U.S. v. Finster, 51 M.J. 185

Military Justice Personnel: Staff Judge Advocate: Post-TrialRecommendation

1. the importance of the SJA recommendation under Article 60(d), UCMJ, is underscored by Congress establishing criteria that disqualify a person from acting as an SJA in designated situations, (Article 6(c), UCMJ), and by this Court in granting relief in cases in which the SJA was disqualified because of conflicting interests
2. preparation of a post-trial recommendation by enlisted person who was neither the SJA nor legal officer met the criteria for plain error where: (1) preparation of the post-trial recommendation by an enlisted person was error; (2) the error was plain in light of the well-understood terms “staff judge advocate” and “legal officer”; and (3), in light of the critical role assigned by Congress to the SJA or legal officer in advising the convening authority in that officer’s exercise of discretion, the failure to obtain a recommendation from a qualified person materially prejudiced the substantial right of the accused to have his submission considered by a qualified SJA or legal officer prior to the convening authority’s action

Military Justice Personnel: Staff Judge Advocate: Qualifications / Disqualifications

1. a recommendation which was not prepared by an SJA or legal officer, but by an enlisted person, was prepared by a person not qualified under the statute to provide a post-trial recommendation to the convening authority

Military Justice Personnel: Convening Authority: Action

1. although frequently exercised as clemency power, the commander has unfettered discretion to modify the findings and sentence for any reason, without having to state a reason, so long as there is no increase in the severity of the sentence

Trial Stages: Initial Review: Post-trial Recommendation

1. the importance of the SJA recommendation under Article 60(d), UCMJ, is underscored by Congress establishing criteria that disqualify a person from acting as an SJA in designated situations, (Article 6(c), UCMJ), and by this Court in granting relief in cases in which the SJA was disqualified because of conflicting interests
2. a recommendation which was not prepared by an SJA or legal officer, but by an enlisted person, was prepared by a person not qualified under the statute to provide a post-trial recommendation to the convening authority
3. preparation of a post-trial recommendation by enlisted person who was neither the SJA nor legal officer met the criteria for plain error where: (1) preparation of the post-trial recommendation by an enlisted person was error; (2) the error was plain in light of the well-understood terms “staff judge advocate” and “legal officer”; and (3), in light of the critical role assigned by Congress to the SJA or legal officer in advising the convening authority in that officer’s exercise of discretion, the failure to obtain a recommendation from a qualified person materially prejudiced the substantial right of the accused to have his submission considered by a qualified SJA or legal officer prior to the convening authority’s action
4. where the SJA recommendation was prepared by an unqualified enlisted person, there was a fundamental flaw in the post-trial process which seriously affected the fairness, integrity, and public reputation of the proceedings; nor are commanders well-served when staff work is assigned to statutorily unqualified personnel; such cases are not ready for appellate review and should be returned promptly to the convening authority for preparation of a new SJA recommendation and action

Trial Stages: Initial Review: Action

1. although frequently exercised as clemency power, the commander has unfettered discretion to modify the findings and sentence for any reason, without having to state a reason, so long as there is no increase in the severity of the sentence

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Court of Criminal Appeals: (1) may address prejudicial errors on its own motion and is not limited to the matters, if any, discussed in a submission to that court; (2) may review the record and reach their own independent conclusion as to whether findings and sentence should be affirmed as correct in law and fact; (3) is not prohibited by Article 66(c) or Article 59(a) from identifying prejudicial error without regard to the nature or quality of the accused’s submission on appeal; and, (4) has broad discretion to determine whether an error is harmless, whether corrective action should be taken by the Court of Criminal Appeals, or whether the case should be returned to the convening authority
2. where the SJA recommendation was prepared by an unqualified enlisted person, the prejudicial impact of the error was manifest, so the Court of Criminal Appeals’ order for a new post-trial action falls well within that court’s broad discretion to determine whether an error is harmless, whether corrective action should be taken by the Court of Criminal Appeals, or whether the case should be returned to the convening authority

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in the absence of an objection to the qualifications of the individual preparing a post-trial recommendation, the claim of error is analyzed under the plain error standard; that is, whether there was “error”; whether it was “plain”; and whether it materially prejudiced a substantial right of the accused
2. preparation of a post-trial recommendation by enlisted person who was neither the SJA nor legal officer met the criteria for plain error where: (1) preparation of the post-trial recommendation by an enlisted person was error; (2) the error was plain in light of the well-understood terms “staff judge advocate” and “legal officer”; and (3), in light of the critical role assigned by Congress to the SJA or legal officer in advising the convening authority in that officer’s exercise of discretion, the failure to obtain a recommendation from a qualified person materially prejudiced the substantial right of the accused to have his submission considered by a qualified SJA or legal officer prior to the convening authority’s action