(concurring in the result):
I concur in the result.
I agree with my brothers that the accused’s conviction may be affirmed but I disassociate myself from the avenue by which they reach that result.
While defects in preliminary hearings are to be measured by the test of specific prejudice (United States v Cunningham, 12 USCMA 402, 30 CMR 402 (1961)), their presence in the record of trial many times reflects either neglect on the part of trial lawyers or a belief that failure to follow procedural rules and statutory provisions cannot affect due process of law. Either of these two views indicates a breakdown in the system of military justice and places the burden on appellate courts to render an ad hoc decision in a particular case. This is highly unsatisfactory and would be totally unnecessary if there were a higher regard for these important rules.
Care should be exercised by both the trial court and counsel to assure that cases having such defects do not reach this Court, for, in many instances, the sentence to confinement has already been served before the appeal reaches this level making it virtually impossible to accord an accused any meaningful relief. This case is a good example for here the accused stands convicted of attempted murder, and was sentenced to serve five years confinement at hard labor, for an activity classified by some lawyers in the base legal office as merely “horsing around.” One member of the United States Navy Court of Military Review believed that at most the charge should have alleged a violation of Article 128, Uniform Code of Military Justice, 10 USC § 928, aggravated assault in which grievous bodily harm is intentionally inflicted. His sentence has been reduced to eighteen months1 and is now almost served.
Were it not for the specific acceptance, by defense counsel, of Captain Ward as the Article 32 investigating officer, after full disclosure of Captain Ward’s previous connection with the case (United States v Wismann, 19 USCMA 554, 42 CMR 156 (1970)), I would find prejudice to this accused.
Sentence was adjudged May 14, 1969.