United States v. Schrock

11 M.J. 797, 1981 CMR LEXIS 695

• Court: U S Air Force Court of Military Review
• Decided: July 7, 1981
• Docket: ACM S25167
• Status: Published

Opinions

DECISION

MAHONEY, Judge:

Two of the three assigned errors concern the post-trial review of the staff judge advocate:

I

THE STAFF JUDGE ADVOCATE ERRED BY INCLUDING IN HIS POST-TRIAL REVIEW, INFORMATION THAT THE ACCUSED USED DRUGS WHILE ENROLLED IN THE DRUG REHABILITATION PROGRAM.

II

THE REVIEWER’S FAILURE TO INFORM THE SUPERVISORY AUTHORITY OF HIS OPTION TO SUSPEND THE BAD CONDUCT DISCHARGE CONSTITUTES ERROR.

Against these assigned errors we juxtapose the entire Goode response of the trial defense counsel:

1. I have reviewed the record of trial, Staff Judge Advocate’s post trial review and clemency documents in the special court-martial of Airman Basic William E. Schrock.

2. The defense objects to all incomplete, misleading, erroneous, and prejudicial matters addressed or omitted in the record of trial, post trial review and clemency evaluations.

The stated purpose of the rule established in United States v. Goode, 23 U.S. C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975), was to diminish the “continual and often repeated claims of error [in the staff judge advocate’s review] plus the delay in determining their validity and correction .... ” The rule requires that “a copy of the written review required by Article 61 or 65(b), U.C.M.J., 10 U.S.C. § 861 or 865(b), be served upon counsel for the accused with an opportunity to correct or challenge any matter he deems erroneous, inadequate, or misleading, or on which he otherwise wishes to comment.” In the furtherance of the purpose of the rule, this Court has extended it to require that “when the defense counsel submits comments or challenges to the review of the staff judge advocate ..., the staff judge advocate must, at a minimum, indicate his concurrence or disagreement with those comments prior to submitting them to the officer exercising general court-martial authority.” United States v. Boston, 7 M.J. 954, 955 (A.F.C.M.R. recon.1979). The consequence of a failure by the defense counsel to make timely or specific comments upon review errors is normally a waiver. United States v. Goode, supra.

In this case, the trial defense counsel’s boiler-plate objection, while seeking to preserve every possible error, preserved none. Such lack of specificity misses the point of Goode, and fails even to trigger a duty to comment under Boston. Moreover, defense counsel failed to distinguish between review errors and trial errors. To preserve review errors for appellate review, trial defense counsel should specifically and succinctly identity them in the Goode response.¹ The failure to do so in this case, and to thus afford the staff judge advocate the opportunity to correct the review prior to action by the convening authority, results in a waiver of the review errors assigned by appellate defense counsel.²

We have considered the remaining assignment of error and found it to be without merit. The approved findings of guilty and sentence are correct in law and fact and are

AFFIRMED.

ARROWOOD, Senior Judge, concurs.

1 . Scant purpose is served in cluttering up a Goode response with the merits of trial errors. If trial defense counsel deems it appropriate to address trial errors, United States v. Palenius, 2 M.J. 86 (C.M.A.1977), the appropriate vehicle is a post-trial brief. Article 38(c), 10 U.S.C.A. § 838(c), Uniform Code of Military Justice.

2 . The issue in the first assigned error was recently resolved adversely to the defense position. United States v. Schmenk, 11 M.J. 803 (A.F.C.M.R.1981). Informing the convening authority that the accused had previously been unsuccessful in a drug rehabilitation program was particularly appropriate in this case, in view of the military judge’s observation that, based upon the limited information available to him in the sentencing portion of the trial, the accused appeared to be a suitable candidate for rehabilitation and restoration to duty.