United States v. Jolliff

22 C.M.A. 95

Opinion

Opinion of the Court

Per Curiam:

Article 6(c), Uniform Code of Military Justice, 10 USC § 806 prohibits any person who has acted as investigating officer in any case from later acting as “a staff judge advocate or legal officer to any reviewing authority upon the same case.” Here, the Article 32 investigating officer later prepared a draft of the post-trial review which became the basis of the formal advice by the staff judge advocate to the convening authority. It is apparent, therefore, that contrary to the command of Article 6(c), thé Article 32 officer “assist[ed] in inducing the approval” of the action of the court-martial by the convening authority. United States v Crunk, 4 USCMA 290, 294, 15 CMR 290, 294 (1954). See also United States v Coulter, 3 USCMA 657, 14 CMR 75 (1954).

Unlike the record in United States v Marsh, 20 USCMA 42, 42 CMR 234 (1970), the record before us does not indicate that the investigating officer’s later role in the case was known to, and approved by, the accused. We are, therefore, unable to agree with the Court of Military Review that the fact, much less the appearance, of evil inherent in the dual role was demonstrably eliminated. Accordingly, we reverse its decision and set aside the action of the convening authority. New review proceedings consistent with the Uniform Code, supra, may be held. United States v Hightower, 5 USCMA 385, 18 CMR 9 (1955).