United States v. Hayes

Opinion of the Court

Upon appellant’s pleas of guilty to several drug-related offenses, the military judge, sitting alone as a special court-martial, convicted him and adjudged a sentence of a bad-conduct discharge, confinement at hard labor for 4 months, and partial forfeitures for a like period. After that sentence had been approved on review below, the United States Navy Court of Military Review held that evidence of two prior nonjudicial punishments had been incorrectly received by the judge for sentencing purposes. Accordingly, it reassessed the sentence.

The case reached this Court on the following question certified by The Judge Advocate General:

WHETHER THE UNITED STATES NAVY COURT OF MILITARY REVIEW CORRECTLY CONCLUDED THAT PROSECUTION EXHIBITS 1 AND 2 WERE INADMISSIBLE?

The questioned exhibits are records of non judicial punishment, each recorded on a document designated as “Court Memorandum NAVPERS 1070/607 (Rev. 12-75).” Accompanying this document is another form, which has the identification “Administrative Remarks — NAVPERS 1070/613 (Rev. 3-73).” In the instance of each nonjudicial punishment, the offense involved was unauthorized absence and the punishment did not include confinement or correctional custody.1

The manner in which the “Administrative Remarks” form was filled out in one instance is shown in Appendix A to this opin*332ion. The record for the other nonjudicial punishment was prepared in the same way. In each instance, near the top of the page is the recital that “I was advised of my right to confer with independent counsel (a lawyer certified in accordance with Art. 27(b), UCMJ, 10 U.S.C. § 827(b)), prior to making a decision as to whether to accept or reject nonjudicial punishment/summary court-martial regarding the following offense(s).” A suitable box was initialed. Below this a box is initialed alongside the statement that “I voluntarily, knowingly, and intelligently waive my right to confer with independent counsel prior to accepting or rejecting nonjudicial punishment/summary court-martial.” Near the bottom of the page appears the witnessed signature of the accused.

In United States v. Mack, 9 M.J. 300 (C.M.A. 1980), we discussed in detail the admissibility of an Army form — DA Form 2627 — which is used to record non judicial punishments. In some respects the form for “Administrative Remarks,” which is the subject of the case at hand, calls for details lacking in DA 2627 as to whether an accused has waived the right to counsel adverted to in both forms. For example, the form contains boxes wherein an accused can indicate whether he exercises or waives his “right to confer with independent counsel” and other boxes for recording whether, after either consulting or waiving counsel, he elects to accept or to refuse nonjudicial punishment. See Appendix A, infra.

Unlike DA Form 2627, which contains a designation of the place where the accused can obtain legal advice about his statutory right to decline nonjudicial punishment, there is no blank for identification of the “independent counsel” who is available for consultation. Under one reading, the “Administrative Remarks” are advising the accused that, without cost to him, the Navy will provide a lawyer for him to consult. Under another reading the accused is only being informed that he may hire his own lawyer to advise him on the choice. See United States v. Robertson, 17 U.S.C.M.A. 604, 607, 38 C.M.R. 402, 405 (1968).

In January 1973, Secretary Laird enunciated a policy that legal advice be made available to servicepersons facing nonjudicial punishment. See United States v. Mack, supra. In light of that policy, we assume that the “Administrative Remarks” in the case at hand were intended to confirm that an accused will have an opportunity to consult with counsel provided by the Navy without cost to him.2

If, in connection with nonjudicial punishment, an accused possessed a constitutional or statutory right to consult counsel provided him by the armed forces, we would incline towards the view that the advice provided on the form was fatally defective in advising of that right. However, since no such right exists, see United States v. Mack, supra and no objection has been raised at *333trial or on appeal about the ambiguity in the form for “Administrative Remarks,” we are unwilling to hold that the record of nonjudicial punishment was inadmissible in evidence.3

Having considered the questioned records of nonjudicial punishment from the perspective of Mack, we conclude that they could properly be received. Therefore, the certified question is answered in the negative and the case is remanded to The Judge Advocate General of the Navy for return to the Court of Military Review for further proceedings in accordance with this opinion.4

Appendix to follow.

*334

*335

(concurring in the result):

I concur in the result. The Administrative Remarks section of Appendix A, attached to the lead opinion, is a superior example of compliance with the requirements of United States v. Booker, 5 M.J. 238 (C.M.A. 1977).1 These additions show another facet that is essential to a good lawyer, that being the talent to perceive the path of the law and anticipate the next footfall. These Administrative Remarks were incorporated into the form used by the Navy for nonjudicial punishment four months before this Court handed down its decision in United States v. Mathews, 6 M.J. 357 (C.M.A. 1979).

The majority, as is so common in our society today, has a problem with one who strives to excel, and that same majority is willing to succor indifference in their opinion in United States v. Mack, 9 M.J. 300 (C.M.A. 1980).