UNITED STATES, Appellee

                                        v.

            Ramon S. GUTIERREZ, Jr., Private First Class
                        U.S. Army, Appellant

                                  No. 01-0802

                          Crim. App. No. 9900509


       United States Court of Appeals for the Armed Forces

                          Argued March 20, 2002

                          Decided August 8, 2002


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., and SULLIVAN, S.J.,
joined.

                                    Counsel

For Appellant: Captain Mary Catherine Vergona (argued);
Colonel Adele H. Odegard, Lieutenant Colonel E. Allen Chandler,
Jr., Major Imogene M. Jamison, and Captain Sean S. Park (on
brief).

For Appellee: Captain Christopher Graveline (argued); Colonel
Steven T. Salata and Major Margaret B. Baines (on brief);
Captain Paul T. Cygnarowicz.


Military Judge:     Donna L. Wilkins


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gutierrez, No. 01-0802/AR


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Pursuant to his pleas, appellant was convicted of two

specifications of stealing a vehicle, robbery, two

specifications of conspiring to steal a vehicle, conspiring to

commit robbery, and receiving stolen property, in violation of

Articles 121, 122, 81, and 134, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 921, 922, 881, and 934.    The convening

authority approved the sentence of a dishonorable discharge,

five years’ confinement, total forfeitures, and reduction to the

lowest enlisted grade.    The Court of Criminal Appeals affirmed

in a short form opinion.    We granted review of the following

issues:

     I.   WHETHER APPELLANT IS ENTITLED TO A NEW REVIEW AND
          ACTION BECAUSE THE STAFF JUDGE ADVOCATE WHO
          PREPARED THE RECOMMENDATION AND ADDENDUM WAS
          DISQUALIFIED AFTER SHE TESTIFIED AS A WITNESS
          REGARDING A CONTESTED MATTER AND AFTER SHE SERVED
          AS A TRIAL COUNSEL IN APPELLANT’S COURT-MARTIAL.

     II. WHETHER THE STAFF JUDGE ADVOCATE IMPROPERLY
         SUBMITTED NEW MATTERS TO THE CONVENING AUTHORITY
         IN THE ADDENDUM TO HER POST-TRIAL RECOMMENDATION.

As to Issue I, we hold that the Staff Judge Advocate (SJA) was

disqualified.   Given our resolution of Issue I, we need not

reach Issue II.

                                FACTS

     Prior to his pleas, appellant made a motion to dismiss for

lack of a speedy trial.    Major (MAJ) Laurel Wilkerson, the Chief



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of Military Justice at Fort Drum, testified as to the reasonable

diligence in bringing appellant’s case to trial.   She testified

that when she finally notified appellant’s defense counsel, an

arrangement was made for an investigation under Article 32,

UCMJ, 10 USC § 832, “around the beginning of March.”    Defense

counsel contradicted this testimony during argument on the

motion, stating “with absolute metaphysical certainty that there

wasn’t [coordination] with this defense counsel” during the

week, thereby disputing MAJ Wilkerson’s testimony about

coordination with defense counsel in the pending case.

   MAJ Wilkerson’s testimony also was contradicted by a

stipulation of fact indicating that appellant’s defense counsel

was notified on February 18, 1999, that an Article 32

Investigating Officer had been appointed, and that the hearing

was set for February 20, 1999.   Defense counsel contended at

trial that the purpose of the short-notice hearing was to force

the defense to assume legal responsibility for the Government’s

processing delays in bringing the case to trial.   The judge

noted the contradiction in MAJ Wilkerson’s testimony, but the

motion to dismiss was denied and the trial proceeded with a

guilty plea.

     While testifying about her pretrial efforts to ensure

appellant received a speedy trial, MAJ Wilkerson testified that

“we” (presumably government counsel) had to direct the Criminal


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Investigation Command’s (CID) investigation of appellant’s case.

She testified that she and her trial counsel were “just running

around with CID, making sure that we had the evidence we needed

to get [this] case[] together.”

        At some point, MAJ Wilkerson became the SJA of Fort Drum

because part of the unit was deploying to Bosnia.            In that

capacity, she prepared a post-trial recommendation for the

convening authority recommending approval of appellant’s court-

martial results.      In response to MAJ Wilkerson’s recommendation,

the defense contended she was disqualified from making a

recommendation due to her testimony at appellant’s court-

martial.     To this, MAJ Wilkerson responded in an addendum that

her testimony was merely “administrative in nature and

uncontroverted.”      As a result, the convening authority accepted

her recommendation.

                                 DISCUSSION

        If an SJA testifies as a witness at a court-martial

    concerning a contested matter, he or she may be disqualified

    from thereafter serving as the SJA for the convening authority

    in that case.   RCM 1106(b) and Discussion, Manual for Courts-

    Martial, United States (2000 ed.).*     At the time of MAJ

    Wilkerson’s testimony, this Court had left open the question of


*
  This Manual provision is identical to the one in effect at the time of
appellant’s court-martial.



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whether a guilty plea waives a speedy trial issue.   See, e.g.,

United States v. Birge, 

, 211 (1999)(citing earlier

cases holding there could not be a waiver and later cases

upholding a waiver).   We are not resolving the waiver issue here

because it is not directly presented, but so long as that issue

remains unresolved, testimony on a contested speedy trial issue

involves testimony on an issue potentially subject to post-trial

review.   Therefore, we hold that MAJ Wilkerson placed herself in

a position where she would be called upon as SJA to evaluate her

own testimony regarding the contested speedy trial issue,

thereby disqualifying her from serving as the reviewing SJA.

See United States v. Lynch, 

, 229 (CMA 1994) (“[W]here

a legitimate factual controversy exists between the [SJA] and

the defense counsel, the [SJA] must disqualify himself from

participating in the post-trial recommendation.”).

     MAJ Wilkerson was disqualified because she assumed a

prosecutorial role in appellant’s case.   Having actively

participated in the preparation of the case against appellant,

MAJ Wilkerson was not in a position objectively to evaluate the

fruits of her efforts.   In United States v. Willis, 22 USCMA

112, 114, 46 CMR 112, 114 (1973), this Court held that general

advice to a trial counsel and investigator is not disqualifying.

However, this Court cautioned:




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          [A] staff legal officer may become so deeply and
          personally involved as to move from the role of
          advis[o]r to the role of participant. Once he [or
          she] acts in that capacity, he [or she] is
          disqualified from later performing any inconsistent
          function.

     MAJ Wilkerson crossed the line from advisor to active

participant when she actively participated in a prosecutorial

capacity to orchestrate the timing of the Article 32

investigation to force the defense to assume responsibility for

the delay.

     The decision of the United States Army Court of Criminal

Appeals and the action of the convening authority are set aside.

The record of trial is returned to the Judge Advocate General of

the Army for remand to a convening authority for a new post-

trial recommendation and action.       Thereafter, Articles 66 and

67, UCMJ, 10 USC §§ 866 and 867, will apply.




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