joins (dissenting):
Article 60(d), UCMJ, 10 USC § 860(d) (1983), states that “the convening authority or other person taking action under this section shall obtain and consider the written recommendation of his staff judge advocate or legal officer.” (Emphasis added.) A majority of this Court is now effectively attempting to rewrite Article 60(d) by allowing any nonlawyer “legal officer” to prepare the recommendation. RCM 1106(c), Manual for Courts-Martial, United States (1995 ed.), applies to situations in which a convening authority has no staff judge advocate or legal officer, or where such person is disqualified from advising the convening authority due to his or her previous involvement in the ease. It is not a blanket authorization to the convening authority to allow any “legal officer” to prepare the recommendation.
Article 60(d) is violated in this case because the recommendation was not prepared by the convening authority’s legal officer, but was prepared by some other nonlawyer legal officer. The government concedes this error. Accordingly, United States v. Finster, 51 MJ 185, 188 (1999), mandates that this case should be reversed and remanded for a new staff judge advocate recommendation that is in compliance with Article 60(d).
The majority has given no reason why this Court should not be bound by Finster in this case. Both cases are remarkably similar. In both Finster and this case, there was a post-trial recommendation made by a non-lawyer designated as a legal officer. In fact, in Finster, the designated “legal officer” (it should be noted that he was an enlisted noncommissioned officer) was an honors graduate of the Naval Justice School’s Legal Officer Course. United States v. Finster, supra; appellant’s final brief at 2. Furthermore, in Finster, just as in this case, there was no objection to the post-trial recommendation. Comparing both Finster and the case at bar, the core issue which emerges is: Was appellant prejudiced by the post-trial recommendation prepared by a person unqualified under Article 60(d)?
In Finster, this Court answered that question by holding that the nonlawyer who was functioning as a legal officer was unqualified under the UCMJ and that his preparation of the post-trial recommendation was a “fundamental flaw.” 51 MJ at 186-88. In the case at bar, the question (on the prejudice of an unqualified person preparing the recommendation) should similarly be answered in the affirmative. The nonlawyer “legal officer” here was unqualified because he was not the legal officer of the convening authority. See also Cooke v. Orser, 12 MJ 335, 344 (CMA 1982) (Congress intended special relationship between commander and his staff judge advocate). In both Finster and in this case, a nonlawyer, unqualified under the plain wording of the UCMJ, gave the post-trial recommendation. In Finster, this Court gave relief. The same result should be followed here. Accordingly, I dissent.