                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                     Teresa S. MILEY, Molder Chief
                          U.S. Navy, Appellant

                               No. 98-0721

                         Crim. App. No. 9600822


       United States Court of Appeals for the Armed Forces

                        Argued October 22, 2003

                         Decided March 19, 2004

ERDMANN, J., delivered the opinion of the Court, in which GIERKE
 and EFFRON, JJ., joined. BAKER, J., filed a dissenting opinion
                 in which CRAWFORD, C.J., joined.

                                  Counsel

For Appellant:    Lieutenant Rebecca S. Snyder, JAGC, USNR
(argued).

For Appellee: Lieutenant Colonel John F. Kennedy, USMCR
(argued); Colonel Michael Finnie, USMC (on brief).

Military Judge:    N. H. Kelstrom


  This opinion is subject to editorial correction before final publication.
United States v. Miley, No. 98-0721/NA



      Judge ERDMANN delivered the opinion of the Court.

      Molder Chief Petty Officer1 (E-7) Teresa Miley entered

guilty pleas and was convicted by a military judge of larceny

and forgery in violation of Articles 121 and 123, Uniform Code

of Military Justice [UCMJ], 10 U.S.C. §§ 921 and 923 (2000).

She was sentenced by the military judge to a bad-conduct

discharge, 105 days confinement and reduction to the lowest

enlisted grade.

      In accordance with the terms of a pretrial agreement, the

convening authority suspended the bad-conduct discharge and any

confinement in excess of 90 days for a period of 12 months.

Approximately nine months into that period of suspended

punishment, Miley provided a urine sample that tested positive

for the presence of methamphetamine.         In addition to imposing

punishment on Miley under Article 15, UCMJ, 10 U.S.C. § 815

(2000) for wrongful drug use, her suspended sentence was vacated

on the basis of the positive drug test.

      The Navy-Marine Corps Court of Criminal Appeals affirmed

the findings of guilty and the sentence, including the vacation




1
  Chief Petty Officer Miley’s Navy career field is that of a
“Molder,” who is someone who operates all types of foundry
equipment and makes molds and cores. U.S. Bureau of Naval
Personnel, U.S. Navy Interviewer’s Classification Guide (NAVPERS
16701) (1943).

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United States v. Miley, No. 98-0721/NA


of Miley's suspended punishment.             United States v. Miley, NMCM

9600822 (N-M. Ct. Crim. App. February 26, 1998).            Miley filed an

appeal with this Court and we granted review of her challenge to

the vacation of the suspended sentence and specified an issue

for review concerning the use of polygraph evidence as part of

that vacation proceeding.       United States v. Miley, 51 M.J. 232

(C.A.A.F. 1999).

      After noting that the record included a number of

conflicting and incomplete affidavits regarding the vacation

proceeding, we concluded that the record was not appropriate for

appellate review.     Id. at 233.        Our disposition of the appeal

provided the convening authority the option of either (1)

conducting further proceedings under United States v. DuBay, 17

C.M.A. 147, 37 C.M.R. 411 (1967) or (2), if a DuBay proceeding

was deemed impractical, ordering a new vacation proceeding.            Id.

      On remand, the convening authority chose to order a new

vacation proceeding.      At the conclusion of that proceeding, the

convening authority again vacated Miley's suspended sentence and

her case was transmitted to the Court of Criminal Appeals for a

second review under Article 66(c), UCMJ, 10 U.S.C. § 866(c)

(2000).

      The Court of Criminal Appeals once again affirmed the

findings of guilt and the sentence, including the vacation of

Miley's suspended sentence.       United States v. Miley, NMCM



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United States v. Miley, No. 98-0721/NA


9600822 (N-M. Ct. Crim. App. October 11, 2002).   In response to

Miley’s second appeal to this Court, we granted review of the

following Issue I and specified Issue II:

      I.   WHETHER THE LOWER COURT ERRED BY FINDING THAT THE
      VACATION HEARING OFFICER NEED NOT MAKE FINDINGS OF FACT AND
      PROVIDE A WRITTEN EVALUATION OF THE FACTS UPON WHICH SHE
      RELIED IN RECOMMENDING THAT THE SUSPENDED PORTION OF
      APPELLANT'S SENTENCE NOT BE VACATED WHERE THE GENERAL
      COURT-MARTIAL CONVENING AUTHORITY, WHO PROVIDED A WRITTEN
      EVALUATION OF THE EVIDENCE HE RELIED ON, DISAGREED WITH THE
      HEARING OFFICER'S RECOMMENDATION AND VACATED A PORTION OF
      THE SUSPENDED SENTENCE.

      II. WHETHER THE LOWER COURT ERRED BY FINDING THAT THE
      EVIDENCE PRESENTED AT THE VACATION HEARING WAS SUFFICIENT
      TO SUPPORT A FINDING OF MISCONDUCT WHERE THE SPCMCA APPLIED
      A PROBABLE CAUSE EVIDENTIARY STANDARD AND WHERE IT IS
      UNCLEAR WHAT STANDARD WAS APPLIED BY THE GCMCA.

      We hold that the vacation hearing officer's decision and

recommendation to the general court-martial convening authority

did not comply with the requirements of Rule for Courts-Martial

1109 [R.C.M.] and, as a consequence, that the Court of Criminal

Appeals erred in affirming Miley’s findings and sentence.   In

light of the disposition of Issue I, we do not reach Issue II.

                                 BACKGROUND

     The convening authority opted to conduct a second vacation

proceeding rather than conduct a DuBay inquiry concerning

alleged deficiencies in the first vacation proceeding.    The

"vacation hearing officer", i.e., the special court-martial

convening authority (SPCMCA), held a hearing in March of 2000 in

accordance with R.C.M. 1109(d)(1)(A) for the purpose of



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United States v. Miley, No. 98-0721/NA


determining whether Miley had violated the conditions of her

suspension.

      Miley’s defense to the alleged wrongful methamphetamine use

was a claim of innocent ingestion, as it had been at the first

vacation hearing.     She asserted that her daughter’s boyfriend

had stored methamphetamine in some Tylenol gel capsules that he

had inadvertently left in their household.     According to Miley,

neither she nor her daughter was aware of the boyfriend’s

actions and as a result her daughter had unwittingly given her

two of the methamphetamine-laced Tylenol gel capsules for a

headache.    Miley also testified that she had become sick and

began vomiting after taking the Tylenol gel capsules.

      Although they did not testify in person at the second

vacation proceeding, the testimony given by Miley’s daughter and

the ex-boyfriend in the Article 15 proceeding was considered by

the SPCMCA.    That testimony supported Miley’s innocent ingestion

claim, with the ex-boyfriend asserting that he had in fact lost

his Tylenol gel capsules and believed that they had fallen from

his pants pockets while changing clothes at the Miley residence.

      Miley was the only witness to provide testimony at her

vacation hearing.     The SPCMCA also considered several items of

documentary evidence, including the terms of the pretrial

agreement, the drug laboratory report, and the record of the

Article 15 proceedings.      At the conclusion of the hearing, the



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United States v. Miley, No. 98-0721/NA


SPCMCA indicated that she would “render [her] decision as to

whether there is probable cause to believe that the conditions

of [Miley’s] suspension have been violated; and if so, whether

to vacate the suspended sentence . . . ."

      After adjourning to consider the matter, the SPCMCA called

the hearing back to order and issued the following ruling:

      I have carefully looked over your issue. The bottom line
      is that I am not going to vacate your suspended sentence.
      That is the first thing, not because I don’t think you’re
      guilty, but because three years ago, the Navy should have
      done it correctly. Therefore the Federal Government and
      U.S. Navy should be held responsible for this. You should
      not have to come back three years later because the Navy
      didn’t do its’ [sic] job correctly the first time. I am
      not positive whether I buy your story or not. I have been
      here nine months at [Transient Personnel Unit], and I don’t
      buy many stories. Whether you knowingly ingested it or
      not, I don’t know. I believe you showed poor judgment in
      having an individual of that character in your house with
      your 17-year old daughter. I certainly hope that over the
      last three years you have seen the light, changed your
      behavior, and are now making a positive contribution to
      society.

      I find that there was not probable cause to believe that
      the conditions of your suspension have been violated.

      My recommendation is not to vacate the suspended sentence.

      The Hearing Officer then completed the appropriate portions

of DD Form 455 “Report of Proceedings”2 and formally recommended

that the suspension of the sentence not be vacated.   This DD

Form 455 and a Record of Vacation Hearing were forwarded to the


2
  The full title of the Form is “Report of Proceedings to Vacate
Suspension of a General Court-Martial Sentence or of a Special
Court-Martial Sentence Including a Bad-Conduct Discharge under
Article 72, UCMJ, and R.C.M. 1109.”

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United States v. Miley, No. 98-0721/NA


General Court-Martial Convening Authority (GCMCA) for review and

further action.

      The GCMCA rejected the SPCMCA’s recommendation that the

suspended sentence not be vacated and provided the following

summary of the evidence he relied upon:

      1. In determining whether MLC Miley’s suspended sentence
      should be vacated, I considered: (a) her positive
      urinalysis of 3 June 96 (as evidenced by Navy Drug
      Screening laboratory ltr 5355 Ser 41/C1439 of 24 Nov 99
      w/enclosures), (b) her claim of innocent ingestion, as set
      forth in the transcript of her testimony at the 20 March
      2000 vacation hearing as well as her NJP appeal package of
      18 July 96, which includes statements by [her daughter and
      her daughter’s ex-boyfriend], (c) her court-martial
      conviction for larceny and forgery, and (d) the terms of
      MLC Miley’s pretrial agreement.

      2.   On the advice of my Staff Judge Advocate, I did not
      consider any information about a polygraph examination to
      which MLC Miley may or may not have submitted; nor did I
      consider any of the information contained in exhibits (2)
      and (9) of the recorder’s document package. I note MLC
      Miley’s counsel objected to these documents at the hearing
      and the hearing officer did not accept these documents for
      consideration.

The GCMCA then went on to provide the following reasons for his

decision:

      1.   I find MLC Miley violated the terms of her pretrial
      agreement when, during the period of her suspended
      sentence, she knowingly used methamphetamine in violation
      of Article 112A [sic], UCMJ.

      2.   I do not believe MLC Miley’s claim of innocent
      ingestion. The improbability of her story, in addition to
      her court-martial conviction for offenses involving
      dishonesty and deception, gives her little credibility.
      Further, the statement of [her daughter’s ex-boyfriend], an
      admitted drug-abuser, is unbelievable and offers little to
      support her claim. I am convinced MLC Miley knowingly used



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United States v. Miley, No. 98-0721/NA


      methamphetamine and, thus, violated the terms of her
      pretrial agreement.

The GCMCA then vacated the suspension of Miley’s bad-conduct

discharge and her reduction to the lowest enlisted grade.

                                 DISCUSSION

      This appeal centers on the respective roles of the SPCMCA

and the GCMCA in the process for vacating a suspended sentence

of a general court-martial.       That process is governed by Article

72, UCMJ, 10 U.S.C. § 872 (2000) and R.C.M. 1109, both of which

require that the SPCMCA (1) conduct a hearing on the alleged

violation of the conditions of suspension and (2) transmit a

record of that hearing and his/her recommendation to the GCMCA.

See Article 72(a)-(b); R.C.M. 1109(d)(1)(A), (D).

      Upon receipt of the package, the GCMCA is required to

review the record and the SPCMCA’s recommendation and decide

whether the probationer violated a condition of suspension.             If

so, the GCMCA must decide whether to vacate the suspended

sentence.    R.C.M. 1109(d)(2)(A).           If a decision is made to

vacate the suspended sentence, the GCMCA is required to prepare

a written statement of the evidence relied on and the reasons

for that decision.     Id.

      The SPCMCA conducted the required hearing and she sent a

record of that hearing to the GCMCA along with DD Form 455.             The

GCMCA rejected the SPCMCA's recommendation and provided his

required "written statement of the evidence relied on and the


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United States v. Miley, No. 98-0721/NA


reasons for vacating the suspended sentence."       R.C.M.

1109(d)(2)(A).

      Miley contends that the process followed here was

defective, however, because the SPCMCA never resolved the

factual questions underlying the attempt to vacate her suspended

sentence and made no determination as to whether those facts, as

found, warranted vacation of the suspended sentence.         While the

SPCMCA's recommendation was favorable to Miley, i.e., to not

vacate the suspension, it was not based on any factual

determination that Miley had not violated the terms of her

suspension.    Rather, the SPCMCA's recommendation appears to have

been based, as the Court of Criminal Appeals put it, "on

equitable grounds."      Miley, NMCM 9600822 at 6 (N-M. Ct. Crim.

App. October 11, 2002).

      The Court of Criminal Appeals held that the SPCMCA as "the

hearing officer [was] obligated to provide an evaluation of any

contested facts and a determination of whether the facts as

found warrant vacation."       Id.   The court below viewed that

"obligation" as arising under its earlier decision in United

States v. Dupuis, 10 M.J. 650, 653 (N.C.M.R. 1980).          The Dupuis

decision, in turn, characterized the SPCMCA's obligation to

evaluate and determine contested facts as "constitutional due

process requirements" flowing from our decision in United States

v. Bingham, 3 M.J. 119 (C.M.A. 1977).        See Dupuis, 10 M.J. at



                                         9
United States v. Miley, No. 98-0721/NA


653 (characterizing Bingham as addressing constitutional due

process).

      Although we need not decide today whether this is a

requirement of constitutional dimension, we agree with the Court

of Criminal Appeals that the SPCMCA is required to provide an

evaluation of any contested facts and a determination of whether

the facts, as found, warrant vacation of the suspension.       That

obligation arises as a requirement under R.C.M. 1109(d)(1).

      The rule requires the SPCMCA to "personally hold a hearing"

on the alleged violation of the conditions of suspension, make a

summarized record of that hearing and to transmit both the

record and a "written recommendation concerning vacation" to the

GCMCA.   R.C.M. 1109(d)(1)(A), (D).       The SPCMCA acts as the

GCMCA’s eyes and ears during this process and is the only

official to personally observe the demeanor of the witnesses –

in this case Miley.

      The requirements set forth in R.C.M. 1109(d)(1) would have

little meaning if the SPCMCA was not required to resolve any

contested evidentiary questions and provide the basis for that

resolution to the GCMCA.       As Senior Judge Everett has reminded

us in the past, "'[a]lways salt down the facts first:       the law

will keep.'    . . . In the very nature of things, it is

impossible for a court to enter a valid judgment declaring the

rights of parties to litigation until the facts on which those



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United States v. Miley, No. 98-0721/NA


rights depend have been 'salted down' in a manner sanctioned by

law."    United States v. Haney, 45 M.J. 447, 448 (C.A.A.F.

1996)(quoting then North Carolina Supreme Court Justice Sam

Ervin in Erickson v. Starling, 71 S.E.2d 384, 395-96 (N.C.

1952)).    To the extent that the hearing contemplated by R.C.M.

1109(d)(1) is the only "hearing" conducted during the vacation

process, it makes little sense to conclude that the rule does

not require that any facts actually be "salted down" at the

hearing.

          Accordingly, the "written recommendation" required of the

SPCMCA under R.C.M. 1109(d)(1)(D) must include both an

evaluation of the contested facts and a determination of whether

the facts warrant vacation.       The SPCMCA's comments at the

conclusion of Miley's hearing that "I am not positive whether I

buy your story or not" and "[w]hether you knowingly ingested it

or not, I don't know" fall short of fulfilling the requirements

of R.C.M. 1109(d)(1)(D).       As the Court of Criminal Appeals

noted, she "failed to evaluate the facts" and chose to make a

recommendation based on "equitable grounds."      Miley at 6.     We

must now address the consequences, if any, that flow from that

error.

        Citing its decision in Dupuis, the Court of Criminal

Appeals concluded that "[i]f the hearing officer fails to

provide the required evaluation of facts, that defect may be



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United States v. Miley, No. 98-0721/NA


cured by the GCMCA."      Id.   In Dupuis, as in the present case,

the SPCMCA provided "no evaluation" of the evidence even though

the facts were contested.       Dupuis, 10 M.J. at 653.    The Court of

Military Review observed that it was "preferable" that such an

evaluation be provided by the SPCMCA, but concluded that the

“failure to do so" was not "fatal" if the GCMCA "remedies the

defect by making the necessary evaluation and findings of fact."

Id. at 653-54.

      We disagree.    While there may well be forms of error

committed by an SPCMCA in fulfilling his or her responsibilities

under R.C.M. 1109(d)(1) that a GCMCA's compliance with R.C.M.

1109(d)(2) might "remedy," a failure to evaluate and determine

the contested facts is not one of them.      While the GCMCA was

“convinced that Miley knowingly used methamphetamine and, thus,

violated the terms of her pretrial agreement” none of those

facts were discussed or found by the SPCMCA, the official who

was in the best position to evaluate the demeanor and

credibility of the only live witness.

      The "record produced by and the recommendation of" the

SPCMCA is the basis upon which the GCMCA must "decide whether

the probationer violated a condition of suspension, and, if so,

decide whether to vacate the suspended sentence."         R.C.M.

1109(d)(2)(A).     As we have recognized in the past, the GCMCA's

review of that record and his or her ultimate decision



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United States v. Miley, No. 98-0721/NA


"represents a substantial right because the [GCMCA] may for any

reason or no reason at all decide not to vacate the agreed-upon

suspension."    United States v. Smith, 46 M.J. 263, 268 (C.A.A.F.

1997).   However, without any resolution of disputed facts and/or

determinations of witness credibility by the SPCMCA, the GCMCA

is left with an insufficient record upon which to base his or

her ultimate decision.

      The GCMCA correctly set forth his decision and the evidence

that he relied upon in making that decision, however the record

that he relied upon was devoid of an integral step -- the

resolution of critical fact questions by the SPCMCA.      Miley had

a substantial right to that step in the process and we will not

speculate as to what decision the GCMCA may have made if the

SPCMCA had properly evaluated and resolved the contested facts

in the record.     Cf. United States v. Chatman, 46 M.J. 321, 323-

24 (C.A.A.F. 1997)(refusing to speculate as to what the

convening authority might have done if the post-trial review

process had been conducted properly).

                                 CONCLUSION

     Accordingly, the decision of the United States Navy-Marine

Corps Court of Criminal Appeals and the action of the general

court-martial convening authority in vacating the suspension of

the sentence are set aside.       The record of trial is returned to

the Judge Advocate General for remand to the general court-



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United States v. Miley, No. 98-0721/NA


martial convening authority to determine whether further

vacation proceedings are practicable.          If deemed practicable,

the proceedings shall be conducted in a manner consistent with

this opinion.    If deemed impracticable, the general court-

martial convening authority shall enter a supplemental action in

the record consistent with his or her obligations under the

terms of the pretrial agreement.          Thereafter, Articles 66 and

67, UCMJ, 10 U.S.C. §§ 866 and           867 (2000) will apply.




                                     14
United States v. Miley, No. 98-0721/NA


      BAKER, Judge, with whom CRAWFORD, Chief Judge, joins (dissenting):

      In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme

Court recognized a tension between due process fact finding and

the informal nature of parole revocation hearings.      We have been

cognizant of these tensions as applied to vacating suspended

sentences in the military, United States v. Bingham, 3 M.J. 119

(C.M.A. 1977), but in my view the majority here swings the

pendulum too far in the direction of procedural form and away

from essential substance.       The unfortunate consequence is an

unnecessarily burdensome vacation procedure that may discourage

commanders from suspending sentences where such suspension is

warranted.    Consequently, I respectfully dissent.

                                    Discussion

      Appellant’s vacation package included the following:

      (1) The report of the lab indicating that a member with
      Appellant’s Social Security Number had tested positive for
      drug use.

      (2) Paperwork reflecting the chain of custody for the urine
      sample in question.

      (3) A report of the imposition of punishment pursuant to
      Article 15, Uniform Code of Military Justice [hereinafter
      UCMJ], 10 U.S.C. § 815 (2000) on July 1, 1996, and her
      subsequent appeal reflecting, inter alia, (a) the
      Commanding Officer’s determination by a preponderance of
      the evidence that Appellant had knowingly and wrongfully
      used methamphetamine; and, (b) that while Appellant was
      aware of her right to contest the charged conduct at a
      court-martial, she had ultimately accepted an Article 15.




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United States v. Miley, No. 98-0721/NA


      (4) A two-page written statement from Appellant providing
      her account of events leading to her innocent ingestion of
      the methamphetamine.

      (5) A statement from Appellant’s daughter and her
      daughter’s boyfriend stating their accounts of Appellant’s
      innocent ingestion of the drug.

Before making her vacation recommendation to the General Court-

martial Convening Authority (GCMCA), the Special Court-martial

Convening Authority (SPCMCA), acting as hearing officer,

reviewed this documentation and took oral testimony from

Appellant.    Appellant’s testimony describing the events leading

to her innocent ingestion of the methamphetamine was consistent

with her written statement.

      The hearing officer subsequently forwarded the

documentation cited above, the hearing transcript, and her

recommendation to the GCMCA.       The transcript includes the

following statement made by the hearing officer:

           I have carefully looked over your issue. The bottom
      line is that I am not going to vacate your suspended
      sentence. That is the first thing, not because I don’t
      think you’re guilty, but because three years ago, the Navy
      should have done it correctly. Therefore the Federal
      Government and U.S. Navy should be held responsible for
      this. You should not have to come back three years later
      because the Navy didn’t do its’ [sic] job correctly the
      first time. I am not positive whether I buy your story or
      not. I have been here nine months at [Transient Personnel
      Unit (TPU)], and I don’t buy many stories. Whether you
      knowingly ingested it or not, I don’t know. I believe you
      showed poor judgment in having an individual of that
      character in your house with your 17-year old daughter. I
      certainly hope that over the last three years you have seen
      the light, changed your behavior, and are now making a
      positive contribution to society.


                                         2
United States v. Miley, No. 98-0721/NA




           I find that there was not probable cause to believe
      that the conditions of your suspension have been violated.

           My recommendation is not to vacate the suspended
      sentence.

(Emphasis added.)

      The majority concludes that the vacation package sent to

the GCMCA lacked three requisites:           (1) a written evaluation of

the contested facts; (2) a resolution of the contested facts;

and, (3) a written determination of whether the facts, as found,

warranted vacation of the suspension.          The majority also states

that “Miley had a substantial right to that step in the process

and we will not speculate as to what decision the GCMCA may have

made if the SPCMCA had properly evaluated and resolved the

contested facts in the record.”          ___ M.J. (13).   In my view,

this record, evaluation, and recommendation comply with

applicable due process requirements.          Black v. Romano, 471 U.S.

606 (1985); Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey,

408 U.S. at 471; Bingham, 3 M.J. at 119.

      The hearing officer’s evaluation and recommendation

certainly could have been refined.           But the vacation hearing was

not intended to substitute for a judicial hearing; a hearing

officer’s evaluation of facts and recommendation are not

intended to conform to a military judge’s findings of fact and

conclusions of law.      The Court in Morrissey and Romano




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United States v. Miley, No. 98-0721/NA


recognized that there is a tension in parole revocation hearings

between due process and the informal nature of the proceedings

in question.    Morrissey, 408 U.S. at 484-85 (“We now turn to the

nature of the process that is due, bearing in mind that the

interest of both State and parolee will be furthered by an

effective but informal hearing.”); Romano, 471 U.S. at 611 (“Our

previous cases have sought to accommodate these [probationers’

and States’] interests while avoiding the imposition of rigid

requirements that would threaten the informal nature of

probation revocation proceedings or interfere with exercise of

discretion by the sentencing authority.”).            As a result, the

Supreme Court sought a balance between the two and signaled to

the legal field that subordinate courts should do the same when

addressing comparable processes.             Referring to the preliminary

hearing of a two step parole revocation process the Supreme

Court in Morrissey wrote:

      “[T]he decision maker should state the reasons for his
      determination and indicate the evidence he relied on . . .”
      but it should be remembered that this is not a final
      determination calling for “formal findings of fact and
      conclusions of law.” No interest would be served by
      formalism in this process; informality will not lessen the
      utility of this inquiry in reducing the risk of error.

408 U.S. at 487 (quoting Goldberg v. Kelly, 397 U.S. 254, 271

(1970)).

      In striking the Morrissey balance in the military context,

I believe the majority overlooks the Court’s caution regarding


                                         4
United States v. Miley, No. 98-0721/NA


what it referred to as “formalism.”            In this case, the hearing

officer garnered the facts, evaluated them, and stated reasons

supporting her recommendation.           The hearing officer found the

facts inconclusive:

      I am not positive whether I buy your story or not. I have
      been here nine months at TPU, and I don’t buy many stories.
      Whether you knowingly ingested it or not, I don’t know.

Although the hearing officer might have better documented her

conclusion that she could not determine who was telling the

truth, I would not require a hearing officer to reach a factual

conclusion when in her view the evidence does not support one

factual conclusion over another.             That is a conclusion in its

own right that the GCMCA can effectively consider while

exercising his duty to decide on vacation and “complete a

written statement ‘as to the evidence relied on and the reasons

for revoking parole’.”      Bingham, 3 M.J. at 123 (quoting

Morrissey, 408 U.S. at 489).       Further, the hearing officer

ultimately based her recommendation on equitable grounds

involving the procedural history of the case as opposed to her

evaluation of the underlying facts.            I do not see this as

problematic, however, since she stated on the record her

rationale for doing so.      The GCMCA remained free to agree or

disagree with the hearing officer’s recommendation and reasons

and had a full record on which to assess her reasoning and base

his independent conclusions.


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United States v. Miley, No. 98-0721/NA


      The more intensive procedures the majority desires will

likely discourage convening authorities from suspending

sentences as it may now appear too difficult for SPCMCAs to

create a reversal-proof record.          This would be an unfortunate

result.   Suspended sentences serve important societal and

military interests.      They can be used to provide essential

income for innocent dependents compelled to transition to

civilian society as a result of the military member’s conduct.

Moreover, a suspended discharge may give a commanding officer

further time and opportunity to assess the rehabilitation

potential of a once promising service member.         Suspended

sentences also serve to regulate and encourage good conduct

while service members await discharge or serve confinement.

      Vacation hearings might benefit from the sort of findings

of fact more familiar to military judges than to commanding

officers.    However, I believe such a requirement is neither

compelled as a matter of due process nor currently found in

Article 72, UCMJ, 10 U.S.C. § 872 (2000) or Rule for Courts-

Martial 1109.    The vacation record should include a transparent

rendering of what occurred and why as well as a rendering of the

evidence, but the process should not unduly burden commanders so

as to discourage them from suspending sentences where they are

warranted.




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United States v. Miley, No. 98-0721/NA


        In this case, the GCMCA had all the available facts and

arguments on his desk.      He also had the hearing officer’s

honest, transparent, and albeit ultimately uncertain assessment

of Appellant’s defense on his desk.          In my view, Appellant

received the process due and had fair opportunity to make her

case.    As a result, I respectfully dissent.




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