United States v. Williams

Opinion of the Court

The accused was convicted of the larceny of $300 from a fellow airman, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The question before us is whether the accused was prejudiced by the inclusion of unfavorable matter in the staff judge advocate’s review which he did not have an opportunity to disclaim or explain. See United States v Griffin, 8 USCMA 206, 24 CMR 16.

The challenged matter is contained in certain “clemency evaluation” statements submitted by the accused’s commanding officer, his first sergeant, and other persons. In substance, some of the statements implicate the accused in other acts of barracks thievery. Also included are references to the accused’s involvement in a fight, his insubordination to a noncommissioned officer, and várious instances of drunkenness. Finally, some of the statements commented unfavorably on the accused’s “attitude” toward his work.

In his review, the staff judge advocate “completely disregarded” the imputations of “further criminal liability” in the barracks thefts because “independent inquiry” indicated that the “accusations were based on conjecture.” No> mention is made of the other purported acts of misconduct, but they are so> minor in relation to the circumstances of the offense that we are constrained to *37conclude that they had no measurable impact upon the convening authority. Considered as a whole, the review is thorough, and so plainly accords the accused every consideration of clemency that the failure to give him an opportunity to challenge the “new” matter in the clemency statements did not deprive him of a substantial right. See United States v Taylor, 9 USCMA 34, 25 CMR 296.

The decision of the board of review is affirmed.

(dissenting)

I dissent for' the reasons set forth in my dissenting opinion in United States v Taylor, 9 USCMA 34, 25 CMR 296.