U.S. v. Johnston, 51 M.J. 227

Military Justice Personnel: Defense Function: Detailed Military Counsel

1. where accused’s detailed defense counsel had been released from active duty and was therefore not under the control of the Judge Advocate General of the Navy at the time of a new SJA recommendation, accused was not represented by counsel under Article 27b, UCMJ, at this critical point in the criminal proceedings against him as required by RCM 1106(f)(2)
2. where detailed defense counsel left active duty prior to preparation of a new SJA recommendation, failure of the convening authority to detail substitute counsel for appellant deprived him of his opportunity for sentence relief with the convening authority and was prejudicial to appellant’s substantial rights

Military Justice Personnel: Convening Authority: Action

1. the accused’s best opportunity for sentence relief is with the convening authority

Trial Stages: Initial Review: Post-trial Recommendation

1. where accused’s detailed defense counsel had been released from active duty and was therefore not under the control of the Judge Advocate General of the Navy at the time of a new SJA recommendation, accused was not represented by counsel under Article 27b, UCMJ, at this critical point in the criminal proceedings against him as required by RCM 1106(f)(2)

Trial Stages: Appeals: Generally

1. when cases arrive at the Courts of Criminal Appeals with defective staff work, they are not ready for review and should be promptly returned to the convening authority before appellate counsel and appellate courts expend effort on reviewing other aspects of a case that may be affected by a proper review and action by the convening authority