United States v. Hagen

9 M.J. 659, 1980 CMR LEXIS 601

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 28, 1980
• Docket: NCM 79 0797
• Status: Published

Opinions

GLADIS, Judge:

On appeal the accused contends, among other things, that the staff judge advocate’s review was inadequate because it failed to discuss the speedy trial issue litigated at trial. We agree and return the record for another review and supervisory authority’s action.

Relying on Chief Judge Fletcher’s opinion, concurring in the result, in United States v. Morrison, 3 M.J. 408 (C.M.A.1977), the staff judge advocate refused to discuss the speedy trial issue. He interpreted that opinion together with Judge Perry’s concurrence in that case to promulgate new standards for the post-trial reviews of staff judge advocates requiring discussion of pure legal issues only where errors of law are perceived. Trial defense counsel challenged the adequacy of the review when served with a copy, thereby preserving the issue on appeal. See United States v. Goode, 1 M.J. 3 (C.M.A.1975).

In Morrison, Chief Judge Fletcher expressed concern over the elevated status of the staff judge advocate’s review, called for a reevaluation of Article 61, Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. § 861, unencumbered by the detailed exactitudes of Manual for Courts-Martial, 1969 (Rev.), paragraph 85 b, and proposed new standards for the review. A careful reading of his opinion reveals that he considered the new and simplified standards espoused to be mere proposals and not to have the force of law. United States v. Morrison, supra at 412 n.14 (Fletcher, C. J., concurring in the result). In the principal opinion in the case Judge Cook indicated that the majority of the Court had not adopted the proposals. See id. at 409 n.l. In an opinion concurring with Judge Cook’s disposition of the issue before the Court, Judge Perry noted that he agreed with Chief Judge Fletcher’s views concerning the unduly elevated status of the staff judge advocate’s review.¹ Judge Perry did not, however, indicate his acceptance of the new standards proposed by Chief Judge Fletcher. Thus we conclude that Chief Judge Fletcher’s proposals in Morrison are dicta. His opinion does not promulgate simplified standards having the force of law. The existing requirements of the Manual and the judicial interpretations of it must be followed. United States v. Cordova, 7 M.J. 673, 675 n.1 (A.C.M.R.1979); United States v. Davis, 6 M.J. 874, 880 n.22 (A.C.M.R. 1979). Therefore, we must determine whether the review in this case satisfies the requirements of the existing law.

Although the staff judge advocate has wide discretion in determining matters to be included in his review, his exercise of that discretion is subject to review for abuse. United States v. Cruse, 21 U.S.C.M.A. 286, 45 C.M.R. 60 (1972). An appropriate discussion of any point that might substantially influence the convening authority’s action is required. A review that is incomplete or misleading on a significant factor is unacceptable. Id.; United States v. McCadney, 1 M.J. 732 (A.F.C.M.R.1975). The review should deal appropriately with any issue which could have determined the ultimate outcome of the case and contain all pertinent information which might substantially influence the decision of the convening authority. United States v. Williams, 7 M.J. 725 (A.C.M.R.1979); United States v. Hernandez, 3 M.J. 916 (A.C.M.R.1977) (motion to dismiss for lack of jurisdiction by reason of improper referral); United States v. Townsend, 39 C.M.R. 445 (A.B.R.1968) (motion to dismiss for lack of speedy trial). The purpose of the review is to assist the convening authority in the exercise of his statutory responsibility to approve only such findings of guilty and sentence as he finds correct in law and fact and as he in his discretion determines should be approved. Article 64, U.C.M.J., 10 U.S.C. § 864; United States v. Williams, supra. This purpose cannot be fulfilled, and Article 61, U.C.M.J., which mandates the review, is meaningless unless the review provides the convening authority with lucid guideposts for deciding the issues which he is required to decide.²

Examining the staff judge advocate’s review in the light of these principles, we find it is deficient. In view of our disposition, it is unnecessary to address the remaining assignment of error. Accordingly, the action of the officer exercising general court-martial jurisdiction is set aside. The record is returned to the Judge Advocate General of the Navy for referral to an appropriate general court-martial convening authority for a new staff judge advocate’s review and supervisory authority’s action.

GREGORY, J., concurs.

1 . The basis for disposition was that alleged deficiencies in a review consisting of ambiguities which may be interpreted in a proper or improper manner are waived by trial defense counsel’s failure to object when afforded the opportunity to do so pursuant to United States v. Goode, 1 M.J. 3 (C.M.A.1975).

2 . But cf. United States v. Cansdale, 7 M.J. 143, 149 (C.M.A.1979), which criticizes requiring a nonlawyer convening authority to pass upon the correctness of the rulings of a military judge. If such review by the convening authority is incongruous, the solution is legislative amendment of the statute which imposes the duty in order to relieve him of it, not judicial emasculation of another statute which is intended to require meaningful guidance as to the applicable principles of law to be followed by him in performing the difficult duty.