United States v. Dunbar

28 M.J. 972, 1989 CMR LEXIS 415, 1989 WL 70830
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMay 26, 1989
DocketNMCM 88 3025
StatusPublished
Cited by13 cases

This text of 28 M.J. 972 (United States v. Dunbar) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dunbar, 28 M.J. 972, 1989 CMR LEXIS 415, 1989 WL 70830 (usnmcmilrev 1989).

Opinion

ALBERTSON, Judge:

On 18 October 1985 appellant was tried and convicted at a special court-martial composed of military judge alone of a two and one-half month unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. He was sentenced to reduction to pay grade E-l and a bad-conduct discharge. The convening authority took his action approving the sentence adjudged in appellant’s case on 11 November 1985.

Appellant assigns the following error: APPELLANT WAS DENIED A SPEEDY REVIEW OF HIS COURT-MARTIAL CONVICTION WHERE OVER THREE YEARS ELAPSED BETWEEN THE DATE OF TRIAL AND THE DATE THE RECORD OF TRIAL WAS DOCKETED WITH THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW.

In support of his assignment of error and pursuant to Rule 23, Courts of Military Review Rules of Practice and Procedure, appellant moved1 to attach appellant’s affidavit 2 explaining the specific prejudice that [974]*974he has suffered as the alleged result of the government’s failure to review his case in a timely manner.

A chronology was provided by appellate defense counsel in his brief filed before this Court, which we adopt:

EVENT DATE DAYS ELAPSED

Trial/sentence adjudged 18 October 1985 0

Original record of trial authenticated by military judge 28 October 1985 10

Convening authority acts 11 November 1985 24

Staff Judge Advocate’s Recommendation prepared 20 November 1985 33

Service of Staff Judge Advocate’s Recommendation on Defense Counsel 20 November 1985 33

Message traffic between USS 11 April to 907-

CONQUEST, USS GALLANT and PERSUPP DET SEATTLE indicates original record of trial has been lost 15 May 1988 941

Judge Advocate General writes to convening authority requesting record of trial be located or reconstructed 14 June 1988 971

Military judge authenticates reconstructed record of trial 7 July 1988 994

Two records of trial received at ÑAMARA 28 July 1988 1008

Record of trial docketed at NMCMR 18 November 1988 1121

Appellant, in his assignment of error, identifies his issue as revolving around the inordinate and unexplained delay in the review of his case that commenced on the date his sentence was adjudged. We, on the other hand, find that the convening authority acted quite reasonably when he took his action within 24 days of the adjournment of the appellant’s trial. We do find, however, that appellant’s case has [975]*975languished for 1097 days in post-trial appellate (the time between the convening authority’s action and docketing of the case by the Court of Military Review) limbo without explanation.

The issue we will resolve therefore is whether that 1097 days of delay between the convening authority’s action and the docketing of appellant’s case by this Court denied appellant speedy review such that the Charge and Specification should be dismissed. In the absence of “prejudicial error occurring during the court-martial proceedings, the accused is not entitled to relief by the inordinate delay in forwarding the record to this Court.” United States v. Halcomb, 25 M.J. 750, 752 (NMCMR 1987), pet. denied, 26 M.J. 48 (C.M.A.1988); United States v. Green, 4 M.J. 203 (C.M.A.1978); United States v. Timmons, 22 U.S.C.M.A. 226, 46 C.M.R. 226 (1973). Even if prejudice as a result of inordinate delay occurred at the appellate level, dismissal of the charges is appropriate only when some error in the trial proceedings requires corrective action and the appellant would be prejudiced in the presentation of his case at a rehearing or when no useful purpose would otherwise be served by continuing the proceedings. Green, 4 M.J. at 204; United States v. Gray, 22 U.S.C.M.A. 443, 47 C.M.R. 484 (1973). Upon taking his action on appellant’s case, the convening authority, by approving the sentence adjudged, found no prejudice occurring during the appellant’s court-martial proceeding that required corrective action. Furthermore, appellant does not assert on appeal any error that occurred during his court-martial proceeding that would require a rehearing such that the inordinate delay in the review of his case would cause him to be prejudiced in the presentation of his ease should this Court order a rehearing, nor has he shown that no useful purpose would otherwise be served were the proceedings continued. United States v. Johnson, 3 M.J. 143, 151 (C.M.A.1977). We have reviewed the record of trial in its entirety and the assignment of error, and finding no prejudice, conclude that the findings and sentence as approved on review below are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. We will discuss the reasons for our concluding that the appellant’s assignment of error is without merit.

I

Appellant does assert that error occurred in the court-martial proceedings because the convening authority’s action, taken on 11 November 1985, was improper because it was taken without the benefit of a staff judge advocate’s recommendation as required by Rule for Courts-Martial (R.C.M.) 1107(b)(3)(A)(ii), Manual for Courts-Martial (MCM), United States, 1984, since the staff judge advocate’s recommendation dated 20 November 1985 was made 9 days after the convening authority’s action. Despite the fact that the convening authority states in his action that he “considered ... the Judge Advocate’s review and comments of the defense counsel dated 18 October 1985,” the Government concedes that it is unable to find any documentation that could be considered comments submitted by the trial defense counsel on 18 October 1985 and that “[t]he reference in the Convening Authority’s Action to comments submitted by trial defense counsel is incorrect____” Government’s Response to Court Order. As noted by the Government, the trial defense counsel was served with a copy of the recommendation on the same day the staff judge advocate’s recommendation was proposed. Trial defense counsel indicated: “I do not desire to make any corrections or comments.” Contrary to the Government’s response, appellant does claim that he was prejudiced by this error because the convening authority was deprived of favorable information about appellant, i.e., “that appellant had performance evaluation marks averaging 3.7, that he had no previous convictions, and that he had served 24 days of restriction prior to his court-martial.” Appellant’s brief at 5. Appellant contends that since this error occurred during the court-martial proceeding, corrective action is required, and the [976]*976proper corrective action is dismissal of the Charge and Specification.

We agree with appellant that the convening authority’s action is part of the court-martial proceedings. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974). We also agree with appellant that the convening authority is required to have the recommendation of his staff judge advocate or a legal officer before he takes his convening authority’s action. Article 60(d), UCMJ, 10 U.S.C. § 860(d); R.C.M. 1107(b)(8)(A)(iii), MCM, 1984.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Schlarb
46 M.J. 708 (Navy-Marine Corps Court of Criminal Appeals, 1997)
United States v. Gonzales
46 M.J. 667 (Navy-Marine Corps Court of Criminal Appeals, 1997)
United States v. Cunningham
44 M.J. 758 (Navy-Marine Corps Court of Criminal Appeals, 1996)
United States v. Williams
42 M.J. 791 (Navy-Marine Corps Court of Criminal Appeals, 1995)
United States v. Williamson
42 M.J. 613 (Navy-Marine Corps Court of Criminal Appeals, 1995)
United States v. Cruz
38 M.J. 611 (U.S. Navy-Marine Corps Court of Military Review, 1993)
United States v. Dupree
37 M.J. 1089 (U.S. Navy-Marine Corps Court of Military Review, 1993)
United States v. Smith
34 M.J. 894 (U.S. Navy-Marine Corps Court of Military Review, 1992)
United States v. Norris
33 M.J. 635 (U S Coast Guard Court of Military Review, 1991)
United States v. Dahood
32 M.J. 852 (U.S. Navy-Marine Corps Court of Military Review, 1991)
United States v. Kelly
32 M.J. 813 (U.S. Navy-Marine Corps Court of Military Review, 1991)
United States v. Dunbar
31 M.J. 70 (United States Court of Military Appeals, 1990)
United States v. Petty
30 M.J. 1237 (U.S. Army Court of Military Review, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
28 M.J. 972, 1989 CMR LEXIS 415, 1989 WL 70830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dunbar-usnmcmilrev-1989.