IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Keith W. STROTHER, Corporal 

U.S. Marine Corps, Appellant 

No. 03-0655 

Crim. App. No. 200000050 

United States Court of Appeals for the Armed Forces 

Argued October 20, 2004 

Decided March 7, 2005

EFFRON, J., delivered the opinion of the Court, in which 

GIERKE, C.J., CRAWFORD, BAKER, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued); 

Vaughan E. Taylor (on brief); Lieutenant Rebecca S. Snyder, 

JAGC, USNR. 

 

For Appellee: Lieutenant Donald L. Palmer, JAGC, USNR (argued); 

Colonel William K. Lietzau, USMC (on brief); Colonel M.E. 

Finnie, USMC, and Lieutenant Frank L. Gatto, JAGC, USN. 

 

Military Judge: P. J. Straub 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Strother, No. 03-0655/MC 

2

Judge EFFRON delivered the opinion of the Court. 

 At a general court-martial composed of a military judge 

sitting alone, Appellant was convicted, contrary to his pleas, 

of an indecent act and endeavoring to impede an investigation, 

in violation of Article 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 934 (2000). He was sentenced to a badconduct discharge, confinement for 90 days, and reduction to E1. The convening authority approved these results, and the 

Court of Criminal Appeals affirmed in an unpublished opinion. 

 On Appellant’s petition, we granted review of the following 

issue: 

WHETHER THE LOWER COURT ERRED IN UPHOLDING 

THE MILITARY JUDGE’S DENIAL OF A DEFENSE 

MOTION TO REMOVE THE TRIAL COUNSEL, WHO HAD 

ACTED AS THE CASE INVESTIGATOR AND COMMAND 

LEGAL ADVISOR, WHILE IN THE POSITION OF 

STAFF JUDGE ADVOCATE. 

For the reasons set forth below, we conclude that the military 

judge properly rejected the motion to disqualify the trial 

counsel, and we affirm. 

I. BACKGROUND 

A. THE PRELIMINARY INQUIRY 

 Appellant, a corporal, attended a farewell party for a 

sergeant in the unit, which was hosted by the departing member’s 

roommate. Within weeks thereafter, rumors circulated within the 

command about inappropriate sexual activity at the party. The 
United States v. Strother, No. 03-0655/MC 

3

unit’s command sergeant major conducted an investigation and 

concluded that the evidence was insufficient to warrant further 

action. He briefed the Deputy Commander, Chief of Staff, and 

Staff Judge Advocate, all of whom agreed with his assessment of 

the evidence. 

 Subsequently, Major (Maj) Flexer was detailed to serve as 

staff judge advocate for the command. At some point, the 

convening authority and Maj Flexer discussed the incident that 

had been the subject of the prior investigation. Maj Flexer 

conducted a number of interviews. He also inquired into the 

availability of Lieutenant Colonel (LtCol) Harper, a reserve 

officer and an attorney in civilian life, to conduct an inquiry. 

LtCol Harper was ordered to conduct a preliminary inquiry, and 

he discussed various aspects of the case with Maj Flexer, 

including procedural matters, substantive issues, and 

investigative options. As a result of information obtained 

during the preliminary inquiry, Appellant was confined, and Maj 

Flexer represented the command during Appellant’s pretrial 

confinement hearing. 

 During the course of LtCol Harper’s preliminary inquiry, a 

new Staff Judge Advocate, Colonel (Col) Nangle, was assigned to 

the command, and Maj Flexer assumed other legal duties. 

 
United States v. Strother, No. 03-0655/MC 

4

B. THE ARTICLE 32 PRETRIAL INVESTIGATION 

 After receiving LtCol Harper’s report, the convening 

authority ordered a formal pretrial investigation under Article 

32, UCMJ, 10 U.S.C. § 832 (2000), and appointed Maj Chenail as 

the Article 32 Investigating Officer. The convening authority 

also designated Maj Flexer as the Counsel for the Government. 

The Article 32 Investigating Officer conducted a hearing, 

reviewed documentary evidence, and recommended referral of 

charges against Appellant to a general court-martial. 

 

C. TRIAL PROCEEDINGS 

 The convening authority referred the charges to a general 

court-martial. Maj Flexer was detailed to serve as trial 

counsel. The defense moved to disqualify Maj Flexer because of 

his previous participation in the investigatory stages, citing 

Rule for Courts-Martial (R.C.M.) 502(d)(4), which states in 

pertinent part that: 

No person shall act as trial counsel . . . 

in any case in which that person is or has 

been: 

 . . . 

 (B) An investigating officer; . . . 

See also Article 27(a)(2), UCMJ, 10 U.S.C. § 827(a)(2)(2000). 

The defense also cited Appellant’s due process right to a fair 

trial. See U.S. Const. amend. V. 
United States v. Strother, No. 03-0655/MC 

5

 During argument on the motion, defense counsel asserted 

that “the rules say that if a person has been an investigator in 

the same case, he cannot be trial counsel.” According to 

defense counsel, Maj Flexer violated the rules by taking 

statements, speaking to witnesses, arranging for witness travel, 

and participating in the determination to reopen the 

investigation. Defense counsel relied on the record of the 

Article 32 proceeding and presented testimony from LtCol Harper, 

the officer who conducted the preliminary inquiry, concerning 

his interaction with trial counsel. The military judge denied 

the motion, concluding that the trial counsel’s activity did not 

constitute any “overstepping” of the rules. 

 

D. APPELLATE CONSIDERATION 

 Appellant contends in the present appeal that the military 

judge erred in denying the motion to disqualify trial counsel. 

According to Appellant, Maj Flexer was disqualified as a matter 

of due process because his pretrial activities made him an 

“interested party” who could not perform prosecutorial duties 

with the requisite degree of neutrality. In the alternative, 

Appellant contends that Maj Flexer acted as an “investigating 

officer” as that term is used in Article 27, thereby 

disqualifying him from serving as trial counsel. We review the 

military judge’s ruling on a motion to disqualify counsel under 
United States v. Strother, No. 03-0655/MC 

6

an abuse of discretion standard. See United States v. Hamilton, 

41 M.J. 22, 27 (C.M.A. 1994). 

II. DUE PROCESS 

 Appellant asserts Maj Flexer was an “interested party” 

whose participation as a prosecutor violated Appellant’s due 

process rights under the Supreme Court’s decisions in Young v. 

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), 

and Marshall v. Jerrico, 446 U.S. 238 (1980). In support of his 

contention, Appellant notes that Maj Flexer was responsible for 

reviving a dormant investigation; he provided legal advice to 

commanders and investigators during an earlier phase of the 

case; he assisted in decisions leading to grants of immunity; 

this was his “first big case for the command”; the pressure to 

secure a conviction “must have been great,” particularly in view 

of the grants of immunity to other persons whose culpability 

arguably was greater; and his “performance at trial likely would 

have been documented on his fitness evaluation reports.” 

A. DISQUALIFICATION OF A PROSECUTOR AS AN “INTERESTED PARTY” 

 A prosecutor will be disqualified as an “interested party” 

if the prosecutor has a financial or improper personal stake in 

the outcome of the proceeding. The Supreme Court in Young

addressed the propriety of appointing a private party’s lawyer 
United States v. Strother, No. 03-0655/MC 

7

as the prosecuting attorney in a related contempt proceeding, 

and held that “the beneficiary of a court order may not be 

appointed to undertake contempt prosecutions for alleged 

violations of that order.” 481 U.S. at 790. 

 The Court emphasized that a prosecuting attorney: 

is the representative not of an ordinary 

party to a controversy, but of a sovereignty 

whose obligation to govern impartially is as 

compelling as its obligation to govern at 

all; and whose interest, therefore, in a 

criminal prosecution is not that it shall 

win a case, but that justice shall be done. 

As such, he is in a peculiar and very 

definite sense the servant of the law, the 

twofold aim of which is that guilt shall not 

escape nor innocence suffer. 

Id. at 803 (quoting Berger v. United States, 295 U.S. 78, 88 

(1935)). The Court then noted that the distinctive role of the 

prosecutor has been expressly recognized in the American Bar 

Association’s Model Code of Professional Responsibility, Canon 

7, Ethical Consideration 7-13 (1982). See also Model Rules of 

Prof’l Conduct R. 3.8 cmt. 1 (2004). 

 The Court discussed the conflict of interest provisions 

applicable to Department of Justice attorneys, including the 

prohibition against simultaneously representing the Government 

and a private party having a financial interest that could be 

affected by a contempt proceeding. Young, 481 U.S. at 803-04 

(citations omitted). The Court determined that similar 

considerations should apply to a district court’s appointment of 
United States v. Strother, No. 03-0655/MC 

8

a special prosecutor in a contempt proceeding. Id. at 805-09. 

The Court did not express a view as to whether the appointment 

constituted a violation of the due process rights of the parties 

to the contempt proceeding. Id. at 809-10, 814-15. 

 In Marshall v. Jerrico, the Supreme Court discussed 

prosecutorial disqualification in both judicial and 

administrative proceedings in the course of rejecting a due 

process challenge to an administrative procedure. 446 U.S. at 

242-43, 248-50. Under the challenged procedure, the Department 

of Labor imposed civil penalties for certain unlawful labor 

practices, and used the proceeds to reimburse the Department for 

the costs of determining violations and assessing penalties. 

See id. at 239. The Jerrico company contended that the 

potential for reimbursement could distort the department’s 

objectivity by creating an incentive for the assistant regional 

administrator to assert and assess penalties. Id. at 241. This 

procedure violated due process, Jerrico argued, citing the 

practices struck down in Tumey v. Ohio, 273 U.S. 510 (1927) 

(mayor’s salary tied to fines adjudicated by the mayor in a 

judicial capacity), and Ward v. Village of Monroeville, 409 U.S. 

57 (1972) (sums produced by mayor’s court accounted for a 

substantial portion of the municipality’s revenue). Jerrico, 

446 U.S. at 241-42. 
United States v. Strother, No. 03-0655/MC 

9

 The Court rejected the due process argument. Id. at 243-

44. The Court noted that Tumey and Ward both were based on the 

requirement for an adjudication by an impartial tribunal, 

whereas the functions performed by the assistant regional 

administrator “resemble those of a prosecutor more closely than 

those of a judge.” Id. at 243. According to the Court, the due 

process limitations on “officials performing judicial or quasijudicial functions . . . are not applicable to those acting in a 

prosecutorial or plaintiff-like capacity.” Id. at 248. The 

Court added: 

Our legal system has traditionally accorded 

wide discretion to criminal prosecutors in 

the enforcement process . . . . Prosecutors 

need not be entirely neutral and detached[.] 

In an adversary system, they are necessarily 

permitted to be zealous in their enforcement 

of the law. The constitutional interests in 

accurate finding of facts and application of 

law, and in preserving a fair and open 

process for decision, are not to the same 

degree implicated if it is the prosecutor, 

and not the judge, who is offered an 

incentive for securing . . . penalties. 

Id. at 248-49 (citations and internal quotation marks omitted). 

The Court emphasized, however, that the differences between 

prosecutors and judges did not foreclose judicial review of 

prosecutorial activities: 

 We do not suggest . . . that the Due 

Process Clause imposes no limits on the 

partisanship of . . . prosecutors. 

Prosecutors are also public officials; they 

too must serve the public interest. In 
United States v. Strother, No. 03-0655/MC 

10

appropriate circumstances the Court has made 

clear that traditions of prosecutorial 

discretion do not immunize from judicial 

scrutiny cases in which the enforcement 

decisions of an administrator were motivated 

by improper factors or were otherwise 

contrary to law. 

Id. at 249 (citations omitted). After noting the significant 

burden of defending against a prosecution, the Court stated: 

A scheme injecting a personal interest, 

financial or otherwise, into the enforcement 

process may bring irrelevant or 

impermissible factors into the prosecutorial 

decision and in some contexts raise serious 

constitutional questions. But the strict 

requirements of neutrality cannot be the 

same for administrative prosecutors as for 

judges, whose duty it is to make the final 

decision and whose impartiality serves as 

the ultimate guarantee of a fair and 

meaningful proceeding in our constitutional 

regime. 

Id. at 249-50 (citations omitted). 

 The Court reviewed the administrative process at issue and 

concluded that “the influence alleged to impose bias [was] 

exceptionally remote.” Id. at 250. The Court observed that the 

regional administrator did not have a personal financial 

interest in the collection of penalties and that any 

institutional benefit to the organization from the exercise of 

prosecutorial discretion was dependent upon too many 

contingencies. Id. at 250-52. In reaching this conclusion, the 

Court declined to “say with precision what limits there might be 

on a financial or personal interest of one who performs a 
United States v. Strother, No. 03-0655/MC 

11

prosecutorial function . . . .” Id. at 250 (footnote omitted). 

The Court added: “In particular, we need not say whether 

different considerations might be held to apply if the alleged 

biasing influence contributed to prosecutions against particular 

persons, rather than to a general zealousness in the enforcement 

process.” Id. at 250 n.12. 

B. DISCUSSION -- DUE PROCESS 

 The factors cited by Appellant, summarized at the outset 

of Part II of this opinion, do not transform a prosecutor into 

an “interested party” who must be disqualified as a matter of 

due process. The Supreme Court, in Young and Jerrico, 

recognized that prosecutors are advisors and advocates for a 

party. Young, 481 U.S. at 802-03; Jerrico, 446 U.S. at 248-49. 

As such, they need not maintain the degree of neutrality 

required of judges. 

 In civilian society, prosecutors routinely provide advice 

and recommendations on the conduct of investigations, grants of 

immunity, and charging decisions. The fact that such decisions 

later may be challenged at trial or on appeal does not 

disqualify an attorney from serving as a prosecutor as a matter 

of due process. Likewise, a civilian prosecutor, whether 

elected or appointed, inevitably faces the pressure of his or 

her “first big case,” as well as the pressure generated when 
United States v. Strother, No. 03-0655/MC 

12

advice provided in a pretrial setting comes under challenge at 

trial. Such pressures, which come with the territory inhabited 

by prosecuting attorneys, do not transform a prosecutor into an 

interested party. Military prosecutors, like their civilian 

counterparts, are obligated to deal with such pressures in the 

context of the prosecutor’s responsibility to ensure both that 

the guilty not escape and that the innocent not suffer. See

Young, 481 U.S. at 803. 

 Appellant also asserts that Maj Flexer had a conflict of 

interest because he did not respond to defense discovery 

requests in a manner that was timely or complete. The defense 

litigated the issue of discovery in connection with a motion to 

reopen the Article 32 investigation, which was denied by the 

military judge. The defense has not asserted on appeal that the 

military judge committed prejudicial error with respect to 

discovery. While it is possible that prosecutorial abuse of 

discovery in another case would be so egregious as to 

demonstrate impermissible bias requiring disqualification as a 

matter of due process, see Jerrico, 446 U.S. at 250 n.12, this 

is not such a case. The interest of the trial counsel in the 

present case did not approach the type of conflict or bias that 

would have made him an “interested party” under Young and 

Jerrico. 
United States v. Strother, No. 03-0655/MC 

13

III. STATUTORY DISQUALIFICATION 

 Appellant contends that even if Maj Flexer was not 

disqualified as a matter of due process, he should have been 

disqualified in the present case as an “investigating officer” 

prohibited from serving as a trial counsel under Article 

27(a)(2). The statute provides in pertinent part that: “[n]o 

person who has acted as investigating officer, military judge, 

or court member in any case may act later as trial counsel . . . 

. ” Id. 

 In support of his contention that Maj Flexer was a 

statutory “investigating officer” under Article 27, Appellant 

notes that Maj Flexer engaged in a variety of activities more 

characteristic of a police officer rather than a prosecutor. 

According to Appellant, these activities resulted in selective 

prosecution and evidence produced by use of questionable 

investigative techniques. 

A. DEVELOPMENT OF THE “INVESTIGATING OFFICER” DISQUALIFICATION 

 The prohibition on an “investigating officer” serving as a 

prosecutor in courts-martial was first enacted in the 1948 

legislation amending the Articles of War, popularly known as the 

Elston Act. Selective Service Act of 1948, Pub. L. No. 80-759, 

§§ 201-46, 62 Stat. 604, 627-44 (1948) [hereinafter Elston Act]. 

As originally proposed, the provision was designed to ensure 
United States v. Strother, No. 03-0655/MC 

14

that the position of “investigating officer” would not be filled 

by a person having “the attitude of a prosecutor.” See Hearings 

on H.R. 2575 to Amend the Articles of War before Subcomm. No 11, 

Legal, of the House Comm. on Armed Services, 80th Cong. 2036 

(1947)(remarks of Rep. Charles H. Elston, Chairman, and 

Brigadier General Hubert D. Hoover, Assistant Judge Advocate 

General of the Army); H.R. Rep. No. 80-1034, at 2, 15, 18 

(1947). 

 The Elston Act contained two pertinent provisions. The 

first provision, Article of War 11, stated that “no person who 

has acted as member, defense counsel, assistant defense counsel, 

or investigating officer in any case shall subsequently act in 

the same case as a member of the prosecution . . . .” Elston 

Act § 208. The second provision, Article of War 46, stated that 

“[n]o charge will be referred to a general court-martial for 

trial until after a thorough and impartial investigation thereof 

shall have been made,” and referred to the person conducting the 

impartial proceeding as “the investigating officer.” Elston Act 

§ 222. 

 In the aftermath of the 1948 legislation, the President 

promulgated the Manual for Courts-Martial (MCM), U.S. Army, in 

1949 (1949 MCM). Paragraph 6 of the 1949 MCM, governing 

appointment of the trial judge advocate (as the prosecutor was 

then designated), mirrored the statutory disqualification of a 
United States v. Strother, No. 03-0655/MC 

15

person who had served as investigating officer in the same case. 

With respect to the appointment of a pretrial investigating 

officer under Article of War 46, paragraph 35a of the 1949 MCM

provided: “Neither the accuser nor any officer who is expected 

to become a member of the prosecution or defense upon possible 

trial of the case will be designated as investigating officer.” 

Paragraph 41a, of the 1949 MCM, contained a parallel provision: 

The trial judge advocate must be fair and 

free from bias, prejudice, or hostility. If 

he has acted as a member of the court, 

defense counsel, assistant defense counsel, 

or investigating officer in any case he 

shall not subsequently act in the same case 

as trial judge advocate or assistant trial 

judge advocate. 

Under these provisions, the term “investigating officer” in the 

Articles of War and the 1949 MCM referred to a specific 

statutory position, filled by a person required to conduct an 

impartial investigation prior to referral of a case to a general 

court-martial. Because the trial counsel, an advocate for a 

party, would have an institutional conflict, the statute and the 

1949 MCM required the position to be filled by a person who 

would not prosecute the case as trial counsel. 

 The UCMJ, which replaced the Articles of War, as well as 

the Articles for the Government of the Navy, was enacted in 

1950, and took effect in 1951. Act of May 5, 1950, Pub. L. No. 

81-506, 64 Stat. 107 (1950). The new legislation retained the 
United States v. Strother, No. 03-0655/MC 

16

pertinent provisions of the Articles of War without substantive 

change. Article 32 continued the requirement for a “thorough 

and impartial investigation” by an “investigating officer” prior 

to referral of charges to a general court-martial. Article 

27(a) continued the limitation that “[n]o person who has acted 

as investigating officer . . . in any case shall act 

subsequently as trial counsel . . . in the same case.” See H.R. 

Rep. No. 81-491, at 18-20 (1949); S. Rep. No. 81-486, at 15-16 

(1949). 

 The 1951 edition of the MCM reflected the statutory 

prohibition against appointing an investigating officer as trial 

counsel and prohibited appointment of a person to serve as an 

Article 32 Investigating Officer if the person was expected to 

become a member of the prosecution. Manual for Courts-Martial, 

United States, paras. 6, 34 (1951 ed.)(1951 MCM). The 1951 MCM

added an expanded definition of the term “investigating officer” 

for purposes of various disqualifications, including 

disqualification of trial counsel. Id. at para. 64. The new 

definition included: (1) Article 32 investigating officers; and 

(2) “any other person who, as counsel for, or a member of, a 

court of inquiry, or as an investigating officer or otherwise, 

has conducted a personal investigation of a general matter 

involving the particular offense.” Id. The 1951 MCM restricted 

the reach of the new definition of “investigating officer” by 
United States v. Strother, No. 03-0655/MC 

17

providing that the definition would not disqualify “a person 

who, in the performance of his duties as counsel, has conducted 

an investigation of a particular offense or a closely related 

offense with a view towards prosecuting or defending it before a 

court-martial,” except in circumstances addressed in other 

specified portions of the 1951 MCM. Id. 

 Our Court considered whether trial counsel should have been 

disqualified under these provisions in several cases arising in 

the years immediately following promulgation of the 1951 MCM. 

United States v. Lee concluded that an officer’s informal 

investigation prior to preferral of charges did not disqualify 

that officer from serving as trial counsel in a special courtmartial. 1 C.M.A. 212, 218, 2 C.M.R. 118, 124 (1952). Lee

noted that there was a “distinctly arguable” interpretation of 

the applicable statutes under which the disqualification of an 

“investigating officer” only applied to an Article 32 

investigating officer, but concluded that it was not necessary 

to rely on the statutes because paragraph 64 of the 1951 MCM

employed a “broader view” of the term. Id. at 215, 2 C.M.R. at 

121. The opinion concluded that an informal investigation 

conducted to determine whether the facts warranted preferral of 

charges did not transform counsel into an “investigating 

officer” for purposes of the Code or the broader requirements of 

the 1951 MCM. Id. at 218, 2 C.M.R. at 124. Accord United 
United States v. Strother, No. 03-0655/MC 

18

States v. Stringer, 4 C.M.A. 494, 16 C.M.R. 68 (1954); cf.

United States v. DeAngelis, 3 C.M.A. 298, 305, 12 C.M.R. 54, 61 

(1953) (a staff judge advocate’s interactions with 

investigators, in terms of consultation and advice, did not 

transform the judge advocate into an “investigating officer”). 

See also R.C.M. 303 (preliminary inquiry into reported 

offenses). DeAngelis emphasized the critical role of judge 

advocates in the administration of military justice and 

discipline, adding that “it would be incongruous in the extreme 

were we to assume that [a judge advocate] is unable to function 

at all unless and until charges have been preferred and 

investigated.” 3 C.M.A. at 305, 12 C.M.R. at 61. The opinion 

added that participation by lawyers in pretrial matters helps to 

“minimize[] the risk of error arising from faulty pretrial 

investigations” and in reducing the number of “ill-founded 

charges against those subject to military law.” Id., 12 C.M.R. 

at 61. 

 Subsequent to these decisions, the pertinent provisions in 

the 1951 MCM were retained, without substantial change, when a 

revised edition of the MCM was issued in 1969. Manual for 

Courts-Martial, United States, paras. 6a, 34a, 64 (rev. ed. 

1969). The MCM was restructured completely in 1984 to adopt a 

rule-based format, separating binding requirements from nonbinding guidance. See Manual for Courts-Martial, United States 
United States v. Strother, No. 03-0655/MC 

19

(2002 ed.)(2002 MCM), App. 21, Analysis of Rules for CourtsMartial at A21-1 to A21-3 (history and composition of the 1984 

MCM). The 1984 MCM adopted new rules regarding the term 

“investigating officer” as well as disqualification of trial 

counsel. These new rules remain in effect in the current 

edition of the MCM, the 2002 MCM. 

 In contrast to the pre-1984 editions of the MCM, the 2002 

MCM does not contain a general definition of the term 

“investigating officer.” Instead, it uses the term 

“investigating officer” in connection with specific rules. 

R.C.M. 405, for example, implements the formal pretrial 

investigation procedures required by Article 32. R.C.M. 

405(d)(1) uses the term “investigating officer” to describe the 

officer appointed under the rule to conduct the investigation. 

The same provision also provides expressly that “[t]he 

investigating officer is disqualified to act later in the same 

case in any other capacity.” Id.

 R.C.M. 912 governs challenges of panel members for cause. 

Under R.C.M. 912(f)(1)(F), a challenge for cause must be granted 

if the panel member “[h]as been an investigating officer as to 

any offense charged.” The rule also includes a rule-specific 

definition applicable to challenges of panel members for cause: 

For purposes of this rule, “investigating 

officer” includes any person who has 

investigated charges under R.C.M. 405 [a 
United States v. Strother, No. 03-0655/MC 

20

formal Article 32 investigation] and any 

person who as counsel for a member of a 

court of inquiry, or otherwise personally 

has conducted an investigation of the 

general matter involving the offenses 

charged. 

R.C.M. 912(i)(3). 

 By contrast, the rule governing qualification of counsel 

simply notes in pertinent part that a person may not act as 

trial counsel or assistant trial counsel “in any case in which 

that person is or has been . . . [a]n investigating officer . . 

. .” R.C.M. 502(d)(4). The procedure for disqualification of 

counsel does not refer to specific criteria, but instead notes 

generally that “[i]f it appears that any counsel may be 

disqualified, the military judge shall decide the matter and 

take appropriate action.” R.C.M. 901(d)(3). 

 In summary, the initial prohibition against an 

investigating officer serving as trial counsel, which was 

implemented in the 1949 MCM, used the term “investigating 

officer” to describe the officer required to conduct an 

“impartial” investigation prior to referral of charges to a 

general court-martial -- the predecessor of today’s Article 32 

officer. The 1951 MCM provided an expanded definition that 

expressly included persons other than the Article 32 

investigating officer. Our Court in Lee focused on the fact 

that the definition in the 1951 MCM was broader than the 
United States v. Strother, No. 03-0655/MC 

21

statutory term. 1 C.M.A. at 215, 2 C.M.R. at 121. The 

President, in the 1951 MCM, exercised his authority to set forth 

in the MCM broader rights than those established under the UCMJ. 

See, e.g., United States v. Davis, 47 M.J. 484, 486 (C.M.A. 

1998)(noting the authority of the President to do so unless such 

action would clearly contradict the express language of the 

UCMJ). 

 Having established, in paragraph 64 of the 1951 MCM, a 

broader definition of “investigating officer” than required by 

the UCMJ, the President was free in 1984 to take a more narrowly 

tailored approach, so long as the MCM did not set forth a 

provision contrary to or inconsistent with the UCMJ. See

Article 36, UCMJ, 10 U.S.C. § 836 (2000). We note that the 

elimination or tailoring of a provision from the MCM does not 

necessarily mean that the text must be interpreted in its 

narrowest light, particularly if a broader interpretation is 

supported by judicial interpretation of the UCMJ, military 

custom, tradition, or parallel civilian practice. In the 

present case, however, those factors are not present. For 

purposes of disqualification of counsel, the President has 

narrowed the term “investigating officer” to its original usage 

– the disqualification of the officer who conducted the 

“impartial” investigation under the predecessor to Article 32 -- 

and we conclude that there is no basis in law to impose a 
United States v. Strother, No. 03-0655/MC 

22

broader judicial construction. We also note that that this 

appeal does not require us to address the question of whether 

there otherwise might be grounds for disqualifying trial counsel 

who, in the same case, served previously as a hearing officer 

under a service-specific regulation requiring a degree of 

neutrality similar to that of an “impartial” Article 32 officer. 

See United States v. Mann, 50 M.J. 689, 702 (A.F. Ct. Crim. App. 

1999)(noting possible distinction for circumstances involving 

trial counsel’s prior participation in a case in a quasijudicial role). 

 In the case before us, trial counsel did not serve as the 

Article 32 investigating officer, and Appellant has not 

demonstrated that trial counsel’s activities so departed from 

the normal role of a prosecutor as to make him a de facto 

Article 32 “investigating officer.” Cf. United States v. Payne, 

3 M.J. 354 (C.M.A. 1977) (impropriety of Article 32 officer 

receiving ex parte advice from trial counsel). Appellant, at 

trial, did not present testimony from either the Article 32 

officer or the trial counsel. In the absence of such testimony, 

and under the circumstances of this case, we decline to treat 

Appellant’s speculation as to the nature of the interaction 

between trial counsel and the Article 32 officer as sufficient 

to demonstrate that trial counsel became a de facto Article 32 

investigating officer. In that regard, it is also noteworthy 
United States v. Strother, No. 03-0655/MC 

23

that Appellant challenged the validity of the Article 32 

investigation on a variety of grounds, including the actions of 

trial counsel, without calling either the Article 32 officer or 

trial counsel as witnesses. The military judge denied the 

defense motion, and Appellant has not challenged that ruling on 

appeal. Likewise, although Appellant attempts to raise 

discovery violations and selective prosecution as evidence of 

trial counsel’s improper role as an investigating officer, 

Appellant has not assigned issues of law in the present case 

contending that there was error, much less prejudicial error, 

with respect to discovery or selective prosecution. 

IV. Conclusion 

 Appellant has not demonstrated that trial counsel was 

disqualified as a matter of due process or as a result of prior 

service in the same case as a statutory “investigating officer.” 

The decision of the United States Navy-Marine Corps Court of 

Criminal Appeals is affirmed.