United States v. Lanford

Latimer, Judge

(concurring):

I concur.

In considering the principles controlling this issue, I believe it well to accentuate a point made in the Chief Judge’s opinion to the effect that we are resolving the rights and privileges of an accused after a finding and sentence. Some of the strict formality demanded before conviction is relaxed after an accused is convicted and his punishment imposed, and adherence to the rules of evidence is not compelled. In military law, a reviewing authority cannot add to the punishment imposed by a court-martial and so, if any change is made in the sentence, it must be scaled downward. Because of that restriction, an accused cannot be harmed legally by the convening authority, but he can, and often is, helped. His only privilege is to have the sentence re-evaluated in the light of the record and his service behavior pattern. But any favorable action taken by a reviewing officer is largely a matter of grace as, unless the sentence is legally excessive, the reviewing authority has the discretion to affirm the sentence as imposed.

A matter of moment in this instance is that the convening authority need not, as a matter of statute, state any reasons for his action. Absent any regulation to the contrary, the basis for an affirmance or a reduction may remain locked in the mind of the person charged with reviewing the sentence. However, to assist subsequent reviewing authorities in their consideration of the sentence, the Navy Department has by regulation imposed the following requirement on the reviewing officers:

“ ** * * The convening authority, in those cases where the sentence adjudged extends to a punitive discharge, shall include in his initial action a brief synopsis of the accused’s conduct record during the current enlistment or current enlistment as extended. * * * The synopsis should also include medals and awards, commendations and any other information of a commendable nature. Although not required, similar action may, if circumstances are deemed appropriate, be taken in other cases. The foregoing is not intended to usurp the legal requirements as to the admissibility of record of previous conviction.’ Bureau of Naval Personnel Instruction 1626.13, 7 October 1954.”

I do not believe in this setting it is necessary for us to argue at length on the refined distinctions between the powers of courts, convening authorities, and boards of review to commute or exercise clemency, and their authority to determine the appropriateness of sentence. Undoubtedly, the two intermingle in certain areas but the important question for determination here is not whether the powers are commingled but rather whether the Naval Regulation is invalid because it violates a fundamental right of an accused or is contrary to law.

The first question to be considered is whether the regulation occupies a field which is collated properly to the appropriateness of a sentence. Paragraph 76a of the Manual for Courts-Martial, United States, 1951, sets out the basis upon which a court-martial should determine the kind and amount of punishment imposed. In subsection (2) of that paragraph it provides:

“. . . In the exercise of its discretion in adjudging a sentence, the court should consider evidence contained in the record respecting the character of the accused as given in former discharges, the number and character of previous convictions, the nature and duration of any pretrial restraint, and the circumstances extenuating or aggravating the offense.”

In connection with the imposition of *383the bad-eonduct discharge, subsection (7) of the same paragraph provides:

“A bad conduct discharge may be imposed in any case in which a dishonorable discharge may be imposed as well as in certain other cases. It is a less severe punishment than dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment for serious offenses of either a civil or military nature. It is appropriate as punishment for an accused who has been convicted repeatedly of minor offenses and whose punitive separation from the service appears to be necessary.”

I mention the matters to be considered by the court-martial to illustrate the point that in that forum when consideration is being given to the appropriateness of sentence, it is recognized that the punishment to be imposed may be affected substantially by the military character of the accused and the number of offenses committed by him. While, to be admissible in court, the offenses must have resulted in a conviction, a different principle applies to a convening authority.

Article 64 of the Uniform Code of Military Justice, 50 USC § 651, fixes his authority to act upon findings and sentence, and it provides:

“In acting on the findings and sentence of a court-martial, the convening authority shall approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved.”

That Article is discussed in paragraph 886 of the Manual, which sets out suggested guides; but they are not intended to be all inclusive. It will be observed from the following quotation that pertinency is the only mentioned limitation:

“Determining what sentence should he approved. — In determining what sentence, or part thereof, should be approved, the convening authority will be guided by the principles stated in 76. The sentence approved should be that which is warranted by the circumstances of the offense and the previous record of the accused. Appropriate action should be taken to approve a less severe sentence when the sentence, though legal, appears unnecessarily severe. In approving severe sentences, consideration should be given to all factors, including the possibility of rehabilitation as well as the possible deterrent effect.
“The convening authority may properly consider as a basis for approving only a part of a legal sentence not only matters relating solely to clemency, such as long confinement pending trial or the fact that, as an accomplice, the accused testified for the prosecution, but any other pertinent factor.” [Emphasis supplied.]

In the previous quotations is found authority for the court-martial and the convening authority to consider the character of the accused as evidenced by his military record. The court-martial, in imposing sentence, should consider his record as given in former discharges and as shown by the number and character of previous convictions. By Code and by law, it is limited to convictions by courts-martial and there is a good reason for that limitation as a bad character is apt to be seized upon by the court as evidence of guilt of the alleged offense. But no such limitation is imposed on the convening authority probably because conditions are different. He is admonished to consider the over-all previous military record of the accused after guilt has been determined.

As a matter of law, we have held that the convening authority is not fettered by the record of trial and that he may consider many matters not necessarily relevant to the appropriateness of sentence. United States v Simmons, 2 USCMA 105, 6 CMR 105. While Article 15 punishments are not admissible for consideration by a court-martial, they are imposed as punishment for minor offenses and they disclose a definite pattern of military behavior. It is contrary to common sense to say they do not cast light on the desirability of *384retaining an accused in the service, and that is a proper matter to be considered in determining the appropriateness of a punitive discharge. It would seem to me that if any reviewing authority with power to affirm a sentence is to make an honest appraisal of the value of the accused to the military service, he should be permitted to consider all transgressions of the accused reflected in the service record, regardless of their gravity. I, therefore, conclude the information recorded by the convening authority had a direct bearing on the appropriateness of sentence.

The principles that I have so far expounded are not those which have caused boards of review to reach divergent results. The real problem is posed by the next step in the appellate processes as boards of review have reached contrary conclusions on their right to consider the contents of the reviewing authority’s action report. Undoubtedly, they have become confused over the language we used in United States v Simmons, supra. There we stated: “In taking this action [clemency], the convening authority is not limited to the trial record. Article 66 of the Code . . . however, carefully restricts the boards of review to action ‘on the basis of the entire record.’ The board is thus denied access both to the service record of the accused and to the accused himself.”

At first blush, it would appear that the Chief Judge’s holding in this case is contrary to the statement appearing in the above quotation. Certainly it would be, if the service record of the accused had been incorporated in the action of the convening authority on the Simmons case, but it was not. Therefore, I do not believe the cases stand on the same footing. Here, we are concerned with interpreting the phrase “on the basis of the entire record,” and there we were not. In the instant case, if the information set out in the action of the convening authority is part of the record on appeal, then the board of review is permitted by the Code to consider it for sentencing purposes.

I reach the conclusion that the .questioned information is part of the entire record before the board for the following reasons. Article 64 of the Code requires that the convening authority act on both the findings and sentence and his action is a necessary part of the record. By Navy Department regulations, he is now directed to implement his action by setting out a synopsis of accused’s conduct record. Pretermit-ting the privilege of an accused to be heard, which will be considered later, there is no legal reason to isolate the reasons for a decision from the decision itself and hold the latter to be part of the record and the former not. On the contrary, it is sensible to consider them as indivisible for record purposes. By way of analogy, if a board of review does not set out the reason for deciding a particular factual matter, we merely have its action before us; but once it states its views in a written decision they, too, are before us and we are better able to understand its action. We do not hide the reasons and see only the conclusion.

The Manual contemplates that the reasons for certain actions taken by a convening authority should be part of the record. It enumerates certain instances when the basis for a ruling should be set out, and I assume that if an entry is made pursuant to law, it may be considered by other appellate agencies. But, in addition, the Manual specifically states that the reasons for the disapproval of a finding of guilty may be set out in any case. Paragraph 89c (2). If the reasons for a disapproval become a part of the record, and they do, then I lean to the belief that reasons forming the base for an approval should be considered in the same light.

To meet the foregoing argument, it is contended that if a convening authority disapproves a finding, it cannot be reinstated and, therefore, his reasons cannot prejudice an accused. It is further argued that when he affirms and sets forth matters detrimental to an accused, a different result follows. To support the latter contention, it is asserted that the accused has been denied due process of law because he has *385not been afforded a proper hearing and reviewing agencies will have cast before their eyes much incompetent and irrelevant evidence. The argument might be persuasive if post-trial proceedings were hedged in by rigid principles of law or inflexible rules of evidence, but they are not. By that I do not mean to say that certain privileges are not available to an accused or that he can be victimized by agents of the Government clúttering up a record on appeal. But, within reasonable limits and subject to the right of an accused to be heard, the record after trial can be augmented by post-trial proceedings. In that connection, I need go no further than to suggest that we have reversed cases when the basis for our decision was found in post-trial clemency reviews. We certainly considered they were before us as part of the record on appeal.

In my opinion in United States v Walters, 4 USCMA 617, 16 CMR 191, I attempted to point out that the convening authority fits into the military judicial system of appellate review and that post-trial matters considered by him become part of the record on appeal, provided both parties have been afforded an opportunity to present their side of the controversy. True it is that here we have a proceeding which may be ex parte, but it need not be. The accused can, and often does, submit to the convening authority reasons for a reduction or disapproval of a sentence. But even an ex parte hearing can be defended as it is better to bring post-trial matters into the open than to leave them resting in the bosom of reviewing .officers. The same data will be considered in either event and, obviously, if a convening authority does not reduce his views to writing, there is no way in which an accused could hope to meet the information which formed the basis of the reviewer’s action. It would be strange law indeed if a convening authority could exercise his powers in silence without infringing on a privilege of an accused, yet if he speaks out, an accused’s right has been violated. That such a ruling would be absurd can well be established. In the first instance, the accused has no possibility of undermining the base supporting an affirmance. In the latter instance, he has been furnished an opportunity to rebut the truthfulness or accuracy of the supporting evidence, even though the occasion may be late. If an accused has reason to believe that information furnished to the convening authority is not founded in fact, he can submit to that officer his rebuttal evidence. If he is uninformed, he can prepare the way before action by explaining any unfavorable entries appearing in his service record. It may well be that he must take the initiative, but that is a burden he must assume.

I have not overlooked the fact there may be instances when the convening authority may go beyond the service record; that the information used by him may not be available to the accused prior to the time of affirmance; and that it may constitute information obtained from doubtful sources. Those are possibilities, but not probabilities. The Naval Regulations limit the information to the service record and that ought to be complied with. But, in addition, most of the information used will be found in either a staff judge advocate’s review or in a post-trial clemency review. But, even assuming the worst, there are two answers to those contingencies. The first is that the accused is requesting a favorable discretionary ruling and he is not entitled as a matter of right to be informed of the reasons for a denial of his request. Secondly, his version of the disputed matters can be made available to the convening authority for his reconsideration and the disputes, if any, will be perpetuated in the record for the benefit of other reviewing authorities.

If the actions and reasoning of the convening authority are recorded and the accused has submitted information he considers weighing in his favor, each side of the controversy has had, or will have, an opportunity to be heard. While only the appropriateness of sentence is before the board of review, little difficulty should be encountered by its legally trained members in sep*386arating the relevant from the irrelevant. I see no reason why a board of review is not able to evaluate properly the information touching on the appropriateness of sentence. Irrelevant matters should no more sway the board adversely to an accused than does incompetent testimony in other areas. Many times the appropriateness of sentences is determined by boards of review when they know about, but cannot consider, previous convictions. Furthermore, they reconsider sentences after part of the findings have been reversed for other than reasons of guilt, and their knowledge of the accused’s character as evidenced by those offenses does not disqualify them from acting. They must assume their judicial robes and separate the good from the bad; and in this instance the separation was not necessary as the information was relevant for the purpose intended. It may have harmed the accused but it is uncontested and he pays that penalty because an unsatisfactory military record bears directly on his value to the service.

Let us assume, arguendo, that information has been included in a report by a convening authority which was based on idle rumors, gossip or which was gathered from discreditable sources. In that event I would expect members of the board of review to pay it no heed. I am willing to assume they have the judicial capacity to select and consider only that information which is competent, relevant and material to the appropriateness of sentence. Some individual members contend they cannot; but as to them, I can merely say court-martial members are instructed to disregard irrelevant evidence which sometimes gets into the record and unless it is of an inflammatory nature, we presume the instruction was followed. Members of boards of review should do much better and if it appears a convening authority was influenced by improper considerations, a board of review can correct that error by affirming only that portion of the sentence it believes to be fair and just.