United StateS v. Ware

¶1(concurring in the result):

¶2Whenever the Uniform Code of Military Justice requires that a particular action be in writing, it expressly provides therefor, or the language of the reference necessarily implies a writing.1 The provisions of the Code regarding the convening of a court-martial and the detail of persons to it, such as the military judge, do not expressly, or by necessary implication, demand that the appointment be in writing. See Articles 22 through 29, UCMJ, 10 U.S.C. §§ 822 through 829. That circumstance alone impresses me as indicating an intention on the part of Congress that the absence of a written appointment does not mean, as the majority say, that the court-martial has no “jurisdiction to proceed absent a signed . order executed by the proper authority.”

¶3I know of no constitutional principle that requires a written order of appointment as a prerequisite to the right of the appointee to act in the capacity authorized by oral order of proper authority. In the very first year of its existence, this Court observed that when Congress “specifically grants what it considers to be a substantial right, we cannot deny the authoritative requirement by refusing to recognize it.” United States v. Clay, 1 U.S.C.M.A. 74, 81,1 C.M.R. 74, 81 (1951). See also United States v. Dean, 20 U.S.C.M.A. 212, 43 C.M.R. 52 (1970). In my opinion, the converse is also true; that is, when neither the Constitution *26nor Congress requires that a legal action be in a particular mode, this Court should not recognize as legal only that action taken in the mode preferred by the Court. We have confronted this sort of situation in regard to authorization to search. As neither the Constitution nor any provision of the Code requires that it be in writing, this Court has urged use of a writing, but has never commanded it. See United States v. Martinez, 16 U.S.C.M.A. 40, 42, 36 C.M.R. 196, 198 (1966); United States v. Hartsook, 15 U.S.C.M.A. 291, 294, 296, 35 C.M.R. 263, 266, 268 (1965).

¶4As the Code is silent on the subject, I turn to the Manual for Courts-Martial, United States, 1969 (Revised edition), which, in my view, has the force of law on the matter in issue as a procedural subject within the President’s rule-making authority under Article 36, UCMJ, 10 U.S.C. § 836. A number of provisions in the text of the Manual indicate that an order convening a court-martial and detailing appropriate persons to it should be in writing. For example, paragraph 4e provides that “[t]he order convening a court-martial to which a military judge is detailed will expressly state that the military judge is certified as qualified for such duty”; in contrast, detail of a reporter to a court-martial “may be oral and need not be shown in the record of trial or allied papers.” Para. 7, Manual, supra. Paragraph 36b, which deals with the “[fjorm and content” of a convening order, and Appendix 4 of the Manual, which is entitled “Forms for Orders Convening Courts-Martial,” obviously contemplate issuance of a written order.2 However, neither the text nor the Appendix forbids an oral order. More importantly, paragraph 37 sanctions an oral change to the initial convening order, in language which I construe as authorizing a newly detailed person to act immediately in the capacity for which he was detailed and before the convening authority has issued a confirming written order. The pertinent provision is as follows:

Changes in composition. Changes in the composition of a court-martial, such as changes which involve the detail of new personnel to a court or the relief of a member, are usually accomplished by the promulgation of formal written orders amending the original convening order. If it is necessary to make a change by oral order, message, or signal, the oral order, message, or signal should be confirmed by written order. [Manual supra, para. 37c (1).]

¶5In my view of the law, therefore, a proper oral order substituting the trial judge would have enabled the newly detailed judge to act immediately, notwithstanding a confirmatory, written order had not yet been issued. That brings me to the effect of United States v. Carey, 23 U.S.C.M.A. 315, 49 C.M.R. 605 (1975), which is cited by the majority in support of its position that the failure to confirm an oral order of substitution with a written order before completion of the trial proceedings is fatal error. Patently, the time of consideration is not a jurisdictional requirement; consequently, it is immaterial whether the accused pleaded guilty or not guilty. United States v. Dean, supra. See also United States v. Coleman, 19 U.S.C.M.A. 524, 42 C.M.R. 126 (1970).

¶6Careydeplored the Government’s gross inattention to the Manual provisions, but it nonetheless affirmed the trial results on the basis of an undisputed post-trial showing that the person who served at the court-martial was, in fact, detailed to it before he undertook performance of his trial duties by oral modification of the initial convening order. Earlier cases allowed similar post-conviction clarification of the record. United States v. Gilliland, 10 U.S.C.M.A. 343, 27 C.M.R. 417 (1959); United States v. King, 8 U.S.C.M.A. 392, 24 C.M.R. 202 (1957). Carey, however, did stress that timely action was necessary “ ‘to ascertaining the true circumstances.’ ” 23 U.S.C.M.A. at 316, 49 C.M.R. at 606. Certainly, inordinate delay may defeat the effort to fill an apparent *27gap in the record. See United States v. Strahan, 14 U.S.C.M.A. 41, 33 C.M.R. 253 (1963). Moreover, I would suppose that once the court-martial process is complete, within the meaning of Article 76, UCMJ, 10 U.S.C. § 876, the authority of the court to act as constituted at trial would have to stand or fall on the record as it then exists. Compare my dissent in United States v. Alef, 3 M.J. 414, 422 (C.M.A. 1977).

¶7Looking at the record before us, I am constrained to conclude, contrary to the determination of the Court of Military Review below, that the uncertainty as to the trial judge’s timely detail to the court has not been corrected by the convening authority’s affidavit. The convening authority avers that prior to accused’s trial he “orally modified” the initial convening order by relieving Captain Holder as trial counsel and appointing Captain Storti in his place. He further represents the oral modification was not reduced to writing “because of an administrative oversight.” I do not view these representations as inherently suspicious, and I do not believe that, as a matter of law, they are so stale that they could not operate to complete the record if they were otherwise sufficient for that purpose. See United States v. Strahan, supra at 44-45, 33 C.M.R. at 256-57. The difficulty I have with the affidavit is that neither it, nor any other matter in the record, explains the appearance of the “Ratification of My Oral Modification,” executed by Lieutenant Colonel Hubner, who was not the convening authority, but the commander of another unit within the 3d Marine Aircraft Wing.

¶8The record of trial was authenticated by the trial judge himself; the fair inference is that he regarded the document in the record as correctly representing the source of his authority to act as trial judge. The Government would have us ignore the document as merely an “administrative error.” The problem with the argument is that it disregards the standard rule that authentication of a record of trial “imports verity” to the proceedings. United States v. Strahan, supra at 46, 33 C.M.R. at 258. See also United States v. Albright, 9 U.S.C.M.A. 628, 26 C.M.R. 408 (1958). As both the authenticated record and the affidavit are unaccompanied by any other evidence as to the authority of the substitute judge to act, I would suppose the authenticated record would have to prevail over the affidavit. United States v. Strahan, supra at 46. But, even in the light most favorable to the Government, the situation would be comparable to that in which two official documents contradict each other as to the existence vel non of a fact essential to decision. See my separate opinion in United States v. Mahan, 1 M.J. 303, 307 (C.M.A. 1976). The effect is that one document cancels the other, and recourse must be had to other evidence to determine whether the initial convening order was or was not changed. As there is no such evidence, I agree with the majority that the functions of the trial judge were performed by a person who was apparently not properly detailed to the court. From the totality of the circumstances in the case, the interests of justice would appear to be better served by dismissal of the charges than by continuing the proceedings to achieve a purpose that may, at this late date, be unattainable. I, therefore, concur in reversal of the decision of the Court of Military Review and in dismissal of the charge.