(dissenting):
I dissent. Congress has seen fit to require that “The convening authority shall refer the record of each general court-martial to his staff judge advocate or legal officer, who shall submit his written opinion thereon to the convening authority.” Article 61, Uniform Code of Military Justice, 10 USC § 861. If the Congress had wanted to permit the advice to be rendered by any attorney, it could have said so. By specifying the staff judge advocate or legal officer of the convening authority, it indicated a desire that an attorney with the maturity and experience required in attaining that position pass upon the issues involved and give his professional advice thereon in writing.
This Court is to decide questions of law. If considerations of practicality present the services with serious problems in this area, their redress is in the Congress and not by this Court through judicial construction reducing or limiting the expressed requirements of the law.
Thus, I would require, because I believe the law requires, that the staff judge advocate or legal officer of the convening authority read the record of trial in all cases. This does not preclude his receiving some aid from assistants. But, in the final analysis, it must be his opinion which is presented and that can only with certainty he based upon all the evidence of record when he has read the record for himself.
The failure of the staff judge advocate to read the record in this case deprived the accused of one of the rights assured him by the Congress. I would, therefore, order a new staff judge advocate review.