United States v. Dupuis

10 M.J. 650, 1980 CMR LEXIS 468
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 17, 1980
DocketNCM 79 1621
StatusPublished
Cited by11 cases

This text of 10 M.J. 650 (United States v. Dupuis) 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. Dupuis, 10 M.J. 650, 1980 CMR LEXIS 468 (usnmcmilrev 1980).

Opinion

GLADIS, Judge:

The accused was convicted pursuant to his pleas at a special court-martial bench trial of a 55-day unauthorized absence, six failures to go to his appointed place of duty, contempt toward a superior petty officer, and wrongful possession of marijuana, in violation of Articles 86, 91, and 92, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 891, and 892. He was acquitted of seven other specifications alleging offenses in violation of these Articles when the Government offered no evidence thereon in accordance with the pretrial agreement. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement at hard labor for 1 month, forfeiture of $275.00 per month for 3 months, and reduction to pay grade E-l but probationally suspended the discharge and forfeitures in excess of $250.00 per month for 2 months. The officer exercising general court-martial jurisdiction approved the sentence as approved by the convening authority. Subsequently, in a supplemental action, another officer exercising general court-martial jurisdiction ordered the suspension of the discharge vacated.

The accused contends on appeal, among other things, that he was prejudiced by an unwarranted multiplication of charges at trial and by erroneous information in the report of vacation proceedings, that the vacation proceedings were defective, and that the evidence was insufficient to support vacation of the suspension of the discharge. We find that the accused was prejudiced by erroneous information contained in the report of vacation proceedings and that the proceedings were defective because conflicting evidence was not adequately evaluated. For these reasons additional proceedings are required, even though there may be sufficient evidence in the record to meet the requirement that the violation of probation be established by a preponderance of the evidence. We reject the other assignments of error.

Multiplication of Charges

The accused will not be heard to complain at this level of an unreasonable multiplication of charges when the defense did not object at trial. In the absence of a miscarriage of justice, failure to object constitutes a waiver. See paragraph 67b, Manual for Courts-Martial, 1969 (Rev.).

Erroneous Information in Report of Vacation Proceedings

The Report of Proceedings to Vacate Suspension (DD Form 455) indicates that the accused was convicted of seven [653]*653specifications of which he was in fact acquitted. The officer exercising special court-martial jurisdiction who conducted the vacation proceedings was probably not misled. He had signed the pretrial agreement which provided that the Government would not offer evidence on these specifications if the accused’s pleas of guilty to the remaining specifications were accepted, and he had also reviewed the record of trial. We cannot say, however, that the officer exercising general court-martial jurisdiction was not misled or would have ordered vacation of the suspension of the bad-conduct discharge if he had known the accused had been acquitted of these seven offenses. He was not the officer who had taken the supervisory action on the record of trial. Appellate Government counsel argues that this officer was aware of the facts because he considered the court-martial order, which contained the correct information and which was attached to the report. The record before us reveals that a copy of the court-martial order was not attached to the report, but rather was forwarded under separate cover to the general court-martial authority. In his action vacating the suspension, that authority stated he had considered the report and certain statements. There is no indication that he was aware of the information in the court-martial order when he took his action. Cf. United States v. Johnson, 21 U.S.C.M.A. 270, 273, 45 C.M.R. 44, 47 (1972). Probation must not be revoked because of erroneous information or because of an erroneous evaluation of the need to revoke, given the breach of conditions of probation. See Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). We conclude that the accused was prejudiced by consideration of the erroneous information by the general court-martial authority. The action ordering vacation of the suspension must be set aside.

Evaluation of Conflicting Evidence

Citing United States v. Ward, 5 M.J. 685 (N.C.M.R.1978), the accused also contends that the vacation proceedings were defective because neither the decision maker (the officer exercising general court-martial jurisdiction) nor the hearing officer (the officer exercising special court-martial jurisdiction) made findings of fact.

The requirements for vacation proceedings are set forth in United States v. Bingham, 3 M.J. 119 (C.M.A.1977). In Ward, supra, we construed Bingham to require that the hearing officer provide an evaluation of any contested facts and a determination of whether the facts as found warrant revocation of the suspension. The Supreme Court requires such an evaluation and determination after a hearing which is the basis for revocation of parole. Morrissey v. Brewer, supra. In Bingham, the Court of Military Appeals found that constitutional due process requirements make the Morrissey standards, as tailored in Bingham, applicable to military proceedings to vacate suspended sentences in accordance with Article 72, UCMJ, 10 U.S.C. § 872.

In this case, although the facts were disputed at the hearing, the special court-martial authority provided no evaluation. The Government argues that no evaluation of findings of fact by the hearing officer is required because the general court-martial authority recited the evidence he considered by naming all the witnesses whose conflicting statements he considered and ordered vacation as a result of his finding that the accused used marijuana, the alleged violation of probation and fact in issue.1 In Ward, although we said that the hearing officer must evaluate any contested facts and determine whether the facts found warrant revocation, we reversed because neither the hearing officer nor the decision maker did so. Morrissey requires that the revocation hearing lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. In effect, we held in Ward that Bingham imposes this requirement on military revocation proceedings. Although it is preferable that this be accomplished in the first instance by the [654]*654hearing officer (special court-martial authority) in order to facilitate review, we do not believe that his failure to do so is fatal if the decision maker (general court-martial authority) remedies the defect by making the necessary evaluation and findings of fact. We recognize that in Ward we ordered the case returned to the special court-martial authority. To the extent that Ward

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Bluebook (online)
10 M.J. 650, 1980 CMR LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dupuis-usnmcmilrev-1980.