United States v. Plummer

Latimer, Judge

(concurring in the result) :

I concur in the result.

In United States v Wise, 6 USCMA 472, 20 CMR 188, we stated as follows (page 476):

“The rationale of all the quoted provisions points clearly to a rule that an accused is entitled as a matter of right to a careful and individualized review of his sentence at the level of the convening authority. It is his first and perhaps best opportunity to have his sentence tempered by mercy and to obtain an additional chance to prove his worth to his service, and his country. A casting aside of the sentence review by a sweeping proclamation that all accused who receive a punitive discharge are to be discharged from the service, regardless of any showing made in their behalf, is not in keeping with that rationale. That view smacks too much of the principle that all military offenders must inflexibly and arbitrarily be tarred with the same brush of dishonorable service.”

In this instance, it is sufficient for my purposes to state that the staff judge advocate in his review recommended that the convening authority disregard the law set forth above. By his advice, the expert on the law encouraged the reviewing officer to act as an automaton and eliminate all members of a class of offenders, regardless of individual mitigating or extenuating circumstances. I have no reason to suspect that the reviewing officer did not follow the recommendation and, in my opinion, when incorrect legal principles are used by a staff judge advocate to influence the review, the burden should be shifted to the Government to show they were without persuasive effect.