United States v. Boehm

Kilday, Judge

(concurring):

Article 62(a), Uniform Code of Military Justice, 10 USC § 862, here involved, reads as follows:

“If a specification before a court-martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action.”

A plain and unambiguous statute is to be applied, not interpreted. United States v Davis, 12 USCMA 576, 31 CMR 162. Because the convening authority’s action here is clearly within the terms and purpose of Article 62 (a), supra, I concur with Chief Judge Quinn.

I believe my dissenting brother misconceives the character of both Manual for Courts-Martial, United States, U. S. Army, 1949, paragraph 64f, and Manual for Courts-Martial, United States, 1951, paragraph 67f. He would have us construe both provisions as giving unimpeachable finality to a court-martial’s dismissal of a charge for lack of speedy trial. This limitation he then extends to Article 62 “in precisely the same manner.” This simply cannot be.

Both of these Manual provisions provide — and the quote from paragraph 64/, supra, shows — that in such matters the court-martial will accede to the view of the convening authority on matters of law. On matters of fact, they may exercise their discretion “in reconsidering the motion.” This is a far cry from saying the convening authority may not, in the first instance, rule against such a holding. Indeed, these Manual provisions provide that he may. Here the process utilized conformed to both Manual and statutory requirements.

While some of the ends apparently advocated in the dissenting opinion may be desirable, we are not permitted to achieve the same in derogation of a plain and unambiguous provision of the statute.