United States v. Flute

18 C.M.A. 187, 18 USCMA 187, 39 C.M.R. 187, 1969 CMA LEXIS 558, 1969 WL 5947

• Court: United States Court of Military Appeals
• Decided: March 14, 1969
• Docket: No. 21,703
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

We granted review in this case to determine whether Article 38(b), Uniform Code of Military Justice, 10 USC § 838, had been complied with. The record reflects that, at the outset, a pro forma inquiry was made to determine whether the accused had been advised of his rights concerning counsel as set forth in Article 38(b) of the Code.

In United States v Donohew, 18 USCMA 149, 39 CMR 149, decided March 7, 1969, we held that this type of inquiry constituted minimal compliance with Article 38(b). However, as we stated in Donohew:

“We believe the seriousness of the situation dictates that the record should contain the accused’s personal response to direct questions incorporating each of the elements of Article 88(h), as well as his understanding of his entitlement thereunder.

“Accordingly, the record in each special or general court-martial convened more than thirty days after the date of this [Donohew] opinion should reflect this requirement has been met. United States v Rinehart, 8 USCMA 402, 24 CMR 212.” [Emphasis supplied in part.]

The decision of the board of review is affirmed.