United States v. Matthews

73 M.J. 935, 2014 CCA LEXIS 832

Opinions

McClelland, Chief Judge:

Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of desertion, in violation of Article 85, Uniform Code of Military Justice (UCMJ); and one specification of Wrongful use of marijuana, in violation of Article 112a, UCMJ. The military judge sentenced Appellant to confinement for twelve months, reduction to E-3, and a bad-eonduet discharge. The Convening Authority approved the sentence but suspended confinement in excess of ten months. The pretrial agreement called for disapproval of confinement in excess of ten months.

Before this court, Appellant has assigned the following errors:

I. The Convening Authority was a witness to ASTI Matthews’ misconduct and greatly impacted by that misconduct. He was biased and should have been disqualified from taking action in his ease.

II. The Convening Authority’s action is fatally flawed.

III. The approved sentence was inappropriately severe and the bad-conduct discharge should be set aside.

We discuss the first issue and remand for a new convening authority action by a different convening authority. We do not reach the other issues.¹

Appellant, stationed at Coast Guard Air Station Barbers Point, deserted his unit, left his car on a cliff above a beach, and went camping in the woods. (Prosecution Ex. 1.) The Coast Guard launched a search for him by vessel and aircraft because it was thought that he might have gone into the water. (R. at 102-03.) Air Station Barbers Point flew eighteen sorties for sixty-four hours over three to four days, involving every pilot including the commanding officer, in the course of the search. (R. at 82.)

Appellant argues that the Convening Authority, as the commanding officer of Air Station Barbers Point and responsible for the search efforts carried out by the air station’s assets, was so closely connected to this case that he had a disqualifying personal interest in the case.² This issue was first raised shortly before the Convening Authority acted on the record, in Appellant’s request for clemency requesting sentence relief.

Whether a convening authority is disqualified from taking action after trial is a question of law that is reviewed de novo. United States v. Taylor, 60 M.J. 190, 194 (C.A.A.F.2004); United States v. Davis, 58 M.J. 100, 102 (C.A.A.F.2003).

A convening authority is disqualified when he or she has a connection to a case of a personal rather than official nature. United States v. Reed, 2 M.J. 64, 68 (C.M.A.1976). The test is “whether, under the particular facts and circumstances ... a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation.” United States v. Jeter, 35 M.J. 442, 445 (C.M.A.1992) (quoting United States v. Gordon, 1 USCMA 255, 260, 2 C.M.R. 161, 166 (1952)).

In this case, the Convening Authority himself flew sorties searching for Appellant. Although he did so in an official Coast Guard capacity, it was in his capacity as a pilot, entailing personal risks to himself and his flight crew. We see his pilot capacity as different from his capacity as Appellant’s commanding officer. We believe a reasonable person would impute to him a personal interest in this case.³ See Jeter and eases cited therein, 35 M.J. at 446. We conclude that he was disqualified from taking post-trial action as the Convening Authority.

Decision

We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty are affirmed. The action of the Convening Authority is set aside. The record is returned for a new action by a different convening authority. Thereafter, the record shall be returned to this Court for review of the sentence.

Judge KOVAC concurs.

1 . However, we note that the Convening Authority’s action and promulgating order do contain flaws.

2 . Appellant also argues that the Convening Authority displayed a predetermined attitude on clemency. We find no merit in this argument.

3 . This does not mean that we believe the Convening Authority harbored some actual "personal resentment,” in the words of the dissent.