United States v. Nix

21 C.M.A. 76, 21 USCMA 76, 44 C.M.R. 130, 1971 CMA LEXIS 556, 1971 WL 12467

Opinions

Opinion of the Court

Darden, Chief Judge:

If an accused indicates after a court is called to order that he desires a military judge alone to try him, the court-martial must be recessed and the request executed in writing. United States v Dean, 20 USCMA 212, 43 CMR 52 (1970).

In this case, however, the written request followed the testimony of one witness. This procedure does not comply with the holding in Dean, supra, since acceptance of the written request is a jurisdictional prerequisite. Under Dean we do not test for prejudice.

Accordingly, the decision of the Court of Military Review is reversed and the findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. Another trial may be ordered.

Senior Judge Ferguson concurs.