent; so the appellant is entitled to relief. In United States v. Keller, supra, no belated letter of justification was attached to the record of trial at the time our decision was published.⁵ Accordingly, we believed it inappropriate to send that case back 20 months after the convening authority’s action for the preparation of such a letter and the subsequent appellate review. In appellant’s case, the letter was prepared 8 months later and attached to the record of trial prior to our decision in this case. While we cannot condone such conduct, the lapse of time is not so critical as to justify the Keller relief.

The decision of the United States Navy Court of Military Review as to findings is affirmed. As to sentence, its decision is reversed. The record of trial is returned to the Judge Advocate General of the Navy for transmittal to the Court of Military Review. The Court of Military Review is directed to conduct a full review of appellant’s sentence in light of the belated letter.

Chief Judge EVERETT concurs.

1 . Contrary to his pleas, the appellant was found guilty of violating a lawful general regulation by wrongfully possessing, transferring and selling marihuana. The six specifications, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, stemmed from two incidents on different dates involving two different amounts of marihuana.

2 . Paragraph 85 c, Manual for Courts-Martial, United States, 1969 (Revised edition), provides in part as follows:

In any case which is forwarded to the Judge Advocate General, if the convening authority takes an action different from that recommended by his staff judge advocate or legal officer, he should state the reasons for his action in a letter transmitting the record to the Judge Advocate General.

We'note that the identical language was promulgated by the President of the corresponding paragraph of the Manual for Courts-Martial, United States, 1951.

3 . See United States v. Eller, 20 U.S.C.M.A. 401, 402, 43 C.M.R. 241, 242 (1971); United States v. Wetzel, 19 U.S.C.M.A. 370, 374, 41 C.M.R. 370, 374 (1970).

4 . See n.2, supra; see also Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T. Ansell, 35 Mil.L.Rev. 1-15, 29 (1967).

5 . The Court in United States v. Keller, 1 M.J. 159 (C.M.A.1975), was obviously concerned about the lapse of time between the convening authority’s action and the subsequently ordered preparation of a justification letter. Twenty months had already elapsed at the time of this decision with more delay a distinct probability. One week after the Court’s decision, the Government filed a motion for reconsideration with a belated letter attached thereto. This letter had not been filed earlier because the ■Government felt the rescission of an earlier order of this Court requiring such a document and prior case law indicated no such submission was necessary. The Government argued that in light of this letter the sentence should now be affirmed by this Court or that the Court of Military Review should be given unfettered discretion in reviewing the original sentence. This motion was denied by order of the Court on October 3, 1975.