United States v. Heriot

GLADIS, Senior Judge

(dissenting):

The law is clear that if a member has an inelastic attitude towards the imposition of a particular punishment and will not yield to the evidence presented, the military judge must sustain a challenge for cause to the member. United States v. Tippit, 9 M.J. 106 (C.M.A.1980); United States v. McGowan, 7 M.J. 205 (C.M.A.1979). The inelastic attitude need not be a predisposition to adjudge a punitive discharge. See United States v. Tucker, 16 U.S.C.M.A. 318, 36 C.M.R. 474 (1966) (predisposition to adjudge confinement). In its scholarly analysis the majority makes a convincing case for discarding this rule in cases such as the one before us. It is not our function, however, to discard rules enunciated by the Court of Military Appeals, although they may be unwise. That is the task of the Court of Military Appeals. Therefore, I dissent.