United States v. Hosie

6 M.J. 963, 1979 CMR LEXIS 751

Opinions

PER CURIAM:

We have examined the record of trial, the assignment of error, and the Government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

In our opinion the record discloses substantial compliance with United States v. Booker, 5 M.J. 238 (C.M.A.1977), with respect to appellant’s prior nonjudicial punishment of 28 December 1977. The accused signed a statement acknowledging his right to consult with independent counsel and voluntarily, knowingly, and intelligently waived that right. The statement also shows that the accused acknowledged his right to refuse to accept either nonjudicial punishment or summary court-martial. The accused not only initialled his understanding of these rights but also affixed his signature to the statement.

We note that United States v. Booker, supra, was reconsidered by the Court of Military Appeals at 5 M.J. 246 (C.M.A.1978). The requirements of independent advice of counsel and waiver of the right of removal for trial in a “criminal proceeding,” as explained in the initial Booker decision, were founded on the theory that a summary court-martial was a disciplinary hearing limited to “minor military offenses unknown in the civilian society.” Although the reconsideration of Booker resulted in a retraction of this underlying theory, nonetheless it left standing the protective procedures delineating the summary court-martial from general and special courts-martial. Booker I and Booker II are in logical conflict and the field is without guidance to reconcile this dilemma. Accordingly, we believe the service courts will have to weigh each case independently and balance the requirements of Booker I with the logic in Booker II. See United States v. Rivera, 6 M.J. 535 (N.C.M.R.1978).

Accordingly, the findings and sentence as approved below are affirmed.