United States v. Harris

10 M.J. 276, 1981 CMA LEXIS 16154

• Court: United States Court of Military Appeals
• Decided: March 2, 1981
• Docket: No. 39,435; NCM 80 0231
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

We heard this case¹ pursuant to a certification from the Judge Advocate General of the Navy. We are directed to the following question: “Was the U. S. Navy Court of Military Review correct as a matter of law where it held that the supervisory authority failed to satisfy the requirements of paragraph 85c, Manual for Courts-Martial, 1969 (Rev.)?”

Appellant’s sentence included a bad-conduct discharge, confinement at hard labor, for 4 months, forfeiture of $250 pay per month for 4 months and reduction to pay grade E-1. The convening authority approved the sentence as adjudged, specifically considering the recommendation for clemency from the military judge and a clemency petition submitted by the trial defense counsel. The supervisory authority, likewise, approved the sentence as adjudged, disagreeing with his staff judge advocate’s recommendation for clemency. His action was formulated in the following language:

In taking my action, I considered all requests for clemency appended to this case, to include the recommendation for suspension by the Staff Judge Advocate in his written review. In the view of the serious nature of the offenses, however, I concur with the convening authority and elect not to effectuate clemency in this case.

We agree with the court below that this position is not minimally sufficient under paragraph 85c, Manual, supra. The portion of this paragraph requiring justification “becomes operative whenever the convening authority takes an action different from that recommended by his staff judge advocate.” United States v. Keller, 1 M.J. 159, 160 (C.M.A.1975). Distinguishing between a convening authority and a supervisory authority “is [in this regard] merely a matter of nomenclature.” United States v. Dixson, 9 M.J. 72, 74 (C.M.A.1980).

We continue to believe that,

[Requiring government officials to justify their actions is a healthy procedure which encourages more effective government and enhances the integrity of any criminal justice system. With this in mind, we reaffirm our previous decisions which have construed the justification provision as mandatory rather than discretionary.

United States v. Keller, supra.

Reviewing the action presented in this case we are compelled under Keller and Dixson to answer the certified question in the affirmative.

1 . Tried by special court-martial, the appellant was found guilty of four specifications in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.