In a published opinion in United States v. Matthews, 73 M.J. 935, No. 1382 (C.G. Ct. Crim. App. Oct. 20, 2014) (link to slip op.), a three-judge panel of the Coast Guard CCA finds that a convening authority was disqualified from taking post-trial action in the appellant’s case because the convening authority is a pilot who flew search and rescue sorties searching for the appellant after the appellant deserted. As a result, the CCA remands the case for a new post-trial action by a different convening authority. Chief Judge McClelland writes for the panel, while Judge Gill dissents.
The case involves the following facts:
Appellant, stationed at Coast Guard Air Station Barbers Point, deserted his unit, left his car on a cliff above a beach, and went camping in the woods. (Prosecution Ex. 1.) The Coast Guard launched a search for him by vessel and aircraft because it was thought that he might have gone into the water. (R. at 102-03.) Air Station Barbers Point flew eighteen sorties for sixty-four hours over three to four days, involving every pilot including the commanding officer, in the course of the search. (R. at 82.).
Slip op. at 2. The appellant ultimately pleaded guilty pursuant to a pretrial agreement to desertion and wrongful use of marijuana, in violation of Articles 85 and 112a. A special court-martial composed of a military judge alone sentenced him to confinement for twelve months, reduction to E-3, and a bad-conduct discharge. Pursuant to the pretrial agreement, the convening authority suspended confinement in excess of ten months. The pretrial agreement called for disapproval of confinement in excess of ten months.
During the post-trial process the appellant asserted that the convening authority was disqualified from taking post-trial action in the case on the basis that “as the commanding officer of Air Station Barbers Point and responsible for the search efforts carried out by the air station’s assets, [he] was so closely connected to this case that he had a disqualifying personal interest in the case.” Slip op. at 2. On review, the CCA agrees:
A convening authority is disqualified when he or she has a connection to a case of a personal rather than official nature. United States v. Reed, 2 M.J. 64, 68 (C.M.A. 1976). The test is “whether, under the particular facts and circumstances . . . a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation.” United States v. Jeter, 35 M.J. 442, 445 (C.M.A. 1992) (quoting United States v. Gordon, 1 USCMA 255, 260, 2 C.M.R. 161, 166 (1952)).
In this case, the Convening Authority himself flew sorties searching for Appellant. Although he did so in an official Coast Guard capacity, it was in his capacity as a pilot, entailing personal risks to himself and his flight crew. We see his pilot capacity as different from his capacity as Appellant’s commanding officer. We believe a reasonable person would impute to him a personal interest in this case. See Jeter and cases cited therein, 35 M.J. at 446. We conclude that he was disqualified from taking post-trial action as the Convening Authority.
Slip op. at 2-3.
But Judge Gill dissents.
The majority acknowledges that the Convening Authority’s was acting in an official capacity while participating in the SAR mission but concludes that his official participation as a pilot entailed such risk to himself and his crew that we should impute a personal interest, which disqualifies him from taking action on the case. I disagree.
The Convening Authority is an aviator. Aviators fly. Even the most accomplished air station commanding officers are required to achieve and maintain certain minimum flight hours and satisfactorily conduct prescribed training evolutions on a recurring basis in order to remain proficient and qualified.
Slip op. at 5. Judge Gill identifies some significant factors:
I might be more inclined to concur with the majority if, for example, the record revealed that the Convening Authority’s search flight(s) involved especially hazardous or challenging environmental conditions, resulted in the cancellation of long-planned personal leave, required him to miss a particularly significant personal or family occasion, or were in the nature of a law enforcement search vice humanitarian search and rescue. But it does not. I am reluctant to impute a disqualifying interest to the Convening Authority on the basis of such scant evidence.
Slip op. at 6. But ultimately Judge Gill see this issue as waived:
The Convening Authority’s participation in the search for Appellant was known at the time of trial and at the time of the post-trial Article 39(a) session. The issue was waived by his unconditional guilty plea and failure to raise it a timely manner. Jeter, 35 M.J. at 447 (“We are inclined to believe that generally a violation of Article 22(b) is waived if an accused and his counsel are well aware thereof and make no objection or protest at trial.”).
Slip op. at 6.