United States v. Watkins

OPINION OF THE COURT

BRIDGMAN, Judge:

The accused was charged with four offenses: a 21 day unauthorized absence (Art. 86, 10 U.S.C. § 886); missing movement through design (Art. 87); breaking restriction (Art. 134); and disobedience of an order (Art. 90). He elected to be tried by military judge alone, entered pleas of guilty to all offenses, and both individually and through counsel, requested a BCD. Prior to announcing sentence the military judge ruled that the first three offenses were multiplicious for punishment purposes. The military judge also stated:

I am going to award confinement in an amount that I estimate to be sufficient to allow for a review of this case by the Supervisory Authority. It is my recommendation that you be interviewed by the staff legal officer, or his representative, before the Supervisory Authority takes action to determine if there is a rehabilitation potential then present. If so, I recommend that you be restored to duty.

Article 65(b) of the UCMJ, 10 USC 865(b) and paragraph 94 MCM, U.S., 1969 (Rev.), require the staff judge advocate or legal officer to review the record of trial and make recommendations to the Supervisory Authority, including matters relative to the appropriateness of the sentence. Material omissions in the advice which may tend the Supervisory Authority to take action different from that which he might have taken, had the omitted material been brought to his attention, have been held to constitute prejudicial error. United States v. Arnold, 21 U.S.C.M.A. 131, 44 C.M.R. 205 (1972), United States v. Rivera, 20 U.S.C. M.A. 6, 42 C.M.R. 198 (1970). The correctness of the events at trial is irrelevant to whether prejudice flowed from erroneous advice by the legal officer. The correct inquiry is whether there is a fair risk that the review misled the Supervisory Authority. Where such risk is present, the Action has been invalidated. United States v. Martinez, No. 30,986, 24 U.S.C.M.A. 100, 51 C.M.R. 273,1 M.J. 280 (1976), United States v. Hill, 22 U.S.C.M.A. 419, 47 C.M.R. 397 (1973).

In this instance the review prepared by the district legal officer fails to mention the ruling by the military judge that three of the four offenses are multiplicious for punishment purposes. Further, the offenses are summarized in the review in such a way that there is no indication that they took place on the same day or were in any way related to each other. To the extent that United States v. Westcott, A.C.M.R. 1973, 48 C.M.R. 237, stands for the principle that failure of the review to mention that the military judge has ruled that offenses were multiplicious for punishment purposes is not prejudicial error, we disagree. Failure to inform the convening authority that what appears to be a series of offenses must be treated as a single offense does, in our opinion, mislead the convening authority.

In addition, the review fails to mention the recommendation of the military judge and is completely devoid of any indication whether the requested interview of the accused was carried out. Failure of the legal officer’s review to mention a direct recommendation by the military judge to suspend a punitive discharge has to be held to be prejudicial, United States v. Arnold, supra. Where the military judge’s recommendation has been conditional, the contrary result has been reached. United States v. Massingill, 21 U.S.C.M.A. 428, 45 C.M.R. 202 (1972). As pointed out by the court in Massingill, the military judge could not have intended his recommendation for the convening authority, since by the time the recommendation was to be acted upon, jurisdiction over the accused would have passed from the convening authority. In the present instance the military judge specifically intended that the post-trial interview of the accused be conducted “before the Supervisory Authority takes action.”

*1278Errors in post-trial reviews of staff judge advocates and legal officers have occasioned recurrent complaints and reversals. In an effort to correct this problem the USCMA directed that, effective 15 May 1975, a copy of the review be served on counsel for the accused and he be given an opportunity to correct or challenge any matter he deems erroneous, inadequate, or misleading. The failure of counsel for the accused to take advantage of this opportunity is normally to be deemed a waiver of any error in the review. United States v. Goode, 23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). The record reflects that the defense counsel was served with a copy of the legal officer’s review and was advised that the failure to comment would be deemed a waiver of any error in the review.

We do not believe this rule is intended to relieve the legal officer of the obligation to prepare a thorough, accurate, and complete review and we do not condone omissions of the type encountered here. We have no doubt that the omissions discussed above present a fair risk that the supervisory authority was misled in his review of the accused’s trial. Under other circumstances we would be reluctant to impose a waiver, however in this instance we feel constrained to follow the rule announced in United States v. Goode, supra, and we affirm.

BRIDGMAN, YOUNG and LYNCH (concurring). ROSENWASSER and MAGUIRE (dissenting). Appellate Military Judges.