United States v. Jenkins

Opinion of the Court ROBERT E. Quinn, Chief Judge: The question raised by this appeal is whether in his post-trial advice the staff judge advocate misinformed the convening authority on the standard of proof he could use in his review of the case to determine the guilt or innocence of the accused. The same question was recently considered by us in United States v Grice, 8 USCMA 166, 23 CMR 390, and United States v Johnson, 8 USCMA 173, 23 CMR 397. After careful consideration of the staff judge advocate’s advice to the convening authority, we are constrained to conclude that it clearly implies, if it does not directly say, that the test to determine the sufficiency of the evidence is whether there is evidence to support the findings of the court-martial. This test is incorrect. In United States v Grice, supra, we held that under the Uniform Code the convening authority is not limited to the “restrictive test reserved to appellate tribunals. He must be satisfied in his action that the accused is guilty beyond a reasonable doubt.” Here, as in the Johnson case, the Government has appended to its appellate brief a certificate from the convening authority to the effect that when he reviewed the case he was “convinced . . . beyond reasonable doubt” of the accused’s guilt. In the light of all the circumstances of the case, however, we [275] think that our disposition here should be the same as that in Johnson. Accordingly, we set aside the decision of the board of review and direct that the case be returned to another competent reviewing authority for further proceedings under Articles 61 and 64 of the Uniform Code of Military Justice, 10 USC §§ 861 and 864. Judge Ferguson concurs.