                       UNITED STATES NAVY-MARINE CORPS
                          COURT OF CRIMINAL APPEALS
                               WASHINGTON, D.C.

                                           Before
                         D.C. KING, B.T. PALMER, S.A. DOMINGUEZ
                                  Appellate Military Judges

                                  UNITED STATES OF AMERICA

                                                      v.

                               WILLIAM G. MAC
               OPERATIONS SPECIALIST THIRD CLASS (E -4), U.S. NAVY

                                        NMCCA 201500413
                                    SPECIAL COURT-MARTIAL

Sentence Adjudged: 23 September 2015.
Military Judge: CAPT P.C. LeBlanc, JAGC, USN.
Convening Authority: Commanding Officer, USS PINCKNEY (DDG 91).
For Appellant: Maj Jeffrey S. Stephens, USMCR.
For Appellee: Mr. Brian K. Keller, Esq.

                                              21 April 2016

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                                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE
AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

        A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of one
specification of wrongful marijuana use and one specification of assault consummated by a battery in
violation of Articles 112a and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 928. The
appellant was sentenced to eight months of confinement, forfeiture of $1,144.00 per month for eight
months, reduction to pay grade E-1, and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged and, pursuant to a pretrial agreement, suspended all confinement in
excess of six months and further suspended the punitive discharge as long as the appellant waived his
right to administrative discharge proceedings.
        Although not raised by the appellant, we find error occurred when the legal officer authored the
post-trial recommendation after testifying at the appellant’s court-martial.

Judge Dominguez participated in the decision of this case prior to detaching from the court.
                                                      BACKGROUND

        The appellant committed the charged offenses during May-July 2015. During sentencing, the
prosecution called the appellant’s Division Officer, Ensign (ENS) RR, who testified, over defense
objection, that the appellant’s misconduct negatively impacted the work section.1 Additionally, the
appellant offered an evaluation report signed by ENS RR as mitigation evidence. 2 On 5 and 6 October
2015, the appellant sought clemency by asking the CA to disapprove the imposed forfeitures and to defer
automatic forfeitures until the CA’s action.

       As the CA’s legal officer, ENS RR recommended the CA “approve the sentence as adjudged . . .
in accordance with the . . . terms of the pretrial agreement.”3 The legal officer’s recommendation was
served on the appellant’s defense counsel on 13 November 2015,4 and on 17 December 2015, the CA,
without granting the requested clemency, approved the sentence in accordance with the pretrial
agreement.

                                                          DISCUSSION

       Whether an individual is disqualified from serving as the legal officer is a question of law we
review de novo. United States v. Taylor, 60 M.J. 190, 194 (C.A.A.F. 2004).

        A legal officer who testifies on a contested issue is generally disqualified from later advising the
CA in the same case, because “a person who testifies in a case and later has to assess his own testimony is
not likely to give it less than absolute credibility and the fullest possible effect.” United States v. Choice,
49 C.M.R. 663, 665 (C.M.A. 1975). On the other hand, “testifying as to a matter of formality or giving
testimony that is uncontroverted does not disqualify the SJA or legal officer.” United States v. Wansley,
46 M.J. 335, 337 (C.A.A.F. 1997). See also RULE FOR COURT-MARTIAL 1106(b) MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.), Discussion (A witness who “testified as to a contested matter
(unless the testimony is clearly uncontroverted)” may be disqualified from acting as a legal officer).

        The test to be applied in differentiating the two situations is one of “objective reasonableness”; in
other words, “[i]f from [the legal officer's] testimony, it appears that he has a personal connection with the
case, he may not act as reviewing authority. On the other hand, if his testimony is of an official or
disinterested nature only, he may properly review the record.” Choice, 49 C.M.R. at 665 (quoting United
States v. McClenny, 18 C.M.R. 131, 137 (C.M.A. 1955)).

        We find the legal officer’s testimony offered in aggravation over the appellant’s objection was, by
that objection, “a contested matter.” Additionally, his appearance as a witness for the prosecution to give
testimony on a substantive matter such as the level of aggravation of the appellant’s crime cannot be
described as “disinterested.” Finally, the legal officer’s role as the appellant’s workplace supervisor
during a period in which some of the appellant’s offenses occurred, regardless of whether he testified for

1
    Record at 49-52.
2
    Defense Exhibit A at 6.
3
    Legal Officer’s Recommendation of 10 Nov 2015 at 3.
4
 The record is silent on whether the appellant submitted additional clemency matters or whether the legal officer provided an
addendum recommendation.
                                                              2
the prosecution or defense, further demonstrated the legal officer’s interest in the case’s outcome.
Accordingly, we find the legal officer was disqualified from preparing the post-trial recommendation in
this case.

                                              CONCLUSION

        The CA’s action is set aside. The record is returned to the Judge Advocate General for remand to
an appropriate CA for preparation of a new staff judge advocate’s or legal officer’s recommendation and
new CA’s action in compliance with R.C.M. 1105-1107. Thereafter, the record will be returned to this
court for completion of appellate review.

                                                        For the Court




                                                        R.H. TROIDL
                                                        Clerk of Court




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