United States v. Thompkins

2 M.J. 1249, 1976 CMR LEXIS 924

Opinions

DECISION

FORAY, Judge:

Upon trial by special court-martial with members, the accused was convicted, contrary to his pleas, of two offenses of absence without leave, in violation of Article 86, 10 U.S.C. § 886, Uniform Code of Military Justice. The approved sentence extends to a bad conduct discharge.

The accused did not request appellate representation nor did he submit any assignment of error for our consideration. That notwithstanding, we have found an error which requires remedial action.

In the post-trial review of the staff judge advocate in this case, the author included his opinion as to the weight and adequacy of the evidence

Footnotes

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* introduced at the trial as follows:

The competent evidence of record is both legally and factually sufficient to sustain the findings of the court as to the accused’s absence without authority from his organization during the periods. .

In United States v. Monahan, 23 U.S.C. M.A. 539, 50 C.M.R. 710, 3 M.J. 489 (1975), the Court of Military Appeals held a similarly stated opinion as to the adequacy and weight of the evidence contained in the staff judge advocate’s post-trial review of that. case to be prejudicially misleading. The wording of that opinion was:

I have found sufficient competent evidence of that offense to which the accused pleaded not guilty to uphold the military judge’s finding of guilty.

Here, as in Monahan, the author of the post-trial review failed to mention that he weighed competent evidence of record and found it to establish the accused’s guilt beyond a reasonable doubt.

A copy of the post-trial review was served on this accused’s trial defense counsel pursuant to the mandate estab lished by the Court of Military Appeals in United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). . However, Counsel did not avail himself of the opportunity to correct or challenge erroneous, inadequate, or misleading matters, or to comment on any other matter, within the five days of the service of the review on him as provided by Goode. We do not find his failure to do so to constitute a waiver of the error in the review. In our view, the waiver provision of Goode was not intended to apply to the substantive requirements for post-trial reviews, one of them being that which is involved here. United States v. Robinson, 51 C.M.R. 484, 1 M.J. 722 (A.F.C.M.R.1975); United States v. Cumberledge (f. rev.), 51 C.M.R. 696, 1 M.J. 768 (A.F.C.M.R.1975).

The deficiency in the staff judge advocate’s post-trial review of this case requires us to set aside the action of the convening authority. Accordingly, the record of trial is returned to The Judge Advocate General, United States Air Force, for referral to the convening authority for a new review and action.

LeTARTE, Chief Judge, concurs.

Manual for Courts-Martial, 1969 (Rev.), paragraph 85b.