United States v. McGary

LatimbR, Judge

(dissenting);

I dissent.

When the sentence of a special court-martial, as approved by the convening authority, includes a bad-conduct discharge, Article 65, Uniform Code of Military Justice, 10 USC § 865, provides that the record may either be forwarded to the board of review or reviewed by an officer having general court-martial jurisdiction. Stated schematically, the channel for review could run direct to the board of review and thus by-pass the supervisory authority. Here, however, the indirect route was chosen, for the record was channeled through him before the case reached the board of review. As this second review was a bounty bestowed on the accused, it is difficult to envision prejudicial error merely because the same officer, as a result of a change in command, searched the l'ecord twice. Indeed, not only is there a lack of prejudice but the accused received a benefit as a consequence of each review. During the initial action of the convening authority, the sentence of the accused was reduced and during the review at the supervisory authority level — after a review by a staff legal officer — one of the original charges was dismissed. In opposition to this tangible benefit which the Government points to, the accused fails to produce any evidence to indicate prejudice or to show the denial of a substantial right or privilege. Perhaps this explains the most startling statement of my associates that:

“. . . We do not question in the slightest General Gibson’s impartiality and fairness in acting upon the record as both convening and supervisory authorities. Neither are we concerned with whether the accused was in fact prejudiced by this situation for in both reviews relief was accorded him.
“The real issue, as we view it, is not so much one of prejudice to the accused as it is one of eligibility on the part of the supervisory authority.”

For my part, I find the doctrine of *249ineligibility to be unsound but, even if it were good law, an accused cannot accept the benefits of a review on the one hand and on the other hand contend that the officer granting the benefaction was ineligible to act. But, more important, I prefer to follow the mandate of Article 59, 10 USC § 859, and I would, therefore, affirm the decision of the board of review.