United States v. Walker

20 M.J. 971, 1985 CMR LEXIS 3347

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: August 15, 1985
• Docket: NMCM 85 2514
• Status: Published

Opinion

PER CURIAM:

We have examined the record of trial, the assignment of error, and the Government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

The military judge’s thirty-day authorized leave is not the brief absence contemplated by R.C.M. 1104(a)(2)(B) so that it was necessary to delay the post-trial proceedings until the military judge returned to authenticate the record. Rather this was a patently prolonged absence which triggers substitute authentication procedures under R.C.M. 1104(a)(2)(B). Even United States v. Lott, 9 M.J. 70 (C.M. A.1980), contemplates a timely authentication by the military judge. United States v. Lott, supra, at 71. See also United States v. Cruz-Rijos, 1 M.J. 429, 431 (C.M. A.1976). Even assuming error, the record of trial discloses that there were no corrections made thereto, much less the extensive corrections noted in Cruz-Rijos. The trial defense counsel examined the record prior to authentication and proposed no changes thereto. There is now no claim that the record of trial is inaccurate. In assessing the assumed error for prejudice, we find none. See United States v. Skaar, 20 M.J. 836 (NMCMR 1985) (en banc). Accordingly, the findings of guilty and the sentence as approved on review below are affirmed.