United States v. Sankey

OPINION OF THE COURT PER CURIAM: Appellant was convicted, contrary to his pleas, of assault and communication of a threat in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934. His approved sentence included a bad-conduct discharge (suspended until 25 April 1979 with provision for automatic remission). On appeal, counsel has not alleged that any errors were committed in the pretrial, trial or post-trial processing of the case. However, our examination of the record discloses that the staff judge advocate used an abbreviated format for his post-trial review. It appears that the review was patterned on the concurring opinion in United States v. Morrison, 3 M.J. 408 (C.M.A.1977).1 The requirements for the staff judge advocate’s post-trial review are essentially set forth in paragraphs 85b and c of the Manual.2 Further, those long standing requirements have been illustrated in such cases as United States v. Fields, 9 U.S.C.M.A. 70, 25 C.M.R. 332 (1958); United States v. Grice, 8 U.S.C.M.A. 166, 23 C.M.R. 390 (1957). Here the review failed to delineate the convening authority’s responsibility nor did it advise [791] him of the standard under which he was to consider the staff judge advocate’s opinion. Counsel for the appellant during the post-trial processing did not submit any comments to correct or challenge any matter which he may have deemed to be erroneous, misleading or inadequate.3 We do not believe the error here rises to the level that it should be considered a manifest miscarriage of justice.4 Accordingly, the failure of the defense counsel to point out the deficiencies waived the error. The findings of guilty and the sentence are affirmed. Footnotes [1] Chief Judge Fletcher’s views concerning the requirements of Article 61, 10 U.S.C. § 861 may become the law in a future case. Until that time, the cited requirements set forth in the Manual for Courts-Martial, United States, 1969 (Revised edition), and judicial interpretation of those requirements must be followed. [2] Manual for Courts-Martial, United States, 1969 (Revised edition). [3] United States v. Goode, 1 M.J. 3 (C.M.A. 1975); United States v. Myhrberg, 2 M.J. 534 (A.C.M.R. 1976). [4] See Note 10, United States v. Myhrberg, supra.