(concurring in part and in the result):
I agree that the Court of Criminal Appeals erred in disregarding the precedents of this Court. Furthermore, I remain unconvinced that United States v. Booker, 5 MJ 238 (CMA 1977), and its progeny should be overruled. Lastly, because there are considerable differences between the sentencing procedures in the United States District Courts, wherein district judges do all the sentencing pursuant to sentencing guidelines, and the sentencing procedures in courts-martial, I do not think that Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), requires us to overrule our precedents. See Nichols, supra at 748-49 n. 12, 114 S.Ct. at 1928 n. 12.
Were I writing on a clean slate, I might conclude that military law does not require that a servicemember receiving nonjudicial punishment under Article 15, Uniform Code of Military Justice, 10 USC § 815, be advised of his or her right to talk with a lawyer, as a condition precedent to consideration of the servicemember’s service record by a sentencing authority. The statute is silent, and quite frankly, I take no comfort in the decisions of the Supreme Court relied upon in Booker as creating such a requirement. And, with all due respect to my colleague, the logic of saying that, because counsel is required in a special or general court-martial, the right to counsel in making the decision whether to accept or reject nonjudieial punishment is therefore dictated is tenuous at best.
Nevertheless, I remain unconvinced that the Services have made a case for us to overrule our precedents. If we enjoyed military-judge sentencing, perhaps different considerations would promote a different result. Quite frankly, the advent of sentencing guidelines in the federal and state systems seemed to play an important role in the Nichols decision.
In the final analysis, the entire system of military justice seems to benefit by the involvement of attorneys in the process. Commanders are less likely to offer nonjudicial punishment for spurious charges; service-members are less likely to refuse nonjudicial punishment if the facts are against them; and servicemembers are less likely to feel railroaded and unfairly treated if they have the opportunity to consult with someone exercising independent critical judgment about the case. I recognize there are some negatives, such as delays caused by unavailability of defense counsel or conflicts of interest among multiple servicemembers, but on balance, I am reminded of the words of the Judge Advocate General of the Navy, Rear Admiral Harold E. Grant: “Military justice is the most important thing that we do in the Navy JAG Corps.” * I say, Amen! Let’s do it right and let’s do it well.
Made on the occasion of the retirement of Commander Mary T. Hall, JAGC, USN, on August 31, 1996.