16 July 2007, Air Force Court of Criminal Appeals released U.S. v. Burton, ACM 36296, (A.F.Ct.Crim.App. 16 Jul 2007). GCM, officer and enlisted members, contested, Arts 120, 125, and 134. Sentence: 8 years, E-1, DD. Convening Authority disapproved findings of guilty to indecent acts and consensual sodomy, and approved adjudged sentence, but reduced confinement to 7 years. Appellant claimed, inter alia, that military judge erred by denying defense motion to dismiss the rape charge because it was not properly investigated under Article 32, UCMJ, 10 USC sec 832. After initial Art 32 and subsequent referral to GCM, additional evidence of possible crimes was uncovered. The original charge was withdrawn and dismissed, and an identical charge (except for Appellant’s listed unit), as well as three new specs, were preferred.
The Court held: US v. Britton, 26 MJ 24, 26 (C.M.A. 1988) requires that where charges are withdrawn and dismissed, reinstituting the charges “requires the command to start over.” Here, instead of starting over, the original Investigating Officer forwarded the previous Art 32 report to the Convening Authority with no new recommendations. Moreover, the Court found that Appellant’s request to reinvestigate under R.C.M. 405(b) was improperly denied by the military judge. The Gov’t erred. However, “failure to follow [pretrial investigation requirements] does not constitute jurisdictional error.” Article 32(e), UCMJ. Here, Appellant wanted to cross-examine the victim about unspecified veracity offenses, an unauthorized absence, and evidence she had fraudulently enlisted. The SJA, however, had in pretrial advice and otherwise, informed the CA of these matters. Moreover, the victim appeared at trial and testified. The court concluded: “In light of the detailed cross-examination of SrA H conducted at trial, we find that the error in this case was [harmless beyond a reasonable doubt and] not a factor in obtaining the appellant’s conviction.”