28. The Post-Trial Process

Chapter 28

Post-Trial Processes

 

1.       References

2.       Summary of the Process

3.       Duties of Counsel

4.       Notice Concerning Post-Trial & Appellate Rights

5.       Report of Result of Trial; Deferment and Waiver

6.       Post-Trial Sessions

7.       Preparation of the Record of Trial

8.       Authenticating and Serving Records of Trial

9.       Matters Submitted by the Accused

10.       Matters Submitted by a Victim

11.       Recommendation of the SJA or Legal Officer         

12.       Action by Convening Authority and Entry of Judgement

13.       Post-Trial Processing Time

14.       Suspension of Sentence

15.       Execution of Sentence

16.       Promulgating Orders

17.       Ineffective Assistance of Counsel

• Appx.       Post-trial Chart

 

I. References

A. UCMJ, Articles 55-76a.

B. Manual for Courts-Martial (2016 Edition).

C. Military Justice Act of 2016.  

D. Military Justice Review Group (MJRG), Report of the MJRG, Part I: UCMJ Recommendations (Part II was never completed) (http://ogc.osd.mil/images/report_part1.pdf)

E. 2014 & 2015 National Defense Authorization Act (NDAA).

F. Executive Order (EO) 13696, dated 17 June 2015.

G. EO 13825, dated 1 March 2018 (there is at least one additional EO pending a/o 1 December 2018)

H. U.S. Dep’t of Army, Reg. 27-10, Military Justice ch. 5 (11 May 2016) [hereinafter AR 27-10] (pending revisions to incorporate MJA 2016 changes).

I. Francis Gilligan & Frederic I. Lederer, Court-Martial Procedure, 2015 (vol. 2), Chapter 24.

J. United States Army Court of Criminal Appeals, Office of the Clerk of Court, Post Trial Handbook (3 Jan. 2012).

II. Summary of the Process

The MJA 2016 made substantial and important changes to post trial processing.  This portion of the deskbook will retain the information related to the legacy system for two reasons. One, until there has been substantial appellate review of the new system, it is difficult to know whether and what portions of the old system concerns and caselaw will remain relevant. Two, albeit increasingly rare, we will continue processing cases using the legacy system. According to Executive Order (EO) 13825 signed in March 2018, all cases referred prior to 1 January 2019 will use legacy post-trial processing procedures regardless of when the case is tried and ready for post-trial action.  However, any case referred after 1 January will use the new post-trial processing procedures.  See EO 13825.

“It is at the level of the convening authority that an accused has his best opportunity for relief.”  United States v. Boatner, 43 C.M.R. 216, 217 (C.M.A. 1971).

“The essence of post-trial practice is basic fair play – notice and an opportunity to respond.”  United States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996).

“[T]he following is [the] process for resolving claims of error connected with a convening authority’s post-trial review.  First, an appellant must allege the error. . . .  Second, an appellant must allege prejudice. . . .  Third, an appellant must show what he would do to resolve the error if given such an opportunity.”  United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998).

“All this court can do to ensure that the law is being followed and that military members are not being prejudiced is to send these cases back for someone TO GET THEM RIGHT.”  United States v. Johnston, 51 M.J. 227, 230 (C.A.A.F. 1999).

Below is a summary of the legacy system:

A. Sentence is announced and the court is adjourned.

B. Trial counsel prepares report of result of trial, confinement order.

C. Post-trial sessions, if any.

D. Exhibits accounted for and reproduced.

E. Request for deferment of confinement, if any.

F. Request for deferment of reduction, if any.

G. Request for deferment and/or waiver of forfeitures, if any.

H. Record of trial (ROT) created, reproduced.

I. Trial counsel / defense counsel (DC) review ROT for errata.

J. Military judge (MJ) authenticates ROT (or substitute authentication if required).

K. Staff Judge Advocate (SJA) signs the Staff Judge Advocate’s Recommendation (SJAR).

L. SJAR and authenticated ROT served on accused / DC and, if required, the victim.

M. Victim submits matters through SJA to CA.

N. Accused / DC submits clemency petition (R.C.M. 1105 matters) and response to SJAR (R.C.M. 1106 matters) – often done simultaneously.

O. SJA signs addendum.

P. Addendum served on DC and accused if contains “new matter.”

Q. CA considers DC / accused submissions, takes initial action.

R. Promulgating order signed.

S. Record reproduced and mailed.

T. Appellate review.

U. Final action.

Below is a summary of the new system (some items reflect Interim AR 27-10):

A. Sentence is announced and the court is adjourned.

B. Trial counsel prepares statement of trial results.

C. Assembly of the court-martial record for clemency purposes; verbatim transcript preparation begins (if required).

D. Post-trial sessions, if any, at any point prior to Entry of Judgment (EOJ).

E. DC requests for deferment and/or waiver.

F. Accused and qualifying victims submit post-trial matters (within 10 days of announcement of sentence; may be extended for an additional 20 days).

G. CA consults with the SJA, considers the accused and victim submissions, and takes action.

H. Military Judge signs the EOJ.

I. Court reporter certifies the Record of Trial; it is served on the accused and qualifying victims.

J. Applicable portions of the record are uploaded to the Army Court-Martial Public Records System.

K. Appellate review.

The above is a simplified version of the new system. However, the intent of the MJRG (report referenced above) was to streamline the process. In an era where CA discretion on findings and sentence has been vastly circumscribed, it may be sensible to expedite the post-trial process prior to appellate review. Although Congress did not wholesale adopt the MJRG’s recommendations, the report is still useful for an understanding of the why and how for many of the changes.

For many of these changes, Interim AR 27-10 will fill in the gaps on how to proceed under the new rules. Also, new forms have been issued in support of the new processes.

III. Duties of Counsel.  Article 38, UCMJ; R.C.M. 502(d)(5)-(6); R.C.M. 1103(b)(1).  While the rules have changed, the substance of the underlying case law may not substantially change related to the duties of counsel during post-trial.

A. [Legacy] R.C.M. 502(d)(5), discussion, para. (F), addresses the trial counsel’s (TC’s) post-trial duties.

1. Prepare Report of Result of Trial. “[P]romptly provide written notice of the findings and sentence adjudged to the convening authority or a designee, the accused’s immediate commander, and (if applicable) the officer in charge of the confinement facility.”

2. Supervise preparation, authentication and distribution of the ROT.  R.C.M. 1103(b)(1).

3. Review ROT for errata.  United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000).  On appeal, appellant alleged that the ROT was not truly authenticated since the assistant trial counsel (ATC) executed the authentication.  The ATC signed the authentication document that stated, “I have examined the record of trial in the forgoing case.”  The ATC also made several corrections to the ROT.  The defense claimed that for the authentication to be proper, the authenticating individual must state the ROT accurately reports the proceedings.  Also, defense claimed that an ATC cannot authenticate a ROT unless he is under the supervision of the TC (as required by R.C.M. 502(d)(2)).  The court disagreed, holding that by signing the authentication document, the ATC was stating that the ROT was correct.  Also, since the defense did not allege any error in the ROT, or prejudice from having the ATC authenticate the ROT, no relief was appropriate.

4. Ensure the record of trial is served on the accused and counsel, as appropriate. R.C.M. 1104(b)(1), 1106(f)(3).  See generally R.C.M. 502(d)(5), discussion, para. (F).

B. [Legacy] R.C.M. 502(d)(6), discussion, para. (E) addresses the defense counsel’s (DC’s) post-trial duties.

1. Advise the accused of post-trial and appellate rights (not technically post-trial – R.C.M. 1010).

2. Deferment of confinement / reduction / forfeitures.  R.C.M. 1101(c).

3. Examination of the record of trial.  R.C.M. 1103(i)(1)(B).

4. Submission of matters:  R.C.M. 1105; 1106(f)(4), (7); and, 1112(d)(2).  See also UCMJ, Article 38(c).

5. Right to appellate review and waiver thereof, in writing, within specified time period.  R.C.M. 1110.

6. Examine Staff Judge Advocate’s Recommendation (SJAR).  R.C.M. 1106(f).

7. See also United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977).  “The trial defense attorney . . . should maintain the attorney-client relationship with his client subsequent to the [trial] . . . until substitute trial [defense] counsel or appellate counsel have been properly designated and have commenced the performance of their duties . . . .”

a) Raising appellate issues.  United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

b) Act in accused’s interest.  See United States v. Martinez, 31 M.J. 524 (A.C.M.R. 1990).

c) Maintain an attorney-client relationship.  R.C.M. 1106(f)(2) (for substitute counsel); United States v. Schreck, 10 M.J. 226 (C.M.A. 1981), supplemented by, 10 M.J. 374 (C.M.A. 1981); United States v. Titsworth, 13 M.J. 147 (C.M.A. 1982); United States v. Jackson, 34 M.J. 783 (A.C.M.R. 1992) (some responsibility placed on the SJA).

C. Effectiveness of counsel in the post-trial area is governed by Strickland v. Washington, 466 U.S. 668 (1984), and United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995).  See also United States v. MacCulloch, 40 M.J. 236 (C.M.A. 1994); United States v. Brownfield, 52 M.J. 40 (C.A.A.F. 1999); and, United States v. Lee, 52 M.J. 51 (C.A.A.F. 1999).  See also Section XXVIII infra. 

1. United States v. Banks, 75 M.J. 746 (Army Ct. Crim. App. 2016).  Citing to United States v. Palmer, 2007 CCA LEXIS 592 (Army Ct. Crim. App. Aug. 7, 2007), the court implied that defense counsel who fail to timely submit R.C.M. 1105 matters could be considered ineffective. This could become even more problematic with the changes to the timeline for post-trial submissions under the MJA 2016.

2. United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001).  Defense counsel ineffective by submitting, as part of the accused’s clemency matters, a letter from the accused’s mother that “undercut [his] plea for clemency,” a separate letter from the father that was “acerbic” and a “scathing diatribe directed toward trial counsel, trial defense counsel, the members, the judge, and the convening authority,” and an e-mail from the accused’s brother that “echoed the theme of appellant’s father.”  Id. at 124.  Returned for a new clemency submission, PTR, and action.

3. United States v. Key, 57 M.J. 246 (C.A.A.F. 2002).  The CAAF, without ruling, hints that defense counsel might be ineffective if counsel fails to advise the client on waiver of forfeitures and the right to request waiver.  The CAAF avoids the issue in Key because appellant could not recall if his counsel advised him.  Appellant’s equivocal statement re: his recollection was insufficient to overcome the presumption that counsel’s performance was competent.

4. United States v. Gunderman, 67 M.J. 683 (A.C.C.A. 2009).  The appellant claimed that his defense counsel did not inform him that he could request disapproval of the adjudged forfeitures, deferral under Article 57, and waiver of automatic forfeitures under Article 58b.  Based upon the facts, the court finds that there was sufficient advice given about forfeitures and the ability to request waiver and deferral after trial.  Three factors weighed in favor of the decision:  1) the appellant signed a post-trial advice form that informed him of his ability to request waiver and deferral; 2) the appellant agreed on the record that he had been properly informed of his post-trial rights; and, 3) the appellant submitted a letter to the convening authority pursuant to R.C.M. 1105 void of any indication that he wanted deferral or waiver. 

5. United States v. Fordyce, 69 M.J. 501 (A.C.C.A. 2010) (en banc).  The ACCA did not reach the issue of whether defense counsel was ineffective for submitting clemency matters to the convening authority without the input from appellant and for failing to submit a request to defer and waive forfeitures for the benefit of the accused’s wife and five children.  However, the ACCA held that appellant made the requisite showing of prejudice because defense counsel admitted she did not cover waiver since the standardized post-trial and appellate rights form she had used did not include that provision.  Case remanded for new SJAR and action.  The ACCA also recommends two things:

a) Defense counsel should have an accused co-sign R.C.M. 1105/1106 submissions, or sign an acknowledgement that the matters submitted are all that the accused wishes to submit; and,

b) A practice that would demonstrate on the record that the appellant received both proper written advice on post-trial rights and the opportunity to submit post-trial matters to the convening authority.  The ACCA notes with approval the amendments to the Military Judges’ Benchbook, DA Pam 27-9, paras. 2-4-2 and 2-6-14 (1 Jan. 2010), which includes in inquiry into the accused’s knowledge of what he can submit to the convening authority.

IV. Notice Concerning Post-Trial and Appellate Rights.  R.C.M. 1010

A. Before adjournment of any general and special court-martial, the MJ shall ensure that the DC has informed the accused orally and in writing of:

1. The right to submit post-trial matters to the CA; 

2. The right to appellate review, as applicable, and the effect of waiver or withdrawal of such rights;

3. The right to apply for relief from TJAG if the case is neither reviewed by a Court of Criminal Appeals; and,

4. The right to the advice and assistance of counsel in the exercise or waiver of the foregoing rights.

V. Report of Result of Trial; Deferment and Waiver.  Articles 57, 57a, 58, 58a, 58b, and 60, UCMJ; R.C.M. 1101.  

A. [Legacy] Result of Trial and Post-Trial Restraint.

1. TC notifies accused’s immediate commander, CA or designee, and confinement facility of results (DA Form 4430, Department of the Army Report of Result of Trial).  See R.C.M. 502(d)(5).  See also AR 27-10, para. 5-30 (11 May 2016).

2. The accused’s commander may order the accused into post-trial confinement.  The accused’s commander may delegate to TC authority to order accused into post-trial confinement.  R.C.M. 1101(b)(2).  Note:  Summary Court Martial Officer (SCMO) may NOT order a Servicemember into post-trial confinement.

B. Deferment of confinement.  This has not changed under the MJA 2016. The Rule citations below are to the MJA 2016. While there is currently no authority adopting the previous case law in this area, it appears likely to remain applicable.

1. Accused may request, in writing, deferment of confinement.

2. Accused burden to show “the interests of the accused and the community in deferral outweigh the community’s interest in imposition of the punishment on its effective date.”

3. Factors CA may consider include, “where applicable:  the probability of the accused’s flight; the probability of the accused’s commission of other offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses (including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command’s immediate need for the accused; the effect of deferment on good order and discipline in the command; [and] the accused’s character, mental condition, family situation, and service record.”  R.C.M. 1101(d)(2). 

4. CA’s action on deferment request MUST be in writing and a copy provided to the accused.

5. CA’s written action on deferment request is subject to judicial review for abuse of discretion. The request and action thereon MUST be attached to the record of trial.  R.C.M. 1103(d)(2).

6. CA must specify why confinement is not deferred.

a) United States v. Schneider, 38 M.J. 387 (C.M.A. 1993).  The CA refused to defer confinement “based on seriousness of the offenses of which accused stands convicted, amount of confinement imposed by the court-martial and the attendant risk of flight, and the adverse effect which such deferment would have on good order and discipline in the command.”  Accused alleged abuse of discretion in refusing to defer confinement.  Held – even though explanation was conclusory, it was sufficient.  The court noted other matters of record supporting decision to deny deferment.

b) United States v. Dunlap, 39 M.J. 1120 (A.C.M.R. 1994).  Remedy for failure to state reasons for denying deferment request is petition for extraordinary relief.  The court reviewed facts and determined that deferment was not appropriate.

c) United States v. Edwards, 39 M.J. 528 (A.F.C.M.R. 1994).  Accused not entitled to relief where deferment would have expired before appellate review.  The court recommended that the DC ask for “statement of reasons” or petition for redress under Article 138.

d) United States v. Sebastian, 55 M.J. 661 (A.C.C.A. 2001).  One week prior to his trial, accused submitted a deferment request requesting that any confinement be deferred until after the upcoming Easter holiday.  He also asked for deferral and waiver of forfeitures.  The CA never acted on first request.  One week after trial (which included confinement as part of the adjudged sentence), the accused submitted a second request regarding forfeitures.  Approximately six weeks later (five weeks after the forfeitures went into effect), the SJA responded recommending disapproval.  Contrary to the SJA’s advice, the CA granted the forfeitures request.  “While there is no requirement for a convening authority to act ‘instantaneously’ on a deferment request, there is also no authority for a convening authority to fail to act at all when a deferment request is submitted in a timely manner.”  Id. at 663.  The court found prejudice both in the failure to respond to the first deferment request and in the untimely response to the second request.  The court reduced the accused’s confinement from nine months to five months and set aside the adjudged forfeitures.

e) United States v. McClary, 68 M.J. 606 (C.G.C.C.A. 2010).  At the end of trial, the appellant submitted a request to the convening authority requesting deferment of confinement “until at least” four days after trial.  The convening authority responded the same day by writing, “Considered and denied.”  Forty days later, the convening authority signed a memorandum to the appellant providing his reasons for the denial.  The appellant alleged error for failure to provide the rationale at the time of denial.  The CGCCA agreed, and held that “[c]ertainly there was error at the time of denial.”  However, even though the court found error, the court was not able to provide relief since the rationale had eventually been provided.  The court denied relief.

C. Deferment of forfeitures. The substance of these rules did not change under the MJA 2016. The Rule citations below are to the MJA 2016. While there is currently no authority adopting the previous case law in this area, it appears likely to remain applicable.

1. Accused may request, in writing, deferment of forfeitures.  R.C.M. 1101(a)(2).

2. Accused burden to show “the interests of the accused and the community in deferral outweigh the community’s interest in imposition of the punishment on its effective date [e.g., forfeitures].”  R.C.M. 1101(d)(2).

3. Applies to adjudged forfeitures (Article 57(a)(2), UCMJ; R.C.M. 1101(c)) AND automatic forfeitures(Article 58b(a)(1), UCMJ)).  United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004); United States v. Adney, 61 M.J. 554 (A.C.C.A. 2005).

4. Factors CA may consider include, “where applicable: the probability of the accused’s flight; the probability of the accused’s commission of other offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses (including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command’s immediate need for the accused; the effect of deferment on good order and discipline in the command; [and] the accused’s character, mental condition, family situation, and service record.”  R.C.M. 1101(d)(2).

5. CA’s action on deferment request MUST be in writing and a copy provided to the accused.  R.C.M. 1101(d)(2).

6. CA’s written action on deferment request is subject to judicial review for abuse of discretion. The request and action thereon MUST be attached to the record of trial.  R.C.M. 1103(d)(2).

7. CA must specify why forfeitures are not deferred.  United States v. Zimmer, 56 M.J. 869 (A.C.C.A. 2002).  Error for the CA to deny the defense deferment request in a one-sentence action without providing reasons for the denial.  Four months of confinement and the adjudged forfeitures were set aside.  See also United States v. Sloan, 35 M.J. 4 (C.M.A. 1992).   

8. United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000).  CA denied accused’s deferment request.  The SJA memorandum to CA recommending denial was never served on the accused who argued prejudice because he was not afforded the opportunity to rebut the memorandum.  The CAAF found no prejudice; however, they strongly suggested that new rules be created regarding deferment and waiver requests – rules could require an SJA recommendation with deferment and waiver requests with a corresponding notice and opportunity to respond provision.

9. United States v. Key, 55 M.J. 537 (A.F.C.C.A. 2001), aff’d, 57 M.J. 246 (C.A.A.F. 2002).  Nine days after being sentenced, the accused submitted a request asking for deferment of forfeitures and reduction.  The SJA’s written response recommended disapproval, advice the CA followed.  The SJA’s advice was never served on the accused.  He argued prejudice claiming deferment requests should be processed like a clemency request.  Although the Air Force requires that waiver requests be treated like clemency requests (United States v. Spears, 48 M.J. 768 (A.F.C.C.A. 1998) (overruled in part on other grounds)) subject to the requirements of Article 60, deferment of forfeitures and reductions in rank do not have to be treated similarly.  No requirement that an SJA recommendation regarding deferment be served on defense.  Note:  the CAAF affirmed without reaching the issue of whether service of the SJA’s memo is a per se requirement.  The court noted the absence of “new matter” and the non-inflammatory nature of the SJA’s memo in affirming.

10. United States v. Moralez, 65 M.J. 665 (A.C.C.A. 2007).  Forfeitures were adjudged at trial.  After trial, the accused submitted request to the CA to (1) defer adjudged and automatic forfeitures until action, and (2) disapprove adjudged forfeitures and waive automatic forfeitures at action.  The SJA advised the CA to grant the deferrals, but postpone any decision on disapproval or waiver until action.  The SJAR, the defense clemency submission, and the addendum were silent to the requested disapproval/waiver request.  At action, the CA approved the adjudged sentence (including forfeitures).  The ACCA held that SJA should have further advised the CA on his options regarding the disapproval of adjudged and waiver of automatic forfeitures at action. 

11. United States v. Dean, 74 M.J. 608 (A.C.C.A. 2015) Accused sentenced to BCD and 7 months confinement on 15 Jan 2014; ETS date was 11 Feb 2014.  Request for deferral submitted on 5 Mar 2014. Addendum was silent on deferral advice, no other advice submitted.  ACCA says this is error, requires rationale from CA for both adjudged and automatic sentences.

D. Waiver of forfeitures. The substance of these rules did not change under the MJA 2016. The Rule citations below are to the MJA 2016. While there is currently no authority adopting the previous case law in this area, it appears likely to remain applicable.

1. Accused may request waiver of automatic forfeitures (Article 58b, UCMJ) or the CA may waive sua sponte.  The accused’s request should be in writing.

2. Waiver is allowed for a period not to exceed six months and is for the purpose of providing support to the accused’s dependents, as defined in 37 U.S.C. § 401.

3. Factors CA may consider include:  “the length of the accused’s confinement, the number and age(s) of the accused’s family members, whether the accused requested waiver, any debts owed by the accused, the ability of the accused’s family members to find employment, and the availability of transitional compensation for abused dependents permitted under 10 U.S.C. 1059.”  R.C.M. 1101(d)(2). 

4. Unlike the CA’s action on a deferral of forfeitures, there is no requirement that a similar decision on waiver of forfeitures be in writing or that it be served on the accused.  United States v. Zimmer, 56 M.J. 869, 872 n.4 (A.C.C.A. 2002).  According to Zimmer, such a decision is also not subject to judicial review.  Id.

5. Waiver of forfeitures is authorized as soon as they become effective; need not wait until action.

6. United States v. Nicholson, 55 M.J. 551 (A.C.C.A. 2001).  SJA advice stating that waiver request prior to action is premature and must be submitted as part of the R.C.M. 1105 submissions was incorrect.  The convening authority may waive and direct payment of any automatic forfeitures when they become effective by operation of Article 57(a) – the earlier of fourteen days after sentence is adjudged or date the sentence is approved by the CA.  See also United States v. Kolodjay, 53 M.J. 732 (A.C.C.A. 1999) (noting that the CA’s action apparently would not achieve his objective of a six month waiver because the waiver dated back to the date the sentence was adjudged rather than fourteen days thereafter; a waiver is valid only when there are forfeitures to waive).

E. Deferment of reduction in rank. This is one area that remains unsettled at the moment under the MJA 2016. The original revised version of Art. 58a would have made reduction to E-1 automatic with a sentence that included ANY confinement (as opposed to the former requirement for 6 months where there was no punitive discharge and/or hard labor without confinement).  The updated version of Art. 58a from the FY18 NDAA allows the president to promulgate regulations governing automatic reductions. However, the current Rules do not appear to authorize automatic reductions.  The pending EO will also resolve the inconsistency between effective dates in the Article versus the current R.C.M.  Any automatic reductions will be effective at EOJ.  See Interim 27-10, para. 5-37.

VI. Post-Trial Sessions.  Article 39, UCMJ; R.C.M. 905, 1102/R.C.M. 1104

A. One of the most important changes to post-trial sessions under the MJA 2016 ws the removal of authority from the CA to order post-trial Art. 39(a) sessions. Only the MJ has that authority.  He or she will be able to do so any time prior to EOJ. There is no substantial change to the standards and or matters subject to a post-trial Art. 39(a) session. Proceedings in revision no longer appear in any of the Rules.

B. [Legacy] Types of post-trial sessions.

1. Proceedings in revision.  “[T]o correct an apparent error, omission, or improper or inconsistent action by the court-martial which can be rectified by reopening the proceeding without material prejudice to the accused.”  R.C.M. 1102(b)(1).

2. Article 39(a) sessions.  “[To inquire] into, and, when appropriate, [resolve] any matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence.  The military judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty or the sentence.”  R.C.M. 1102(b)(2).  “The military judge shall take such action as may be appropriate, including appropriate instructions when members are present.  The members may deliberate in closed session, if necessary, to determine what corrective action, if any, to take.”  R.C.M. 1102(e)(2); United States v. Jackson, 34 M.J. 1145 (A.C.M.R. 1992).

C. [Legacy] Timing.

1. The MJ may call a post-trial session before the record is authenticated. The CA may direct a post-trial session any time before taking initial action or at such later time as the convening authority is authorized to do so by a reviewing authority, except that no proceeding in revision may be held when any part of the sentence has been ordered executed.  R.C.M. 1102(d).  

2. United States v. Scaff, 29 M.J. 60, 65 (C.M.A. 1989).  Until MJ authenticates the ROT, MJ may conduct a post-trial session to consider newly discovered evidence, and in proper cases, may set aside findings of guilty and the sentence.

3. MJ need not wait for guidance or directive from reviewing authority or CA.  “The military judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty or the sentence.”  R.C.M. 1102(b)(2).

D. [Legacy] Format.  Rule essentially adopts the DuBay “hearing” concept but it expands the jurisdiction of the MJ into post-trial proceedings.  Article 39(a) requires that “these proceedings shall be conducted in the presence of the accused.”  See also United States v. Caruth, 6 M.J. 184 (C.M.A. 1979) (holding that a post-action hearing held in accused’s absence found “improper and . . . not a part of the record of trial”).

E. [Legacy] Limitations.  R.C.M. 1102(c).  See United States v. Boland, 22 M.J. 886 (A.C.M.R. 1986).  Post-trial sessions cannot: 

1. Reconsider a finding of not guilty as to a specification, or a ruling which amounts to a finding of not guilty.

2. Reconsider a finding of not guilty as to a charge unless a finding of guilty to some other Article is supported by a finding as to a specification.

3. Increase the severity of a sentence unless the sentence is mandatory. 

F. Cases.

1. United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008).  Prior to authentication of the record of trial the defense moved for a new trial based upon the government’s failure to disclose impeachment evidence of one of the government’s key witness.  The judge granted a new trial and on appeal, the government argued that Article 73 and R.C.M. 1210 only allowed new trial petitions after the CA’s action.  The CAAF agreed that Article 73 does not allow a military judge to order a new trial – but Article 39(a) does.  The CAAF declared unequivocally that military judges have authority under Article 39(a) to convene post-trial sessions to consider newly discovered evidence and to take whatever remedial action the military judge finds appropriate (to include a new trial).

2. United States v. Meghdadi, 60 M.J. 438 (C.A.A.F. 2005).  After trial, appellant requested an Article 39(a) session seeking to inquiry into alleged witness misconduct, or, alternatively, a mistrial or a new trial.  A different military judge than who presided over the trial heard evidence at the post-trial session and denied the motion.  The defense based its motion on allegations that the primary CID investigator lied at trial when he testified that:  he had not promised the informant who testified against the appellant that the informant would not go to jail if he helped CID; that he had not told the informant that CID would assist him with his case if the informant went to work for CID; and, that he had not met with the informant after CID terminated the informant as a registered source.  An audio tape surreptitiously recorded by the informant in a conversation with the agent shed light on each of these allegations.  The CAAF noted that the MJ failed to recognize the purpose of the requested inquiry, which was to examine the request for a mistrial or a new trial, rather than to establish a basis for correction or discipline of the witnesses themselves.  The CAAF also criticized the findings made by the MJ.  With respect to the evidentiary value of the tape, which the MJ discounted, the CAAF held that the appellant “firmly established” the potential impeachment value of the tape.  The CAAF noted that the MJ denied himself the opportunity for meaningful assessment of whether the investigator’s trial testimony was perjured, and if so, whether the effect of the perjury substantially contributed to the sentence.

3. United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002).  Post-trial 39(a) session held by MJ to question two panel members about a rater-ratee relationship that they failed to disclose during voir dire.  After making extensive findings of facts and conclusions of law, the MJ indicated he would not have granted a challenge for cause based on the relationship had it been disclosed.  Petition for a new trial denied.  The CAAF noted the following regarding the MJ’s post-trial responsibilities:

The post-trial process empowers the military judge to investigate and resolve allegations, such as those in this case, by interviewing the challenged panel members. It allows the judge to accomplish this task while the details of trial are still fresh in the minds of all participants. The judge is able to assess firsthand the demeanor of the panel members as they respond to questioning from the bench and counsel.

Id. at 96.

4. United States v. Jones, 46 M.J. 815 (N-M.C.C.A. 1997).  In mixed-plea case, MJ failed to announce findings of guilty of offenses to which accused had pled guilty, and as to which MJ had conducted providence inquiry.  Upon realizing failure to enter findings, MJ convened post-trial Article 39(a) hearing and entered findings consistent with pleas of accused.  Though technically a violation of R.C.M. 922(a), MJ commended for using post-trial session to remedy oversight.

5. United States v. Perkins, 56 M.J. 825 (A.C.C.A. 2001).  MJ’s failure to properly announce guilty finding as to Spec 3 of Charge II (MJ announced Guilty to Spec 3 of Charge III) did not require court to set aside appellant’s conviction of Specification 3 of Charge II when it was apparent from the record that the MJ merely misspoke and appellant had actually plead guilty to Specification 3 of Charge II.  The court notes that a proceeding in revision UP of R.C.M. 1102 would have been an appropriate course of action had the MJ or SJA caught the mistake.

6. United States v. Kulathungam, 54 M.J. 386 (C.A.A.F. 2001).  Proceeding in revision to correct erroneous omission of findings from the record and to formally announce findings was appropriate.  Omission was the only procedural deviation by the MJ during the court-martial.  Note:  upon discovery of the omission, the TC and court reporter “inserted” the findings in the record.  DC was aware of the omission during trial but for tactical reasons chose to remain silent.  On appeal, the CAAF advised counsel, in the future, to seek the advice of the MJ or a more senior counsel to avoid the “train wreck” that occurred in that case.

7. United States v. Mayfield, 45 M.J. 176 (C.A.A.F. 1996).  Accused’s written judge alone (JA) request never signed by parties and made part of the record.  Additionally, no timely oral request for judge alone was made on the record.  Before authentication, MJ realized omission and called a post-trial Article 39(a), during which accused acknowledged he had made request in writing and that JA trial had been his intent all along.  The CAAF reversed the NMCCA, which had found the failure to formally request JA to be a jurisdictional error.

8. United States v. Avery, No. 9500062 (A.C.C.A. May 17, 1996) (unpublished).  Post-trial 39(a) session held to inquire into allegations that a sergeant major (SGM) slept through part of the trial.  Testimony of MAJ H, panel president, about “SGM A’s participation during deliberations . . . was relevant and admissible.”  MJ “properly stopped appellant’s trial defense counsel from asking MAJ H about any opinions expressed by SGM A during deliberations.”

9. United States v. Gleason, 43 M.J. 69 (C.A.A.F. 1995).  Proceeding in revision is inappropriate to correct erroneous sentencing instruction.  Proper procedure is a rehearing.  Article 63 prohibits members who sat in original proceeding from sitting on a rehearing.  No such prohibition exists for a proceeding in revision.  There is no problem in having the same members for a proceeding in revision.  See also United States v. Roman, 46 C.M.R 78, 81 (C.M.A. 1972).

10. United States v. Crowell, 21 M.J. 760 (N.M.C.M.R. 1985).  Post-trial 39(a) appropriate procedure to repeat proceedings to reconstruct portions of a record of trial resulting from loss of recordings.

11. United States v. Jordan, 32 M.J. 672 (A.F.C.M.R. 1991).  MJ erred in entering findings of guilty on two specifications.  After authentication he noticed error and notified SJA, who advised CA to only approve proper findings, but to approve sentence as adjudged.  “If the error were detected before authentication, the better method of handling this type of error would have been for the military judge to direct a post-trial session under R.C.M. 1102(d).”  Such a post-trial session could have been used to reconsider the erroneous findings of guilty and re-determine the sentence.  See R.C.M. 1102(b), (c), and (e).  As requested by the trial defense counsel, the CA could have also ordered a rehearing on sentence and avoided this issue.  See R.C.M. 1107(e)(1).”  Id. at 673-4 n.1.

12. United States v. Wallace, 28 M.J. 640 (A.F.C.M.R. 1989).  MJ became aware of possible extraneous information received by the panel on the “ease of converting a BCD to a general discharge.”  MJ had an obligation to sua sponte convene a post-trial Article 39(a) session to assess facts and determine any possible prejudice.  Findings affirmed; sentence set aside and rehearing authorized.

13. United States v. Wilson, 27 M.J. 555 (C.M.A. 1988).  TC failed to administer oath to two enlisted panel members.  MJ held a proceeding in revision to correct the “substantial omission, to wit:  a sentence and a sentencing proceeding.”  Ministerial act of swearing court members is essential to legal efficacy of proceedings but not a matter affecting jurisdiction.

14. United States v. Baker, 32 M.J. 290 (C.M.A. 1991).  MJ held a post-trial Article 39(a) session to correct the omission in sentence announcement (the president of the panel failed to announce the adjudged DD).  Held – Error; presents the appearance of UCI.  See also United States v. Dodd, 46 M.J. 864 (A.C.C.A. 1997) (holding that it was error for court to re-convene two minutes after adjourned to state they had also adjudged a bad-conduct discharge).

15. United States v. Jones, 34 M.J. 270 (C.M.A. 1992).  MJ held proceeding in revision two months after adjournment to correct “erroneous announcement of sentence” (failure to announce confinement).  Held – Error.  “Article 69(e)(2)(c) disallows such corrective action, to assure the integrity of the military justice system.”  Id. at 271.

16. United States v. Jackson, 34 M.J. 1145 (A.C.M.R. 1992).  MJ held post-trial Article 39(a) session one month after adjournment, declared mistrial as to sentence based on procedural error (court members used improper voting procedures), and ordered new session with same members.  Held – post-trial session was actually a proceeding in revision, and since the error was substantive, was inappropriate; even if not error, inappropriate to use same sentencing authority.  See also United States v. Roman, 46 C.M.R 78, 81 (C.M.A. 1972).

17. United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).  MJ abused his discretion when he denied the accused’s request for delay of a post-trial Article 39(a) session in order to obtain civilian defense counsel.  MJ was more concerned with expediency and convenience to government than protecting rights of the accused.

18. United States v. Carr, 18 M.J. 297 (C.M.A. 1984).  Unlawful command control for president to order a re-vote after a finding of not guilty had been reached.  MJ should build a factual record at a post-trial Article 39(a) session.

19. United States v. Steck, 10 M.J. 412 (C.M.A. 1981).  Proceeding in revision, directed by CA, appropriate to conduct a more thorough inquiry into the terms of the pretrial agreement and accused’s understanding thereof.

20. United States v. LePage, 59 M.J. 659 (N-M.C.C.A. 2003).  MJ erroneously admitted NJP record and considered evidence in arriving at a punitive discharge.  At a post-trial Article 39(a) session, the MJ held that he erred and that the error prejudiced appellant. He further held, erroneously, that he lacked authority to correct the defect, citing to R.C.M. 1009, which addresses reconsideration of sentences.  Held – MJ could have corrected the error under R.C.M. 1102 at a post-trial Article 39(a) session since the erroneous admission of the evidence “substantially affect[ed] the sufficiency of the sentence.”

21. United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011).  A convening authority abused his discretion in denying a request for a post-trial Article 39(a) session after an email surfaced from an Air Force victim advocate claiming witnesses were texting each other the contents of testimony from the courtroom.  However, the court addressed the testimony of the witnesses and found that there was no “basis for concluding that shaping of testimony or collusion occurred,” and that the appellant was not prejudiced as a result.

22. MJ may, any time until authentication, “reconsider any ruling other than one amounting to a finding of not guilty.”  R.C.M. 905(f).

VII. Preparation of Record of Trial.  Article 54, UCMJ; R.C.M. 1103; MCM, Appendix 13 and 14/ R.C.M. 1112 and R.C.M. 1114

A. Under the MJA 2016, the number of cases which require verbatim transcripts may increase. However, the ROT is no longer a trigger for the timeline to submit post trial matters by the accused or crime victim. There are currently no cases which have challenged the new procedures regarding construction of a ROT.  However, some case law related to the effect of omissions of portions of a verbatim transcript may still be applicable.

B. [Legacy] R.C.M. 1103(b)(2)(B).  In a GCM, TC shall, under the direction of the MJ, cause the ROT to be prepared and the reporters’ notes, however compiled, to be retained. The ROT must be verbatim if:

1. Any part of the sentence exceeds six months confinement, forfeiture of pay greater than two-thirds pay per month, any forfeiture of pay for more than six months, or other punishments which may be adjudged by a SPCM; or a punitive discharge was adjudged. 

2. United States v. Embry, 60 M.J. 976 (A.C.C.A. 2005).  Appellant spoke with social work assistant prior to trial.  The intake notes of that assistant were litigated before trial.  The intake notes were not marked or attached to the record as an appellate exhibit.  The notes could not be located when asked for by the ACCA.  The court determined that the MJ erred in not marking and attaching the intake notes to the record.  Because the MJ considered them, the notes must be included in the ROT to effect appellate review of a ruling affecting the rights of the accused at trial.  The court found that the government failed to rebut the presumption of prejudice arising from the incomplete ROT.

3. United States v. Madigan, 54 M.J. 518 (N-M.C.C.A. 2000).  Appellant asserted (among other allegations of error) that the ROT was incomplete because the Article 32 investigation was not included and the Article 34 SJA advice was also missing.  Both allegations were without merit. The appellant waived his allegation of error regarding the Article 34 advice because no objection had been made, before, during or after trial.  Also, the appellant alleged no prejudice from this error.  The Article 32 was missing because the appellant had pled guilty and waived the Article 32 investigation.

4. United States v. Gaskins, 69 M.J. 569 (A.C.C.A. 2010) (en banc).  During sentencing, the appellant admitted into evidence his “Good Soldier Book,” which allegedly contained “a compilation of . . . awards, certificates, letters of commendation and character letters from family and friends, as well as a number of photographs.”  The exhibit was not included in the record of trial.  The trial defense counsel noted this omission in the post-trial submissions.  The SJAR addendum responded to this by stating that the exhibit “could not be located.”  The SJA provided a memorandum describing the exhibit, written by the senior court reporter (not the court reporter that sat in on appellant’s trial).  The SJA also provided the appellant’s Official Military Personnel File (OMPF) for the convening authority to review.  The post-trial submissions from the defense included twenty-one letters of support.  The adjudged sentence was approved.  In this case, the ACCA held that, despite the efforts to include a substitute memorandum, there is still an omission from the record of trial.  However, the court was unable to determine whether or not this omission is substantial or not.  The description provided by the government did not include “adequate detail” for the court to analyze whether or not it was a substantial omission.  The court then turned to the three options available and found that approving a sentence below the threshold for a verbatim record (like the dissent encourages), would be a particularly harsh remedy “[i]n light of the seriousness of appellant’s offenses, the substantial sentence he received, and the fact that the omission in this case relates only to sentencing” rather than guilt.  Over a rigorous dissent, the court sent the case back for a DuBay hearing to determine the contents of the exhibit, and any prejudice.  The CAAF granted an extraordinary writ of prohibition to prevent this DuBay hearing and sent the case back to the ACCA.  See Gaskins v. Hoffman, Conn, Johnson, Cook, Baime, and United States Army, Misc. No. 11-8004, 69 M.J. 452 (C.A.A.F. Dec. 9, 2010).

a) United States v. Gaskins, No. 20080132, 2011 WL 498371 (A.C.C.A. Feb. 10, 2011) (unpublished) (en banc).  On remand, the majority opinion at the ACCA affirmed the findings and remanded the case for a sentencing rehearing. The opinion is terse, less than a page of text.  Six judges were in the majority opinion (J. Hoffman, S.J. Conn, S.J. Johnson, J. Gallagher, J. Baime, and J. Burton).  Four of the judges from the original opinion are still in the majority, while Judge Cook has since left the court.  Two new judges, J. Gallagher and J. Burton, joined the majority for this opinion.  There were two separate opinions that concurred in part and dissented in part.  Both of these opinions agreed with the majority that the findings were unaffected by the missing sentencing exhibit.  However, both would approve a nonverbatim record of trial punishment.  J. Gifford also wrote to state that a rehearing is inappropriate because it “unfairly places the onus on appellant to present a sentencing case.”

b) The CAAF granted a petition to stay this rehearing.  See Gaskins v. Hoffman, Conn, Johnson, Gallagher, Baime, and Burton, Misc. No. 11-8017, 70 M.J. 37 (C.A.A.F. Mar. 31, 2011).

c) Two months later, the CAAF reversed their decision and denied the petition, paving the way for the sentencing rehearing to take place.  See Gaskins v. Colonel John B. Hoffman, USA, et al., Misc. No. 11-8017, 70 M.J. 207 (C.A.A.F. June 1, 2011).

d) ACCA then affirmed the sentence adjudged at the rehearing of 9 years confinement which the CA had approved.  2012 CCA LEXIS 255 (July 12, 2012).

e) CAAF granted relief on a separate issue in 2013 and returned the case to ACCA which approved a sentence of 8.5 years.  2013 CCA LEXIS 564 (July 22, 2013).

C. [Legacy] R.C.M. 1103 and the discussion list what must be included in or attached to the ROT.  The rule is supplemented by AR 27-10.

D. [Legacy] Acquittals still need a ROT (summarized).

E. [Legacy] If an Article 39(a) session is called to order by the court a ROT is required.  See R.C.M. 1103(e).  For example, accused is arraigned and subsequent to arraignment, the charges are withdrawn and dismissed – prepare a summarized ROT.   

F. [Legacy] What if a verbatim ROT cannot be prepared?  See R.C.M. 1103(f).  But see United States v. Crowell, 21 M.J. 760 (N.M.C.M.R. 1985) (can reconstruct the record of trial to make it “verbatim”).

G. [Legacy] How verbatim is verbatim?  No substantial omissions.

1. Verbatim does not mean word-for-word.  See United States v. Gray, 7 M.J. 296 (C.M.A. 1979); United States v. Behling, 37 M.J. 637 (A.C.M.R. 1993).  Insubstantial omissions do not make a record non-verbatim, but substantial omissions create a rebuttable presumption of prejudice that the government must rebut.  United States v. McCullah, 11 M.J. 234 (C.M.A. 1981).

2. The government can reconstruct the record of trial to rebut the presumption of prejudice.  United States v. Lashley, 14 M.J. 7 (C.M.A. 1982); United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981); United States v. Crowell, 21 M.J. 760 (N.M.C.M.R. 1985).

3. United States v. Cudini, 36 M.J. 572 (A.C.M.R. 1992).  Failure to attach copy of charges and specifications as appellate exhibit not substantial omission; where omission is insubstantial, accused must show specific prejudice.

4. United States v. Washington, 35 M.J. 774 (A.C.M.R. 1992).  Pretrial conferences under R.C.M. 802 need not be recorded; matters agreed upon, however, must be made a part of the record.

5. United States v. Marsh, 35 M.J. 505 (A.F.C.M.R. 1992).  Off-the-record discussion of administrative discharge not a substantial omission where issue had been raised on the record and military judge ruled on the record that trial would proceed.

6. United States v. Clemons, 35 M.J. 767 (A.C.M.R. 1992).  ROT qualified as verbatim record although it included three off-the-record pauses; sessions involved purely administrative matters, what took place was not essential substance of trial, and sessions were not recorded for legitimate purposes.

7. United States v. Kyle, 32 M.J. 724 (A.F.C.M.R. 1991).  After reviewing documents in camera, MJ must seal the documents and attach them to the ROT.  See R.C.M. 702(g)(2) and Article 54(c)(1).  “A military judge must make a record of every significant in camera activity (other than his legal research) adequate to assure that his decisions are reviewable on appeal.”  Id. at 726.

8. United States v. Harmon, 29 M.J. 732 (A.F.C.M.R. 1989).  Tape recorder failed.  MJ attempted to reconstruct.  Because of substantial omission, burden on government to rebut presumption of prejudice.  In this case, an almost impossible task.

9. United States v. Sneed, 32 M.J. 537 (A.F.C.M.R. 1990).  DC argued ex parte motion telephonically to MJ.  Defense complained that record was not verbatim because the ex parte telephone conversation was not recorded and was not made a part of the required verbatim ROT.  Held:  “Although the omission may have sufficient ‘quantitative’ substance to raise the presumption of prejudice . . . we have no hesitancy in finding that presumption effectively rebutted, not so much by affirmative government action (e.g., reconstruction of the record) as by the totality of circumstances.”  Id. at 540.

10. United States v. Alston, 30 M.J. 969 (N.M.C.M.R. 1990).  Omission of testimony relating to offenses of which accused was acquitted was a substantial omission.

11. United States v. Chollet, 30 M.J. 1079 (C.G.C.M.R. 1990).  Several bench conferences had “inaudible” sections.  “We believe that these inaudible portions were substantial omissions which, along with other non-transcriptions, render the record non-verbatim.”  BCD disapproved.

12. United States v. Seal, 38 M.J. 659 (A.C.M.R. 1993).  Omission of videotape viewed by MJ before imposing sentence renders ROT “incomplete,” resulting in reversal.

13. United States v. Maxwell, 2 M.J. 1155 (N.M.C.M.R. 1975).  Two audiotapes were inadvertently destroyed, resulting in loss of counsel’s arguments, a brief Article 39(a) session on instructions, and announcement of findings.  All but DC argument reconstructed.  “We do not view the absence of defense counsel’s argument as a substantial omission to raise the presumption of prejudice . . . [and] no prejudice has been asserted.”  Id. at 1156.

14. United States v. Sylvester, 47 M.J. 390 (C.A.A.F. 1998).  ROT did not contain R.C.M. 1105/1106 submissions from CDC and request for deferment or the CA’s action thereon.  Held:  No error for failing to include the R.C.M. 1105/1106 submissions (CDC did not submit written matters, but made an oral presentation to the CA).  The CAAF refused to create a requirement that all such discussions be recorded or memorialized in the ROT, but made it clear they prefer written post-trial submissions.  The CAAF did find error, although harmless, for not including the deferment request and action in the ROT (the accused was released six days after the request).

15. United States v. Simmons, 54 M.J. 883 (N-M.C.C.A. 2001).  During appellant’s trial, there were two gaps in which the government had technical difficulty with its recording devices.  An Article 39(a) session had to be reconstructed due to a tape malfunction and approximately fifty minutes of testimony were lost due to the volume being too low.  Article 54(a) requires the preparation of a complete ROT in a general court-martial where the accused receives a discharge.  A complete ROT should include a verbatim transcript.  If the government cannot provide a verbatim ROT, it can either establish the accused suffered no prejudice or only approve the sentence that could be adjudged if the accused had been tried by a straight special court-martial.  The court did a line-by-line analysis of the portions of the ROT that were missing and concluded that no prejudice occurred.  The court agreed that the ROT was not verbatim, but the government had overcome the presumption of prejudice applied by the court.

16. United States v. Henthorn, Jr., 58 M.J. 556 (N-M.C.C.A. 2003).  ROT omitted approximately twenty-four pornographic images considered by the MJ on sentencing.  Held:  “such presumed prejudice [was] adequately rebutted” and any error stemming from the omission was harmless beyond a reasonable doubt.  Id. at 559.  Factors considered by the court:  the case was a guilty plea; the omitted evidence did not go to guilt or innocence; the appellant did not question the validity of his plea; the images were adequately described in the ROT; the DC was aware of the MJ’s proposed handling of the images (i.e., ordered sealed in NCIS case file); and neither DC or appellate DC questioned the nature of the omitted documents.

17. United States v. Usry, 68 M.J. 501 (C.G.C.C.A. 2009).  There was a fifty-second gap during the inquiry into the appellant’s competence.  The CGCCA holds that this was not a substantial omission.  Even though that fifty-second gap occurred when the military judge was inquiring into the appellant’s competence to stand trial, which is an important issue, the court holds that a decision on competence is “unlikely to turn on the precise words being spoken during a fifty-second period.”  The military judge had an opportunity to observe the appellant’s behavior during trial, which was more probative of the appellant’s competence than his answers to a few questions.

18. United States v. Miller, No. 20090826, 2010 WL 3620471 (A.C.C.A. May 20, 2010) (unpublished).  The ROT did not include a DVD showing the accused at work that was played at trial during sentencing.  The ACCA, finding prejudice, approved non-verbatim ROT punishment (six months confinement and a reduction to E-1).

19. United States v. Davenport,  73 M.J. 373 (C.A.A.F. 2014) Notwithstanding the military judge's and trial counsel's review, the record was authenticated on June 2, 2009; missing from the record was the entire testimony on the merits of SGT MS, a Government witness. The record indicates only that the Government called SGT MS as a witness. “The omission of the testimony of an entire merits witness is almost necessarily substantial where, as here, the content of the testimony is equivocal even after attempts to reconstruct it at a DuBay hearing. . . . On balance, the omission of SGT MS's testimony was substantial and, therefore, the transcript here was nonverbatim.” Since it was nonverbatim and cannot be reconstructed, R.C.M. 1103(f) limits the approved sentence to six months confinement and no discharge.

H. [Legacy] Trial counsel shall review 150 pages per day and unless unreasonable delay will result, DC will be given the same opportunity to examine the ROT before authentication.  R.C.M. 1103(i)(1)(B).  See also, U.S. Army Judiciary Rules of Court, R. 28.5 (dated Nov. 1, 2013); United States v. Bryant, 37 M.J. 668 (A.C.M.R. 1993).  Review by DC before authentication is preferred, but will not result in return of record for new authentication absent showing of prejudice.  See also United States v. Smith, 56 M.J. 711 (A.F.C.C.A. 2001).

I. [Legacy] Military Judges Duties / Responsibilities.  United States v. Chisholm, 58 M.J. 733 (A.C.C.A. 2003), aff’d, 59 M.J. 151 (C.A.A.F. 2003) (holding that lower court’s decision was not “advisory” in nature; issue of whether a Trial Judge has the authority noted by the lower court not reached by the court).  Both Article 38(a), UCMJ, and R.C.M. 1103(b)(1)(A) make the military judge responsible for overseeing and ensuring that the record of trial is prepared.  The court, after noting that preparation of the record of trial is a “shared responsibility” between the SJA and military judge, found that military judges “have both a duty and responsibility to take active roles in ‘directing’ the timely and accurate completion of court-martial proceedings.”  58 M.J. at 737.  The court highlighted a military judge’s “inherent authority to issue such reasonable orders as may be necessary to enforce that legal duty,” noting that the manner in which he or she directs completion of the record is a matter within his or her “broad discretion.”  Having said that, the court suggested several “remedial actions” available to a military judge:

The exact nature of the remedial action is within the sound judgment and broad discretion of the military judge, but could include, among other things: (1) directing a date certain for completion of the record with confinement credit or other progressive sentence relief for each day the record completion is late; (2) ordering the accused’s release from confinement until the record of trial is completed and authenticated; or, (3) if all else fails, and the accused has been prejudiced by the delay, setting aside the findings and the sentence with or without prejudice as to a rehearing.

Id. at 737-38.  Jurisdictions that choose to ignore a military judge’s order regarding preparation of the record of trial “do so at their peril.”  Id.  Note:  although the CAAF found that the lower court decision was NOT advisory, the CAAF also noted that “the parties in a subsequent case are free to argue that specific aspects of an opinion . . . should be treated as non-binding dicta.”  59 M.J. at 152.

VIII. Authenticating and Serving Records of Trial.  Article 54, UCMJ; R.C.M. 1104/R.C.M. 1112

A. As noted, authentication by the MJ is no longer be required.  Rather the court reporter will certify under R.C.M. 1112. That same rule will govern distribution of the ROT. Under the revised Art. 54(e), a larger class of victims appear to be eligible to receive copies of the record of trial.

B. [Legacy] Authentication by MJ or judges in GCM or SPCM with adjudged BCD. Authentication IAW service regulations for SPCM (same as GCM in AR 27-10).  Substitute authentication rules provided (Cruz-Rijos standard).

1. Dead, disabled or absent:  only exceptions to MJ authentication requirement.  Article 54(a).  United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976).

2. TC may authenticate the ROT only if the military judge is genuinely unavailable for a lengthy period of time.

a) PCS to distant place may qualify as absence.  United States v. Lott, 9 M.J. 70 (C.M.A. 1980).  Reduced precedential value in light of spread of technology (facsimiles, overnight delivery, etc.).  Also justification for substitute authentication is less given the demise of the 90-day post-trial/confinement Dunlap rule.  See United States v. Banks, 7 M.J. 92 (C.M.A. 1979).

b) An extended leave may be sufficient.  United States v. Walker, 20 M.J. 971 (N.M.C.M.R. 1985) (leave of thirty days is prolonged absence).  But see United States v. Batiste, 35 M.J. 742 (A.C.M.R. 1992) (fifteen day leave does not equal prolonged absence); R.C.M. 1104(a)(2)(B), discussion (substitute authentication only for emergencies; the brief, temporary absence of the MJ is not enough).

c) Military judge’s release from active duty authorizes substitute authentication UP of R.C.M. 1104(a)(2)(B).  See United States v. Garman, 59 M.J. 677 (A.C.C.A. 2003); United States v. Gibson, 50 M.J. 575, 576 (N-M.C.C.A. 1999).

d) A statement of the reasons for substitute authentication should be included in the ROT.  United States v. Lott, 9 M.J. 70 (C.M.A. 1980).

e) United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008).  Trial counsel made corrections to the record of trial, authenticated the record of trial “because of absence of the military judge,” and served it on the defense counsel.  Absent objection from the defense counsel, the CAAF held that this was insubstantial or non-prejudicial.

C. [Legacy] If more than one MJ, each must authenticate his portion.  United States v. Martinez, 27 M.J. 730 (A.C.M.R. 1988).

1. United States v. Ruh, 2014 CCA LEXIS 710 (A. Ct. Crim. App. 22 Sept 2014) ROT sent to MJ in Aug 2012; MJ failed to authenticate because he was on terminal leave.  TC finally authenticated on 14 Nov. 2012.

D. [Legacy] TC shall cause a copy of ROT to be served on the accused after authentication.  Substitute service rules provided.  R.C.M. 1104(b).

1. UCMJ, Article 54(c) requires such service as soon as the ROT is authenticated.

2. In United States v. Cruz-Rijos, 1 M.J. 429 (C.M.A. 1976), the CMA added the requirement that this be done well before CA takes action.

3. Substitute service on the DC is a permissible alternative.  See United States v. Derksen, 24 M.J. 818 (A.C.M.R. 1987).

E. [Legacy] Service on the victim. IAW R.C.M. 1103(g)(3), a victim is entitled to a free copy of the ROT. A victim is defined here as one who has suffered direct physical, emotional or pecuniary harm as a result of a specification or charge and is named in a specification of 120, 120b, 120c or 125 or any attempt to commit the same.   

F. [Legacy] What to do if the authenticated ROT is lost?  Produce a new ROT for authentication.  

1. United States v. Garcia, 37 M.J. 621 (A.C.M.R. 1993).  Holding that SJA-prepared certification that all allied documents were true copies of originals was sufficient substitute for original documents.

2. United States v. Godbee, 67 M.J. 532 (N-M.C.C.A. 2008).  The original ROT was lost.  The copy of the ROT submitted for appellate review was internally consistent and contained all numbered pages and exhibits.  The ROT also contained a copy of the authentication page signed by the military judge.  As a result, the NMCCA applies a presumption of regularity to its creation, authentication, and distribution.  Harmless error.

G. [Legacy] Rules for correcting an authenticated ROT.  Certificate of correction process.   Correction to make the ROT conform to the actual proceedings.  R.C.M. 1104(d).

H. [Legacy] The authenticated ROT will be forwarded to the CA for action or referred to the SJA for a recommendation before such action.  SJA recommendation required prior to taking action in a GCM or SPCM in which a punitive discharge or confinement for one year was adjudged.  R.C.M. 1106(a).

I. [Legacy] If defense time for errata is unreasonable, MJ can authenticate without errata.  R.C.M. 1103(i)(1)(B).

IX. Matters Submitted by the Accused.  Article 60, UCMJ; R.C.M. 1105/R.C.M. 1106

A. After being sentenced, the accused has the right to submit matters for the CA’s consideration. This is another area of change under the MJA 2016. The R.C.M. number will change and the timeline will also change dramatically, and be triggered by the announcement of sentence. Because the substance of the rule will not change much, it is likely the caselaw in this area will remain largely applicable.

1. See United States v. Davis, 20 M.J. 1015 (A.C.M.R. 1985) (holding that DC’s failure to submit matters under R.C.M. 1105 and failure to mention under R.C.M. 1106(f) that MJ strongly recommended suspension of the BCD was ineffective assistance).  See R.C.M. 1106(d)(3)(B) that now requires the SJA to bring to the CA’s attention recommendations for clemency made on the record by the sentencing authority.  See also United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001) (holding that DC’s submission of three enclosures which reduced the accused’s chances for clemency was ineffective).

2. United States v. Harris, 30 M.J. 580 (A.C.M.R. 1990).  DC is responsible for determining and gathering appropriate post-trial defense submissions.

3. United States v. Martinez, 31 M.J. 524 (A.C.M.R. 1990).  DC sent the accused one proposed R.C.M. 1105 submission.  When the defense counsel received no response (accused alleged he never received it), DC submitted nothing; ineffective assistance found.

4. United States v. Tyson, 44 M.J. 588 (N-M.C.C.A. 1996).  Substitute counsel, appointed during 15-month lapse between end of the SPCM and service of the PTR, failed to generate any post-trial matters (in part because accused failed to keep defense informed of his address).  No government error, but action set aside because of possible IAC.

5. United States v. Sylvester, 47 M.J. 390 (C.A.A.F. 1998).  Written submissions are preferred, even if only to document an oral presentation.

B. Accused can submit anything, but the CA need only consider written submissions.  See R.C.M. 1105/R.C.M. 1106.

1. The material may be anything that may reasonably tend to affect the CA’s action, including legal issues, excluded evidence, previously unavailable mitigation evidence, and clemency recommendations.  See United States v. Davis, 33 M.J. 13 (C.M.A. 1991). 

C. Time periods.

1. Under the MJA 2016, the accused will have 10 days from the announcement of sentence. R.C.M. 1106(d)(1). That may be extended by the CA for up to 20 days for “good cause.”  Good cause does not ordinarily “include the need to obtain matters that reasonably could have presented at the court-martial.” R.C.M. 1106(d)(4)(B).

2. [Legacy] GCM or SPCM – due on later of ten days after service of SJAR on BOTH DC and the accused and service of authenticated ROT on the accused.

3. [Legacy] SCM – within seven days of sentencing.

4. The failure to provide these time periods is error; however, the accused must make some showing that he would have submitted matters.  United States v. DeGrocco, 23 M.J. 146 (C.M.A. 1987).  See also United States v. Sosebee, 35 M.J. 892 (A.C.M.R. 1992).  “A staff judge advocate who discourages submissions to the convening authority after the thirty-day time limit but prior to action creates needless litigation and risks a remand from this Court.”  Id. at 894.

5. United States v. Borden, 74 M.J. 754 (A.C.C.A. 2015). The accused’s 10-day deadline to submit matters now begins to run the day the ROT arrives at his address.  This policy shift (under the old rule the clock did not run until receipt by the accused) ends the practice of an accused rejecting service and brings military case law into line with federal court practice and its rules on service. The gov’t must insure the ROT and SJAR are shipped to the correct address (either confinement or the address given by the accused).

D. Waiver rules.  These will not change under the MJA 2016. The accused may waive the right to make a submission under R.C.M. 1105 by:

1. Failing to make a timely submission.

a) United States v. Maners, 37 M.J. 966 (A.C.M.R. 1993).  CA not required to consider late submission, but may do so with view toward recalling and modifying earlier action.

b) But see United States v. Carmack, 37 M.J. 765 (A.C.M.R. 1993).  Government “stuck and left holding the bag” when defense makes weak or tardy submission, even though no error or haste on part of the government.

c) United States v. Doughman, 57 M.J. 653 (N-M.C.C.A. 2002).  Failure to submit matters in a timely manner constitutes a waiver of the right to submit matters.

Article 60, UCMJ, 10 U.S.C. § 860, affords an accused the right to submit matters for the convening authority’s consideration, prior to the convening authority taking action on the case . . . . With this statutory right . . . also comes a responsibility:  to submit matters in a timely fashion.  Both Article 60, UCMJ, and R.C.M. 1105 clearly require that matters in clemency be submitted within 10 days of the service of the record of trial or the staff judge advocate’s recommendation (SJAR), whichever is later, unless an extension is sought or granted.  Id. at 654.  Held:  absent evidence of an approved extension, the appellant waived the right to submit matters.  Despite finding waiver, a review of the record revealed no prejudice since the appellant’s submissions were in the proper place in the record and the action post-dated the appellant’s submission.  Citing United States v. Stephens, 56 M.J. 391 (C.A.A.F. 2002), the court noted that nothing requires the CA to list everything considered prior to taking action; in the absence of evidence to the contrary, the presumption is that the CA considered clemency matters submitted by the appellant prior to taking action.

2. By making a partial submission without expressly reserving in writing the right to submit additional matters.  United States v. Scott, 39 M.J. 769 (A.C.M.R. 1994).

3. Filing an express, written waiver.

4. United States v. Travis, 66 M.J. 301 (C.A.A.F. 2008).  Defense requested two short delays after the initial ten day response period to gather a letter from LtGen Mattis (now Gen Mattis, Commander, USCENTCOM).  Addendum served and three days later, CA took action.  Defense submitted letter from LtGen Mattis; filed writ to NMCCA claiming prejudice because no clemency matters were considered by CA.  Denied.  The CAAF held that there was no material prejudice to the appellant because CA purported to withdraw his action later, and approve the sentence as adjudged after considering the letter from LtGen Mattis.  Note:  CA had no authority to withdraw his first action because case had been forwarded to NMCCA.  Also, because SJA was in Iraq and defense counsel was at Camp Pendleton, much of this was communication related.  Take affirmative action to ensure matters are received before action taken.

5. United States v. Rosenthal, 62 M.J. 261 (C.A.A.F. 2005).  Waiver of submission of matters in first post-trial process does not automatically mean appellant waives submission of matters in second or subsequent post-trial process.  Appellant must be afforded the opportunity to submit matters.

E. Submission of matters contrary to client’s directive.  United States v. Williams, 57 M.J. 581 (N-M.C.C.A. 2002).  Error for the defense counsel to submit a Memorandum for Record that documented his advice to his client and his client’s decision not to submit clemency matters; however, the appellant suffered no harm as a result of the error.  See also United States v. Blunk, 37 C.M.R. 422 (C.M.A. 1967).

F. Claims of post-trial cruel and unusual punishment.

1. United States v. Roth, 57 M.J. 740 (A.C.C.A. 2002), aff’d, 58 M.J. 239 (C.A.A.F. 2003) (summary disposition).  Claims of post-trial cruel and unusual punishment in violation of the Eighth Amendment or Article 55, UCMJ, are within a CCA’s Article 66, UCMJ, review authority.  In order to succeed on his claim of injury to his testicle while at the DB, injury resulting from improper frisks without “penological justification,” the appellant must satisfy both an objective and subjective test regarding the alleged injury.  Objectively, the appellant must show that the “alleged deprivation or injury was ‘sufficiently serious’ to warrant relief.”  Id. at 742.  Second, the appellant must show that the person causing the injury had a “culpable state of mind and subjectively intended to maliciously or sadistically harm [him] through the use of wanton or unnecessary force, and that the injury was not caused by a good faith effort to maintain or restore discipline.”  Id.  Held:  although appellant satisfied the objective test, he failed to present any subjective evidence of culpability or use of wanton or unnecessary force.

2. United States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003), aff’d after remand, 60 M.J. 119 (C.A.A.F. 2004) (summary disposition).  The test for post-trial claims of cruel and unusual punishment is two pronged with an objective component and subjective component:  “whether there is a sufficiently serious act or omission that has produced a denial of necessities . . . [and] whether the state of mind of the prison official demonstrates deliberate indifference to inmate health or safety,” respectively.  Id. at 353.  Additionally, “to sustain an Eighth Amendment violation, there must be a showing that the misconduct by prison officials produced injury accompanied by physical or psychological pain.”  Id. at 354.  During the post-trial processing of the appellant’s case, the appellant’s counsel requested clemency based on seven separate grounds, one of which was an allegation that while confined at the USACFE, Mannheim, Germany, she was subjected to cruel and unusual punishment in violation of the Eighth Amendment and Article 55, UCMJ (i.e., sexual harassment and assaults by an E-6 cadre member over a two-month period).  In responding to the allegations, the government argued that the appellant failed to establish harm and additionally, relief was not warranted because the CA already granted clemency.  The CAAF disagreed with both assertions.  First, the court found that it was clear that the appellant suffered harm at the hands of the cadre member.  Next, although the CA granted some clemency (reducing confinement by three months), the CA’s action was unclear as to why he granted the clemency.  The appellant’s counsel raised seven separate bases for relief and the SJAR was silent regarding the allegation of cruel and unusual punishment.  Held:  the decision of the service court was affirmed as to findings and set aside as to sentence.  The case was remanded to the service court with the option of either granting relief at their level for the Article 55, UCMJ, violation (i.e., Eighth Amendment) or to remand back to the CA for remedial action.

3. United States v. Ney, 68 M.J. 613 (A.C.C.A. 2010).  The appellant asserted that the command failed to follow AR 190-47 by not transferring him to a military confinement facility within seven working days after trial (it took thirty-four days).  This Eighth Amendment and Article 55, UCMJ, claim was denied because:  1) administrative remedies, such as an Article 138 complaint, must be exhausted first; and, 2) regulatory violations alone are normally not enough for an Eighth Amendment or Article 55 violation.

G. Appellate counsel access to defense files.  United States v. Dorman, 58 M.J. 295 (C.A.A.F. 2003).  Error for military defense counsel and the CCA to deny civilian defense counsel access to the appellant’s case file after civilian defense counsel obtained a signed release from the client.  “[T]rial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the client’s written release.”  Id. at 298.

X. Matters submitted by a victim. R.C.M. 1105A/R.C.M. 1106A

A. A crime victim has the right to submit matters for consideration by the CA after the sentence is adjudged.  This is another area of change under the MJA 2016. The R.C.M. number will change and the timeline will also change dramatically, and be triggered by the announcement of sentence. Because the substance of the rule will not change much, it is likely the caselaw in this area will remain largely applicable.

B. A victim is defined as one who has suffered direct physical, emotional or pecuniary harm as a result of an offense on which the accused was convicted and on which the CA is now acting. This definition will not change.

C. [Legacy] The statement shall be submitted within ten days of receiving the later of the SJA’s recommendation or (if entitled to receive a copy) the record of trial.

XI. Recommendation of the SJA or Legal Officer.  Article 60, UCMJ; R.C.M. 1106/R.C.M. 1109 and 1110

A. This will be a dramatic change under the MJA 2016.  The new rules will only require that the CA “consult” with the SJA or legal advisor prior to taking action.  That is all. There is no requirement for it to be in writing, to be served on opposing counsel, or provide them an opportunity to respond.  Although AR 27-10 will likely impose additional requirements, the days of determining “new matter,” drafting addendums, and ensuring the opportunity to respond are likely over once we begin operating under the new system.  This also raises the question of whether defense counsel will continue to allege legal error in some fashion to the CA and how defense counsel will look to preserve, in writing, those issues they believe merit potential appellate review. 

B. [Legacy] R.C.M. 1106 requires a written SJA recommendation (SJAR) before the CA takes action on a GCM with any findings of guilty or a SPCM with an adjudged BCD or confinement for a year.

C. [Legacy] Disqualification of persons who have previously participated in the case.

1. Who is disqualified?  The accuser, investigating officer, court members, MJ, any TC, DC, or anyone who “has otherwise acted on behalf of the prosecution or defense.”  Article 46, UCMJ.

a) United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004).  SJA of TC who authored article in base newspaper stating that the interests of justice were not met in a recent court-martial because of administrative errors resulting in the inadmissibility of counseling documents was disqualified from participating in the post-trial process.  The SJA could have disclaimed the article, but instead said that the article could be imputed to him.  His failure to disqualify himself was error.

b) United States v. Gutierrez, 57 M.J. 148 (C.A.A.F. 2002).  Chief of Justice who testified on the merits in opposition to a defense motion to dismiss for lack of speedy trial and who later became the SJA, is disqualified from participating in the post-trial process.  Therefore, it was error for that officer to prepare the SJAR and the subsequent addendum.  The court noted, “Having actively participated in the preparation of the case against appellant, [that officer] was not in a position objectively to evaluate the fruits of her efforts.”  Id. at 149.

c) United States v. Johnson-Saunders, 48 M.J. 74 (C.A.A.F. 1998).  The Assistant TC, as the Acting Chief of Military Justice, prepared the SJAR.  The SJA added only one line, indicating he had reviewed and concurred with the SJAR. The DC did not object when served with the SJAR.  The court held that the ATC was disqualified to prepare the SJAR.  The court went on to hold that there was no waiver and there was plain error.  The court returned the case for a new SJAR and action.  The court created the test for non-statutory disqualification:  whether the trial participation of the person preparing the SJAR “would cause a disinterested observer to doubt the fairness of the post-trial proceedings.”

d) United States v. Sorrell, 47 M.J. 432 (C.A.A.F. 1998).  CoJ wrote the SJAR.  Dispute developed between the accused and the CoJ over whether the CoJ promised the accused he would recommend clemency if the accused testified against other soldiers (which he did).  The court avoided the issue; if there was error, it was harmless because the PTR recommended six months clemency, which the CA approved.

e) United States v. Stefan, No. 20081097 (A.C.C.A. Jan. 29, 2010) (unpublished), review granted, 69 M.J. 171 (C.A.A.F. 2010).  This case was submitted on its merits.  The majority affirmed the findings and the sentence without comment.  The dissent found that a disqualified officer advised the convening authority.  The officer at issue first appeared in the record of trial as “Chief, Military Justice,” by signing the referral of both the charges and additional charges.  Next, she appeared as trial counsel and served the referred charges and additional charges on appellant.  Third, she acted again as “Chief, Military Justice” by granting the defense request for extension of time to submit post-trial matters.  Next, she signed the promulgating order and the chronology sheet as “Acting Staff Judge Advocate.”  Then, on the same day, she signed the court-martial data sheet as three separate persons:  “Trial Counsel,” “Convening Authority or His/Her Representative,” and “Staff Judge Advocate of General Court-Martial Convening Authority or Reviewing Staff Judge Advocate.”  Finally, on that same day, she signed the addendum to the SJAR as “Acting SJA.” The dissent spent time discussing the roles of the chief of military justice and the fact that the “modern chief of military justice in the Army is in no way, shape, or form—not in concept or execution—‘neutral,’ and has no business advising the convening authority in the post-trial process.”  As a result, the dissent would have found prejudice by the numerous roles played by the chief of military justice in this case, and granted relief.

f) United States v. Stefan, 69 M.J. 256 (C.A.A.F. 2010).  The CAAF agreed with the dissent from the court below and found that the Chief of Justice was statutorily disqualified under Article 6(c), UCMJ, primarily because she served the referred charges and the additional charges on the accused, a “task traditionally reserved for detailed trial counsel, see R.C.M. 602.”  However, the CAAF held that the appellant was not prejudiced and granted no relief.  Of particular note to the CAAF was the fact that anyone who acts as a trial counsel is disqualified under the plain reading of Article 6(c), UCMJ, and not just those who are specifically detailed as trial counsel under Article 27, UCMJ.

g) United States v. Ramos, No. 20090099, 2010 WL 3946329 (A.C.C.A. July 19, 2010) (unpublished), aff’d, 69 M.J. 475 (C.A.A.F. Jan. 11, 2011) (summary disposition).  This case was submitted on its merits.  The majority affirmed the findings and the sentence without comment.  The dissent found that a disqualified officer advised the convening authority.  The facts here are very similar to the Stefan case above, because the same office of the staff judge advocate and the same officer were involved.  The dissent held that this case is very similar to the Stefan case above, except for the fact that the main document at issue in this case was the SJAR.  In Stefan, the main document at issue was the addendum.  As a result, the defense counsel had an opportunity to object to the disqualified officer acting in this case, whereas in Stefan, the defense counsel had no opportunity to object to the disqualified officer acting on the addendum.  As a result, the dissent would have remanded the case for at least “a new review and action.”

2. Also disqualified is the SJA who must review his own prior work (United States v. Engle, 1 M.J. 387 (C.M.A. 1976)); or his own testimony in some cases (United States v. Rice, 33 M.J. 451 (C.M.A. 1991)); United States v. Choice, 49 C.M.R. 663 (C.M.A. 1975).  United States v. McCormick, 34 M.J. 752 (N.M.C.M.R. 1992) (holding that PTR insufficient if prepared by a disqualified person, even if filtered through and adopted by the SJA).  See R.C.M. 1106(b) discussion.

3. “Material factual dispute” or “legitimate factual controversy” required.  United States v. Lynch, 39 M.J. 223, 228 (C.M.A. 1994).  See United States v. Bygrave, 40 M.J. 839 (N.M.C.M.R. 1994) (holding that PTR must come from one free from any connection with a controversy); United States v. Edwards, 45 M.J. 114 (C.A.A.F. 1996).  Legal officer (non-judge advocate) disqualified from preparing PTR because he preferred the charges, interrogated the accused, and acted as evidence custodian in case.  Mere prior participation does not disqualify, but involvement “far beyond that of a nominal accuser” did so here.

4. Who is not disqualified? 

a) The SJA who has participated in obtaining immunity or clemency for a witness in the case.  United States v. Decker, 15 M.J. 416 (C.M.A. 1983). 

b) Preparation of pretrial advice challenged at trial not automatically disqualifying; factual determination.  United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993).

c) United States v. McDowell, 59 M.J. 662 (A.F.C.C.A. 2003).  SJA whose initial SJAR was deemed defective on appeal is not per se disqualified when the error is a result of a change in the law as opposed to bad or erroneous advice.  Changes in the law affecting the validity of an SJAR do not create a “personal interest” in the case; however, erroneous or bad advice in an SJAR, returned to the same SJA for a second review and action may disqualify that SJA if it is shown he or she has an other than official interest in the case.

5. How do you test for disqualification outside the scope of the rules?  Do the officer’s actions before or during trial create, or appear to create, a risk that the officer will be unable to evaluate the evidence objectively and impartially?   United States v. Newman, 14 M.J. 474 (C.M.A. 1983).  See United States v. Kamyal, 19 M.J. 802 (A.C.M.R. 1984) (“a substantial risk of prejudgment”).  United States v. Johnson-Saunders, 48 M.J. 74 (C.A.A.F. 1998) (whether the involvement by a disqualified person in the PTR preparation “would cause a disinterested observer to doubt the fairness of the post-trial proceedings”)

6. R.C.M. 1106(c).  When the CA has no SJA or SJA is disqualified (unable to evaluate objectively and impartially), CA must request assignment of another SJA, or forward record to another GCMCA.  Make sure documentation is included in the record.

a) Informal agreement between SJAs is not sufficient.  United States v. Gavitt, 37 M.J. 761 (A.C.M.R. 1993).

b) United States v. Hall, 39 M.J. 593 (A.C.M.R. 1994).  SJA used incorrect procedure to obtain another SJA to perform post-trial functions.  Court holds that failure to follow procedures can be waived.

c) Deputies cannot sign SJARs.  United States v. Crenshaw, No. 9501222 (A.C.C.A. 1996) (unpublished).  Fact that Deputy Staff Judge Advocate (DSJA) improperly signed PTR as “Deputy SJA” rather than “Acting SJA” did not require corrective action where PTR “contained nothing controversial” and where SJA signed addendum that adhered to DSJA’s recommendation.

d) Who should author the SJAR?  The SJA.  United States v. Finster, 51 M.J. 185 (C.A.A.F. 1999), where a non-qualified individual signed the SJAR, the court concluded there was manifest prejudice.  United States v. Gatlin, 60 M.J. 804 (N-M.C.C.A. 2004) (refusing to apply a presumption of regularity to a PTR signed by a LT Stampher (not the SJA) when there was no explanation in the record as to why he prepared and signed the PTR; holding, however, that appellant did not make a showing of any prejudice).

D. [Legacy] Form and content:  “The staff judge advocate or legal advisor shall provide the [CA] with a copy of the report of results of trial, setting forth the findings, sentence, and confinement credit to be applied, a copy or summary of the pretrial agreement, if any, any recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence, and the staff judge advocate’s recommendation.”  R.C.M. 1106(d)(3). 

1. Findings and sentence. United States v. Russett, 40 M.J. 184 (C.M.A. 1994).  Requirement for the SJA to comment on multiplicity question arises when DC first raises the issue as part of the defense submission to the CA.

a) Accuracy most critical on charges and specs.  United States v. Diaz, 40 M.J. 335 (C.M.A. 1994) (the CMA disapproved findings on two specs omitted from PTR).  See also United States v. Sanchez, 54 M.J. 874 (A.C.C.A. 2001) (error in PTR alleging a finding of guilty to larceny as opposed to wrongful appropriation, however, no prejudice – finding of guilty to larceny set aside and replaced with a finding of guilty to wrongful appropriation and sentence affirmed after reassessment).  United States v. Lindsey, 56 M.J. 850 (A.C.C.A. 2002).  Finding of not guilty to specification reported in PTR as guilty.  DC failed to comment on the error.  Applying a waiver and plain error analysis, court held plain error; therefore, waiver did not apply.  Unsure on the issue of prejudice, the court reduced the sentence by two months.  “We are unsure of the impact of the error on appellant’s request for clemency.  To moot any possible claim of prejudice . . . and for the sake of judicial economy, we will take appropriate remedial action.”  Id. at 851.  But see United States v. Ross, 44 M.J. 534, 536 (A.F.C.C.A. 1996) (improper dates for offense in PTR – July vs. Sept. – not fatal when CA action reflected original, correct date of charge sheet; “we are reluctant to elevate ‘typos’ in dates to ‘plain error’” especially when waived).

b) Some errors indulged, especially when defense does not notice or point them out.  See, e.g., United States v. Royster, No. 9400201 (A.C.C.A. 1995) (unpublished); United States v. Bernier, 42 M.J. 521 (C.G.C.C.A. 1995); United States v. Zaptin, 41 M.J. 877 (N-M.C.C.A. 1995).  United States v. Gunkle, 55 M.J. 26 (C.A.A.F. 2001).  The PTR failed to reflect that the judge granted motions for a finding of not guilty and/or modification of charges.  Defense failed to mention these errors in their R.C.M. 1105/6 submissions, but did mention the judge’s favorable rulings. The court found no error.

c) Maximum punishment.  Not a required element; if done, ensure accuracy.  See United States v. Hammond, 60 M.J. 512 (A.C.C.A. 2004) (reducing confinement by thirty days when the PTR misstated the maximum punishment (life w/o possibility for parole when maximum was only six years)).

2. Any clemency recommendations by the MJ or panel.  R.C.M. 1106(d)(3) [2008 change].

a) United States v. Paz-Medina, 56 M.J. 501 (A.C.C.A. 2001).  Plain error for the SJA to omit member’s clemency recommendation regarding waiver of forfeitures from the PTR.  CA action set aside; returned for new PTR and action.  Court also commented on the slow post-trial processing stating, “[b]ecause we are already returning the case for a new SJAR and action, the new SJA and convening authority will also be provided a discretionary opportunity to fashion an appropriate remedy for the untimely processing.”  Id. at 505.

b) United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002).  Error found where government failed to serve DC with PTR prior to action when PTR omitted clemency recommendation from sentencing authority.

3. Summary of accused’s service record.  Required by the old, pre-23 August 2008, R.C.M. 1106(d)(3)(C), but not the new R.C.M. 1106.  Under the new R.C.M. 1106(d)(1), the SJA “shall use the record of trial in preparation of the recommendation, and may also use the personnel records of the accused or other matters in advising the [CA] whether clemency is warranted.” (emphasis added).

a) United States v. Parker, 73 M.J. 914 (A.F.C.C.A. 2014) The USAF version of an ORB/ERB submitted at trial was incorrect in that it did not list the accused’s combat and overseas time.  Air Force Instruction 51-201, states the personal data sheet should list an accused’s overseas service and combat time. Court notes while not required under the current R.C.M., if a service summary is given it must be accurate.  No prejudice here though because the specification and other materials stated offense occurred in Qatar.

b) United States v. Sanchez, 69 M.J. 679 (C.G.C.C.A. 2010).  The SJAR contained the fact that the appellant had no previous convictions, information about a prior nonjudicial punishment, and a list of four negative administrative remarks.  There was no mention of the appellant’s awards and decorations or positive marks.  The court found this to be prejudicial error and remanded the case for a new SJAR and action.  Even though there is no requirement to summarize the accused’s service records under the amendment to R.C.M. 1106(d), any summary must be “balanced” and “a fair portrayal.”

4. Nature and duration of any pretrial restraint.

a) “The accused was under no restraint;” or

b) “The accused served 67 days of pretrial confinement, which should be credited against his sentence to 8 years confinement.”

5. United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005).  SJAR erroneously advised the CA that there had been no pretrial restraint in appellant’s case.  In fact, the appellant had been restricted to the limits of Fort Stewart, Georgia for forty-four days until his court-martial.  The court determined that the SJA’s failure to advise the CA regarding appellant’s pretrial restraint was not inherently prejudicial and that appellant failed to make a colorable showing of possible prejudice.  The appellant failed to make a reference, direct or indirect, in his clemency petition.  Further, the length alone of the restraint, was not of an unusual length to attract the convening authority’s attention for clemency purposes.

a) United States v. Weber, 56 M.J. 736 (C.G.C.C.A. 2002). Error for SJA to omit from PTR that accused was subject to over three months of pretrial restriction; however, applying United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), accused failed to “make some colorable showing of possible prejudice” that would warrant relief.

b) United States v. Miller, 56 M.J. 764 (A.F.C.C.A. 2002).  SJAR failed to mention three days of pretrial confinement.  Held:  attachments to SJAR (e.g., Report of Result of Trial and Personal Data Sheet) both stated three days of PTC; therefore, no error.  Even if error, applying United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), accused failed to make a “colorable showing of prejudice” that would warrant relief.  Finally, court noted that accused waived the issue by failing to raise a timely objection in the absence of plain error.

6. CA’s obligation under any pretrial agreement.  See United States v. Green, 58 M.J. 855 (A.C.C.A. 2003); United States v. Sheffield, 60 M.J. 591 (A.F.C.C.A. 2004) (failure of the SJAR to notify the CA of his obligations regarding waiving automatic forfeitures was error).  The 2008 amendment to R.C.M. 1106(d)(3) requires a “copy or summary of the pretrial agreement.”

7. Additional appropriate matters may be included in the recommendation even if taken from outside the record.  R.C.M. 1106(d)(5).  See United States v. Due, 21 M.J. 431 (C.M.A. 1986).  See also United States v. Drayton, 40 M.J. 447 (C.M.A. 1994).  Key – service on accused and counsel and opportunity to comment!

E. [Legacy] Two additional tips.

1. Use a certificate of service when providing the defense with the SJAR.  United States v. McClelland, 25 M.J. 903 (A.C.M.R. 1988).  This logic should be extended to service of the accused’s copy of the SJAR.  See R.C.M. 1106(f).

2. List each enclosure (petitions for clemency, etc.) that goes to the CA on the SJAR/addendum and/or have the convening authority initial and date all documents.  United States v. Hallums, 26 M.J. 838 (A.C.M.R. 1988); United States v. Craig, 28 M.J. 321 (C.M.A. 1989).

a) Query:  What if the CA forgets to initial one written submission, but initials all the others?  Have you just given the DC evidence to argue that the CA “failed to consider” a written defense submission?

b) United States v. Blanch, 29 M.J. 672 (A.F.C.M.R. 1989) (government entitled to enhance “paper trail” and establish that accused’s R.C.M. 1105 matters were forwarded to and considered by the CA); United States v. Joseph, 36 M.J. 846 (A.C.M.R. 1993) (SJA’s affidavit established that matters submitted were considered by CA before action).

c) United States v. Briscoe, 56 M.J. 903 (A.F.C.C.A. 2002).  Failure of SJA to prepare addendum to PTR advising CA to consider all matters (i.e., written maters) submitted by accused cured through post-trial affidavit from CA and SJA swearing that all clemency matters were considered by CA prior to action.

d) United States v. Stephens, 56 M.J. 391 (C.A.A.F. 2002).  CA’s action stated that he “‘specifically considered the results of trial, the record of trial, and the recommendation of the [SJA]’.”  Id. at 392.  The CA’s action did not list the accused’s clemency matters.  Held:  no error since the evidence revealed the CA considered the addendum which included the accused’s clemency materials.  “We decline to hold that a document embodying the [CA’s] final action is defective simply because it refers to the SJA’s recommendation without also referring to the attachments, such as an addendum or clemency materials.”  Id.

e) United States v. Gaddy, 54 M.J. 769 (A.F.C.C.A. 2001). The appellant submitted a single letter from his pastor in his R.C.M. 1105 matters.  The SJA did not do an addendum accounting for the letter nor did the PTR advise the CA he had to consider all written submissions made by the appellant.  According to the court, it can assume the CA considered all defense submissions when the SJA prepares an addendum which includes mention of the defense submissions, advises the CA that he must consider the matters submitted, and the addendum actually lists the matters submitted.  If no addendum is prepared, the record must reflect that the CA was advised of his obligation to consider all written submissions from defense and there must be some evidence that the defense matters were actually considered.  The AFCCA found prejudice and reduced the appellant’s sentence by two months.

f) United States v. Baker, 54 M.J. 774 (A.F.C.C.A. 2001).  There was no evidence in the record that the CA had considered the defense R.C.M. 1105 matters.  SJA did not do an addendum to his PTR despite lengthy letter from accused requesting clemency.  Affidavits obtained to establish that the CA considered the appellant’s letter.  Although the court found no prejudicial error, they decry the waste of appellate assets caused by the SJA failing to follow standard Air Force post-trial process.  The court stated that they will be sending information to their TJAG about SJAs who commit egregious post-trial errors.

F. [Legacy] Errors in the recommendation.

1. Corrected on appeal without return to CA for action.

2. Returned for new recommendation and new action.  See United States v. Craig, 28 M.J. 321 (C.M.A. 1989).  “Since it is very difficult to determine how a convening authority would have exercised his broad discretion if the staff judge advocate had complied with R.C.M. 1106, a remand will usually be in order.”  Id. at 325 (quoting United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988)).  See also United States v. Reed, 33 M.J. 98 (C.M.A. 1991); United States v. Hamilton, 47 M.J. 32 (C.A.A.F. 1997).  “This court has often observed that the convening authority is an accused’s last best hope for clemency [citation omitted].  Clemency is the heart of the convening authority’s responsibility at that stage of a case.  If an SJA gives faulty advice in this regard, the impact is particularly serious because no subsequent authority can adequately fix that mistake.”  Id. at 35.  See also United States v. Ord, 63 M.J. 279 (C.A.A.F. 2006).  When the CA did not act expressly on the findings and the SJAR omitted a finding of guilty adjudged by the court-martial, the ACCA could not presume that the CA approved the omitted findings, but could return the record for a new SJAR and action.

a) United States v. Pate, 54 M.J. 501 (A.C.C.A. 2000). Accused was convicted at trial of several charges which were the basis of a prior Article 15.  The SJA advised the CA of the Article 15 in his PTR and erroneously stated the Article 15 was set aside.  Defense noted the error in the R.C.M. 1105/6 submissions and the SJA agreed with the defense in an addendum, which advised the CA he could not consider the Article 15 for any purpose other than granting Pierce credit to the appellant.  Defense claimed that under Pierce, an Article 15 of this nature cannot be used for any purpose, administrative or otherwise, and thus it was error for the SJA to mention it in the PTR.  The court disagreed, stating that Pierce does not require withholding this information from the CA.  The court went on to state that even if it did, the defense had failed to make a colorable showing of possible prejudice.

b) United States v. Williams, 54 M.J. 626 (A.F.C.C.A. 2000).  SJA signed the PTR three days before the military judge authenticated the ROT.  Defense claimed PTR was invalid because it was based on an unauthenticated record of trial (ROT) thus invalidating the CA’s action.  The court disagreed – ROT had only received minor, non-substantive errata from the military judge and defense failed to raise any objection in the R.C.M. 1105/6 submissions.  Court found no prejudice to the accused and noted that the issue was waived.  See also United States v. Smith, 54 M.J. 783 (A.F.C.C.A. 2001) (cautioning that when PTR dated nine days before authentication of the ROT, “this sort of inattention to detail far too often creates unnecessary issues on appeal.”).  Id. at 788.

c) United States v. Farence, 57 M.J. 674 (C.G.C.C.A. 2002).  Despite erroneous SJAR that advised the CA that the appellant was convicted of two offenses dismissed for sentencing purposes by the MJ, no corrective action was required when the appellant failed to make “some colorable showing of possible prejudice.”

3. Waived absent plain error.  R.C.M. 1106(f)(6) provides that “[f]ailure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.”

a) In cases where neither the appellant nor his counsel raises any error in the SJAR either as an R.C.M. 1106(f)(4) matter or on appeal, the reviewing court will apply a United States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998), plain error analysis:  (1) was there an error; (2) was the error plain and obvious; and, (3) did the error materially prejudice a substantial right.  United States v. Scalo, 59 M.J. 646 (A.C.C.A. 2003) (en banc), aff’d, 60 M.J. 435 (C.A.A.F. 2005). The reviewing court will not apply the lesser Wheelus standard of “some colorable showing of possible prejudice” to establish plain error in cases where the issues is not raised by the appellant either at or before action or on appeal.  Id. at 650.

b) In cases where neither the appellant nor his counsel raises an allegation of error in the SJAR as an R.C.M. 1106(f)(4) matter, but raises the error on appeal, the reviewing court will apply a Powell-Wheelus analysis (appellant need only show a “colorable showing of possible prejudice”).  United States v. Hartfield, 53 M.J. 719, 720 (A.C.C.A. 2000).

G. [Legacy] No recommendation is needed for total acquittals or other final terminations without findings. This now includes findings of not guilty only by reason of lack of mental responsibility.  See R.C.M. 1106(e).

H. [Legacy] Service of SJAR on DC and the accused.  R.C.M. 1106(f)(1).

1. Before forwarding the recommendation and the ROT to the CA for action, the SJA or legal officer shall cause a copy of the SJAR to be served on counsel for the accused.  A separate copy will be served on the accused.

a) United States v. Hickok, 45 M.J. 142 (C.A.A.F. 1996).  Failure to serve PTR on counsel is prejudicial error, even though counsel submitted matters before authentication of record and service of PTR.  Original counsel PCS’d, new counsel never appointed, and OSJA never tried to serve PTR.  The CAAF found accused “was unrepresented in law and in fact” during this stage.  Fact that R.C.M. 1105 clemency package was submitted at an early stage (and, all conceded, considered by CA at action) cannot compensate for the separate post-trial right to respond to the PTR under R.C.M. 1106.  United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002) (finding error for failing to serve DC with PTR prior to action when PTR omitted clemency recommendation from sentencing authority).

b) United States v. Siler, 60 M.J. 772 (N-M.C.C.A. 2004).  When the SJA served the PTR on appellant, the substitute DC put the SJA on notice that the DC did not have an attorney-client relationship with the appellant.  The CA took action without any comment by appellant or his substitute DC.  Once on notice of a potential problem concerning post-trial representation, the government has the responsibility to ensure adequate representation.

c) United States v. Cornelious, 41 M.J. 397 (C.A.A.F. 1995). The SJA should have realized that service of the PTR was inadequate because it was not served “on counsel for the accused” as required by R.C.M. 1106(f)(1).  In this case the court held that service was tantamount to no service at all and ordered a new PTR and CA action.  The court took pains to explain that because the SJA affirmatively inquired into the existence of the attorney-client relationship, he could not ignore the results of his inquiry.

d) United States v. Klein, 55 M.J. 752 (N-M.C.C.A. 2001). Failure to serve PTR on DC until five days after CA’s action constituted error, but accused failed to make “some colorable showing of possible prejudice.”  However, relief was granted on another basis.

e) United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002).  Action set aside because PTR which omitted required clemency recommendation from the MJ at sentencing served on DC day after action in the case.

f) United States v. Smith, 59 M.J. 604 (N-M.C.C.A. 2003).  Failure to produce evidence of service of the SJAR on the appellant prior to action does not preclude approval of a punitive discharge despite language to the contrary in R.C.M. 1107(d)(4) and 1103(c)(1).  The court, after noting that R.C.M. 1107(d)(4) was “inartfully drafted,” applied a “‘whole statute’ principle of statutory interpretation . . . considering the drafter’s intent . . . and [considering] case law,” rejected a literal reading of R.C.M. 1107(d)(4) and 1103(c)(1) that would require disapproval of a punitive discharge.  Finally, the court noted that the appellant failed to make a colorable showing of possible prejudice from the alleged error.

2. Although normally submitted simultaneously, R.C.M. 1105 and R.C.M. 1106 submissions serve different purposes.  R.C.M. 1105 submissions are the accused’s submissions where R.C.M. 1106 focuses on submission by the accused’s counsel.

3. R.C.M. 1106(f)(1).  “If it is impracticable to serve the recommendation on the accused for reasons including but not limited to the transfer of the accused to a distant place, the unauthorized absence of the accused, or military exigency, or if the accused so requests on the record at court or in writing, the accused’s copy shall be forwarded to the accused’s defense counsel.  A statement shall be attached to the record explaining why the accused was not served personally.”

a) United States v. Ayala, 38 M.J. 633 (A.C.M.R. 1993). Substitute service of ROT and PTR on DC authorized where accused is confined some distance away.

b) United States v. Smith, 37 M.J. 583 (N.M.C.M.R. 1993).  Mailing of recommendation is not impracticable where all parties are located in CONUS and the accused has provided a current mailing address.  

c) United States v. Lowery, 37 M.J. 1038 (A.C.M.R. 1993).  Real issue in this area is whether accused and defense counsel have had an opportunity to submit post-trial matters.

d) United States v. Ray, 37 M.J. 1052 (N.M.C.M.R. 1993).  Mere failure to serve does not warrant relief; accused did not offer evidence to rebut presumption that SJA had properly executed duties, did not submit matters that would have been submitted to CA, and did not assert any inaccuracies in the recommendation.

e) United States v. Ybarra, 57 M.J. 807 (N-M.C.C.A. 2002). Failure to serve ROT and SJAR on appellant as specifically requested by appellant does not warrant relief (i.e., no prejudice) when the appellant submitted a waiver of clemency and he failed, under United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), to cite to any errors or omissions in the SJAR that he would have brought to the CA’s attention had he been given the opportunity to do so.

4. R.C.M. 1106(f)(2).  The accused may designate at trial which counsel shall be served with the SJAR or may designate such counsel in writing to the SJA before the SJAR is served.  Absent such a designation, the priority for service is:  civilian counsel, individual military counsel, and then detailed counsel.  But see United States v. Johnson, 26 M.J. 509 (A.C.M.R. 1988) (holding that service on detailed defense counsel, even when accused was represented by civilian counsel, was sufficient.  Accused “must have acquiesced” in the response filed by detailed defense counsel because his letter to the CA was included in the detailed defense counsel’s response to the SJAR).

5. R.C.M. 1106(f)(2).  If no civilian counsel exists and all military counsel have been relieved or are not reasonably available, substitute counsel shall be detailed by an appropriate authority.  AR 27-10, para. 6-9 (11 May 2016), says the Chief, USATDS, or his delegee will detail defense counsel.  

a) Substitution of counsel problems.  R.C.M. 1106(f)(2).

(1) United States v. Iverson, 5 M.J. 440 (C.M.A. 1978).  Substituted counsel must form attorney­-client relationship with the accused; absent extraordinary circumstances, only the accused may terminate an existing relationship.  See also United States v. Miller, 45 M.J. 149 (C.A.A.F. 1996).  Substitute defense counsel’s failure to formally establish attorney-client relationship with accused found harmless, despite substitute counsel’s failure to consult accused or submit clemency package.  Detailed counsel (who later ETS’d) had submitted clemency materials before service of PTR, and government was not on any reasonable notice that substitute counsel and accused failed to enter attorney-client relationship.  In such circumstances, the test is for prejudice. 

(2) United States v. Howard, 47 M.J. 104 (C.A.A.F. 1997).  Rejecting an invitation to overrule Miller, the CAAF restated that failure of the substitute DC to contact the client post-trial will be tested for prejudice.  “Prejudice” does not require the accused to show that such contact and the resulting submission would have resulted in clemency; it only requires a showing that the accused would have been able to submit something to counter the SJA’s PTR.

(3) United States v. Antonio, 20 M.J. 828 (A.C.M.R. 1985).  Accused may waive the right to his former counsel by his acceptance of substitute counsel and his assent to representation.

(4) United States v. Hood, 47 M.J. 95 (C.A.A.F. 1997).  Even if the substitute counsel does form the required attorney-client relationship, failure to discuss the accused’s clemency packet with him prior to submission is deficient performance under the first prong of the Strickland analysis.

(5) United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999).  The convening authority must ensure that the accused is represented during post-trial.  Submission of R.C.M. 1105 and 1106 matters is considered to be a critical point in the criminal proceedings against an accused.

b) If the accused alleges ineffective assistance of counsel (IAC) after trial, that counsel cannot be the one who is served with the SJAR.

(1) United States v. Cornelious, 41 M.J. 397 (C.A.A.F. 1995). Government on notice of likely IAC.  Court remanded to determine whether accused substantially prejudiced.

(2) United States v. Carter, 40 M.J. 102 (C.M.A. 1994).  No conflict exists where DC is unaware of allegations.

(3) United States v. Alomarestrada, 39 M.J. 1068 (A.C.M.R. 1994).  Dissatisfaction with outcome of trial does not always equal attack on competence of counsel requiring appointment of substitute counsel.

(4) United States v. Sombolay, 37 M.J. 647 (A.C.M.R. 1993).  Substitute counsel not required where allegations of ineffective assistance are made after submission of response to PTR.

6. R.C.M. 1106(f)(3).  Upon request, a copy of the ROT shall be provided for use by DC.  DC should include this boilerplate language in the Post-Trial and Appellate Rights Forms.

I. [Legacy] Defense Counsel Submissions.  R.C.M. 1106(f)(4).  “Counsel for the accused may submit, in writing, corrections or rebuttal to any matter in the recommendation believed to be erroneous, inadequate, or misleading, and may comment on any other matter.”

1. United States v. Goode, 1 M.J. 3 (C.M.A. 1975).  Service of PTR on the DC is required before the CA can take action.  DC’s failure to object to errors in PTR response normally waives such errors.  See also United States v. Narine, 14 M.J. 55 (C.M.A. 1982).

2. Response due within 10 days of SJAR arriving to both DC and accused and service of authenticated ROT on accused, whichever is later. U.S. v. Borden 74 M.J. 754 (A.C.C.A. 2015).

3. SJA may approve delay for R.C.M. 1105 (not R.C.M. 1106) matters for up to 20 days; only CA may disapprove.  Note the distinction between the timelines and approval and/or disapproval authority when dealing with R.C.M. 1105 vs. R.C.M. 1106 matters.  See R.C.M. 1105(c)(1) and R.C.M. 1106(f)(3).  Key:  serve accused and counsel the authenticated ROT and SJAR at the same time. 

J. [Legacy] Staff Judge Advocate’s Addendum.  R.C.M. 1106(f)(7).  “The staff judge advocate or legal officer may supplement the recommendation after the accused and counsel for the accused have been served with the recommendation and given an opportunity to respond.”

1. Must address allegations of legal error.  Rationale not required; “I have considered the defense allegation of legal error regarding _________.  I disagree that this was legal error.  In my opinion, no corrective action is necessary.”  See also United States v. McKinley, 48 M.J. 280, 281 (C.A.A.F. 1998) (Judge Cox’s interpretation of R.C.M. 1106(d)(4) and how to respond to an allegation of legal error).

a) See United States v. Keck, 22 M.J. 755 (N.M.C.M.R. 1986).  See also United States v. Broussard, 35 M.J. 665 (A.C.M.R. 1992) (addendum stating “I have carefully considered the enclosed matters and, in my opinion, corrective action with respect to the findings and sentence is not warranted” was an adequate statement of disagreement with the assertions of accused).  Need not give rationale or analysis – mere disagreement and comment on the need for corrective action sufficient.

b) United States v. Welker, 44 M.J. 85 (C.A.A.F. 1996).  Although error for SJA not to respond to defense assertions of legal errors made in post-trial submissions, the CAAF looked to record and determined there was no merit to the allegation of error raised by the defense in the R.C.M. 1105/6 submissions.  Consequently, the court held that there was no prejudice to the accused by the SJA’s failure to comment on the allegation of error raised by the defense.  The court also reaffirmed the principle that a statement of agreement or disagreement, without statement of rationale, is OK.  Court will test for prejudice.  When (as here) the court finds no trial error, it will find no prejudice.  See also United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996) (comments on preparation of ROT were “trivial”); United States v. Hutchison, 56 M.J. 756 (A.C.C.A. 2002).

c) United States v. Sojfer, 44 M.J. 603 (N-M.C.C.A. 1996).  Seven page addendum recited alleged errors and said, “‘My recommendation remains unchanged:  I recommend that you take action to approve the sentence as adjudged’ . . .  He [SJA] made no other comment regarding the merit of the assigned errors.”  Id. at 611.  Government argued that “only inference . . . is that the [SJA] disagreed with all of the errors that were raised.  We agree.”  Id.

d) United States v. Zimmer, 56 M.J. 869 (A.C.C.A. 2002).  It was error for SJA not to respond to allegation of error regarding improper deferment denial.

2. Ambiguous, unclear defense submission.  If the submission arguably alleges a legal error in the trial, the SJA must respond under R.C.M. 1106 and state whether corrective action is needed.

a) United States v. Williams-Oatman, 38 M.J. 602 (A.C.M.R. 1993).  “Consideration of inadmissible evidence” is sufficient allegation of legal error.

b) United States v. Hutchison, 56 M.J. 756 (A.C.C.A. 2002).  Unsupported claim of onerous and illegal pretrial punishment which was not raised at trial after specific Article 13 inquiry by MJ and raised for the first time in clemency submission does NOT allege legal error requiring comment by the SJA.  Likewise, alleged undue, non-prejudicial post-trial delay does not raise an allegation of legal error requiring comment by the SJA.

3. R.C.M. 1106(f)(7).  Addenda containing “new matter” must be served on the defense.  

a) United States v. Valencia, 2015 CCA LEXIS 449 (A.Ct. Crim. App. Oct. 23, 2015) Victim initially declined to submit matters to the convening authority, IAW R.C.M. 1105A; however once she was served the ROT she wrote a statement on a form returned to the OSJA and sent to the CA.  The statement was a view on what action the CA should take on the sentence and was never served on defense counsel.  ACCA ruled it was new matter that should have been served, but no prejudice because CA had already approved adjudged sentence without knowing of the victim submission. CA signed a supplemental action after seeing the submission and ratified his earlier decision.

b) United States v. Leal, 44 M.J. 235 (C.A.A.F. 1996).  If the additional information is not part of the record, i.e., transcript, consider it to be new matter.  Not enough that the information is contained “between the blue covers,” because that would permit government to highlight and smuggle to CA evidence offered but not admitted.  Here, the addendum referred to a letter of reprimand; the failure to serve the addendum required a new PTR and action by a new CA.  But see United States v. Brown, 54 M.J. 289 (C.A.A.F. 2000).  New action not required where defense, on appeal, fails to proffer a possible response to the un-served addendum that “could have produced a different result.”  Id. at 293.

c) United States v. Cook, 43 M.J. 829 (A.F.C.C.A. 1996), aff’d, 46 M.J. 37 (C.A.A.F. 1997).  In two post-trial memos, the SJA advised the CA about the MJ’s qualifications and experience, the likelihood of the accused waiving an administrative separation board, and minimizing effects of BCD.  The AFCCA disapproved the BCD because all of this was obviously outside the record and should have been served on accused with opportunity to comment.

d) United States v. Harris, 43 M.J. 652 (A.C.C.A. 1995).  Addendum mentioned for the first time that the accused had received three prior Article 15s; new review and action required.

e) United States v. Sliney, No. 9400011 (A.C.C.A. 1995) (unpublished).  The inclusion of letters from victim and victim-witness liaison required re-service; new action required.  Accord United States v. Haire, 40 M.J. 530 (C.G.C.M.R. 1994).

f) United States v. McCrimmons, 39 M.J. 867 (N.M.C.M.R. 1994).  Reference in addendum to three thefts that formed basis for court-martial (“demonstrated by his past behavior that he is not trustworthy”), not “new matter.”

g) United States v. Heirs, 29 M.J. 68 (C.M.A. 1989).  The SJA erred by erroneously advising the CA in the addendum that Heirs’ admissions during the rejected providence inquiry could be used to support the findings of guilty once the accused challenged the sufficiency of the evidence post-trial.

h) United States v. Jones, 44 M.J. 242 (C.A.A.F. 1996).  Addendum explained post-trial delays and an Air Force Regulation on the Return to Duty Program (RDP).  The CAAF held this information to be new matter under R.C.M. 1106(f)(7).  However, error was harmless since many of the reasons for the delay were in the Record of Trial, and the contents of the regulation were clearly known to the defense since the defense asked for entry into the RDP.

i) United States v. Catalani, 46 M.J. 325 (C.A.A.F. 1997).  The addendum stated, “All of the matters submitted for your consideration in extenuation and mitigation were offered by the defense at trial; and the senior most military judge in the Pacific imposed a sentence that, in my opinion, was both fair and proportionate to the offense committed.”  This was held to be new matter under R.C.M. 1106(f)(7).  The case was returned for submission to a different convening authority for action.

j) United States v. Trosper, 47 M.J. 728 (N-M.C.C.A. 1997).  The Division Sergeant Major attached a memorandum to the addendum that stated that “taking responsibility means he accepts the punishment awarded. . . . He has earned his brig time and his BCD.”  The court found this to be unremarkable because commanders “seek the counsel of his or her trusted advisors in such a weighty matter.”  Even if this was new matter, the appellant did not state how he would respond to the memorandum, so there was no prejudice.

k) United States v. Cornwell, 49 M.J. 491 (C.A.A.F. 1998).  CG asked the SJA whether the command supports the accused’s request for clemency.  The SJA called the accused’s commanders, then verbally relayed their recommendations against clemency for the accused to the CG.  The SJA then signed an MFR to that effect, and attached it to the ROT.  The CAAF held the SJA’s advice to the CG is not new matter in the addendum under R.C.M 1106(f)(7), but may be new matter under R.C.M. 1107(b)(3)(B)(iii) of which the accused’s is not charged with the knowledge thereof.  However, even if such, the CAAF says the defense did not indicate what they would have done in response, so no relief.

l) United States v. Anderson, 53 M.J. 374 (C.A.A.F. 2000).  A paper-clipped, small (3 x 3 ½), hand-written note attached to the last page of the SJAR from the chief of staff to the convening authority that stated, “Lucky he didn’t kill the SSgt.  He’s a thug, Sir.” was new matter requiring service on the accused and an opportunity to respond.

m) United States v. Gilbreath, 57 M.J. 57 (C.A.A.F. 2002).  Error for SJA, after a Judge Alone trial, not to serve addendum on defense which stated in part, “After hearing all matters, the jury determined a bad conduct discharge was appropriate and as such, I recommend you approve the sentence as adjudged.”  Id. at 59.  Defense could have pointed out that: (1) the trial was judge alone, and (2) the sentencing authority did NOT consider the clemency submissions.  Note – the court also questioned whether the statement by the SJA was improper. “She [DC] also could have made a persuasive argument that the SJA’s recommendation that the CA defer to the judgment of the members was also legally improper.”  Id. at 62.

n) United States v. Gilbreath, 58 M.J. 661 (A.F.C.C.A. 2003), aff’d, 59 M.J. 400 (C.A.A.F. 2004) (summary disposition).  After remand from the case above, the insertion in the SJA’s addendum of a statement of inability to locate appellant to serve her with post-trial documents constituted “new matter” requiring service on the appellant’s defense counsel and an opportunity to respond.  The government could have avoided this issue by complying with the substitute service provisions of R.C.M. 1106(f)(1), which simply require a statement in the record of trial explaining “why the accused was not served personally.”  Applying the standard for relief enunciated in United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997) (appellant must “demonstrate prejudice by stating what, if anything, would have been submitted to ‘deny, counter, or explain’ the new matter.”), the AFCCA noted that the inability to locate appellant could be perceived by the CA as evidence of appellant’s disobedience of orders because she failed to provide a valid leave address while on appellate leave.  Additionally, the CA could view the comment as an indication of how little she cared about her case because she failed to provide a proper mailing address for issues associated with her case.  In light of the potential adverse impact of the SJA’s comments, the AFCCA found prejudice and determined that its charter to “do justice” mandated a new SJAR and action in the case.  Id. at 665.

o) United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008).  SJA’s lengthy rebuttal to defense assertions that the accused’s sentence was overly harsh was not a new matter.  Unlike Catalani and Gilbreath, the SJA’s comments did not misinform the CA as to the matters contained in the accused’s clemency submissions or misstate the sentencing authority in the accused’s case.

p) United States v. Frederickson, 63 M.J. 55 (C.A.A.F. 2006).  The DSJA prepared the addendum, which was endorsed by the SJA.  It was not served on the defense, despite all of the DSJA’s observations about the defense submissions.  The CAAF held that the addendum constituted new matter, and should have been served on the defense.  However, in this case, they held that the defense counsel could not demonstrate prejudice since the proffered defense response was the same.

q) United States v. Tuscan, 67 M.J. 592 (C.G.C.C.A. 2008).  Addendum contained the following:  “I also disagree with the defense counsel’s statement that the accused is ‘remorseful for the events that transpired.’ . . . As you may recall, the pretrial offers, taken as a whole were unreasonable and on their face did not reflect a willingness on the part of the accused to fully accept responsibility.”  The CGCCA finds that this comment, while not a complete picture of the pretrial negotiations, was not error.  The CGCCA warns against doing this in the future, since the SJAR Addendum is not intended to be a “document of advocacy for the government.  An SJA should not only be objective, as noted above, but also should maintain the appearance of objectivity.”

4. Addendum should remind CA of the requirement to review the accused’s post-trial submissions.  United States v. Pelletier, 31 M.J. 501 (A.F.C.M.R. 1990); United States v. Ericson, 37 M.J. 1011 (A.C.M.R. 1993).

a) United States v. Foy, 30 M.J. 664 (A.F.C.M.R. 1990).  Appellate courts will presume post-trial regularity if the SJA prepares an addendum that:

(1) Informs the CA that the accused submitted matters and that they are attached;

(2) Informs the CA that he must consider the accused’s submissions; and,

(3) Lists the attachments.

b) United States v. Taylor, 67 M.J. 578 (A.F.C.C.A. 2008).  In her clemency submissions to the convening authority, the appellant asked to enter the Return-To-Duty Program (RTDP).  The addendum made no mention of this request, nor did it advise the convening authority of his options regarding the RTDP.  The addendum did specifically list the appellant’s submissions and advised the convening authority that he had to consider them prior to taking action.  No error.

5. Who should sign the addendum?  The SJA.

a) United States v. Hudgins, 69 M.J. 630 (A.C.C.A. 2010).  If the Deputy Staff Judge Advocate signs the addendum, then he or she should sign it as the Acting SJA.  Signing it as the Deputy Staff Judge Advocate or “for” the SJA is improper under Article 60(d), UCMJ, and R.C.M. 1106(a).  No prejudice in this case because “the Deputy Staff Judge Advocate was an officer and experienced judge advocate who was statutorily qualified to sign the addendum as the Acting SJA in the SJA’s absence.”

K. [Legacy] What if the accused submitted matters but there is no addendum?

1. United States v. Godreau, 31 M.J. 809 (A.F.C.M.R. 1990).  Two conditions for a presumption of post-trial regularity:

a) There must be a statement in the SJAR informing the CA that he must consider the accused’s submissions.

b) There must be some means of determining that the CA in fact considered all post-trial materials submitted by the accused.  Ideal:  (1) list all attachments; (2) have the CA initials and dates all submissions in a “clearly indicated location.”

2. If United States v. Foy, 30 M.J. 664 (A.F.C.M.R. 1990), requirements are not met, or if no addendum and the two Godreau conditions are not met, the government must submit an affidavit from the CA.  See United States v. Joseph, 36 M.J. 846 (A.C.M.R. 1993).

3. “The best way to avoid a Craig [28 M.J. 321 (C.M.A. 1989)] problem is to prepare an addendum using the guidance in Foy and Pelletier to ensure compliance with Craig and UCMJ, Article 60(c).  If this method is used, there will be no need to have the convening authority initial submissions or prepare an affidavit.” Godreau, 31 M.J. at 812.

4. United States v. Buller, 46 M.J. 467 (C.A.A.F. 1997).  “[L]itigation can be avoided through the relatively simple process of serving the addendum on the accused in all cases, regardless whether it contains ‘new matter’.”  Id. at 469 n.4.

5. United States v. Briscoe, 56 M.J. 903 (A.F.C.C.A. 2002).  Failure of SJA to prepare addendum to PTR advising CA to consider all matters (i.e., written matters) submitted by accused cured through post-trial affidavit from CA and SJA swearing that all clemency matters were considered by CA prior to action.

L. [Legacy] Common SJAR and addendum errors:

1. Inaccurately reflect charges and specifications (especially dismissals, consolidations).

2. Inaccurately reflect the maximum punishment.

3. Omit, misapply pretrial confinement (Allen, R.C.M. 305(k) credit).

4. Omit, misapply Article 15 (Pierce) credit.

5. Recommend approval of greater than 2/3 forfeitures for periods of no confinement.

6. Recommend approval (in special courts-martial) forfeitures and fines (cumulatively) in excess of the court-martial’s jurisdictional limit.

7. Add extraneous (and often erroneous) information.

XII. Action by Convening Authority and Entry of judgment.  Article 60, UCMJ; R.C.M. 1107/R.C.M. 1109, 1110 and 1111

A. The MJA 2016 will break R.C.M. 1107 into two separate rules – R.C.M. 1109 will cover cases where Congress has severely limited the CA’s ability to grant clemency. R.C.M. 1110 will govern all other cases where the CA retains unfettered discretion. Otherwise, the only notable change to Art. 60 will be to provide a provision for the MJ to recommend suspension of a punitive discharge to the CA in cases where there is no mandatory minimum punitive discharge. This was something specifically contemplated by the MJRG as a way to potentially rehabilitate Soldiers and given them an opportunity to return to the unit. For those cases that involve all pre-1 January 2019 offenses, but are referred and tried after 1 January 2019, the EO states that the suspension authority in Art. 60 will be also be available to the accused. Finally, the MJA 2016 will add an entirely new step in the process – Entry of Judgment – done by the MJ, following CA action, which terminates the trial proceedings and initiates appellate review.

B. Who may act:  the CA.  See United States v. Delp, 31 M.J. 645 (A.F.C.M.R. 1990) (the person who convened the court).

1. United States v. Fernandez, 24 M.J. 77 (C.M.A. 1987).  CA wrote a drug-abuse policy memorandum that characterized illegal drugs as a “threat to combat readiness,” among other things.  This strongly worded memo did not suggest an inelastic attitude that would prohibit the convening authority from taking action under Article 60, UCMJ. 

2. United States v. Solnick, 39 M.J. 930 (N.M.C.M.R. 1994).  Rule requiring CA to take action unless impractical requires that there be practical reason for transferring case from control of officer who convened court to superior after trial, and precludes superior from plucking case out of hand of CA for improper reason.

3. United States v. Rivera-Cintron, 29 M.J. 757 (A.C.M.R. 1989).  Acting Commander not disqualified from taking action in case even though he had been initially detailed to sit on accused’s panel.

4. United States v. Cortes, 29 M.J. 946 (A.C.M.R. 1990).  After considering the Assistant Division Commander’s affidavit, the court determined that the acting CA, who approved accused’s sentence as adjudged, was not affected by the editorial written by the CA about the “slime that lives among us.”

5. United States v. Vith, 34 M.J. 277 (C.M.A. 1992).  Commander did not lose impartiality by being exposed to three pages of accused’s immunized testimony in companion case; commander had no personal interest in the case and there was no appearance of vindictiveness.

6. United States v. Mack, 56 M.J. 786 (A.C.C.A. 2002).  Installation Chaplain and staff officer to the CA stole over $73,000 from the Consolidated Chaplains’ Fund (CCF).  Although CA had a personal and professional relationship with accused, he was not disqualified from acting as CA absent evidence that he had a “personal interest in the outcome of the [accused’s] case.”  Id. at 794.  The ACCA found that the CA was not an “accuser” as alleged by the accused and there was no error, plain or otherwise, by the CA taking action.  Additionally, the ACCA found accused waived the issue of CA as accuser absent plain (clear and obvious) error.

7. United States v. Walker, 56 M.J. 617 (A.F.C.C.A. 2001).  CA’s comments during visit to confinement facility established an “arbitrary and inflexible refusal to consider clemency,” thus disqualifying him from acting in accused’s case.  According to accused, CA, during a confinement visit, stated the following:  “I have no sympathy for you guys, you made your own decisions and you put yourself in this situation.  I’m not sympathetic, and I show no mercy for you.  I hope you guys learn from this, but half of you will go on and try to cheat civilian laws and end up in a worst [sic] place than this.”  Id. at 618.  Allegation by appellant went uncontested by the CA.  Relief – action of CA set aside and returned to another SJA and CA for a new PTR and action.  Court noted that its opinion did not mean that the CA in question was forever disqualified from taking action in other cases.  See also United States v. Jeter, 35 M.J. 442 (C.M.A. 1992); United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999).

8. United States v. Barry, 57 M.J. 799 (A.C.C.A. 2002).  Absent a proper transfer of authority from one GCMCA to another, a transfer based on impracticability, a commander who did not convene the court lacks authority to act on the case.  The appellant, assigned to the 10th Mountain Division (Light Infantry) at all times relevant, was convicted at a GCM convened by the Commander, 10th Mountain Division (Light Infantry); however, action in his case was taken by the Commander, 10th Mountain Division (Light Infantry) (Rear), who signed as Commander, 10th Mountain Division (Light Infantry).  Because of the action by an improper convening authority, as well as concerns whether the SJA in the case was disqualified from providing legal advice, the case was returned for a new SJAR and action.  See also United States v. Newlove, 59 M.J. 540 (A.C.C.A. 2003).

9. United States v. Gudmundson, 57 M.J. 493 (C.A.A.F. 2002).  CA who testified on a controverted matter in a case was NOT per se disqualified from acting on the case.  BG Fletcher, the CA, authorized “Operation Nighthawk,” the “inspection” that resulted in appellant’s positive urinalysis result, and testified on the motion to suppress.  Testimony by a CA indicating a “personal connection with the case” may result in disqualification whereas testimony of “an official or disinterested nature only” is not disqualifying.  Where an appellant is aware of potential grounds for disqualification and fails to raise them, the issue is waived on appeal.  Id at 495.  In the case at bar, the appellant’s clemency submissions, while reminding the CA of the fact that he previously testified in the appellant’s court-martial, did not ask the CA to disqualify himself.

10. United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003).  CA disqualification falls into two categories:  (1) involves cases where the CA is an accuser, has a personal interest in the outcome of the case, or has a personal bias toward the accused; and (2) involves instances where the CA exhibits or displays an inelastic attitude toward the performance of his or her post-trial duties or responsibilities.  Comments by the CA in the appellant’s drug case that “people caught using illegal drugs would be prosecuted to the fullest extent, and if they were convicted, they should not come crying to him about their situations or their families[’], or words to that effect” fall into category 2.  Although CAs “need not appear indifferent to crime,” they must maintain a “flexible mind” and a “balanced approach” when dealing with it.  Id. at 103.  The CA’s comments reflected an inelastic or “inflexible” attitude toward his post-trial duties when dealing with drug cases and as such, he was disqualified from acting on the appellant’s case.  The decision of the lower court was reversed, the action set aside and the case remanded for a new review and action by a different CA.  United States v. Taylor, 60 M.J. 190 (C.A.A.F. 2004) involved an allegation in category 1.  The DC requested the CA’s disqualification because an article authored by a TC and imputed to SJA amounted to a prejudgment as to clemency.  The CA signed an affidavit stating that he was not aware of the article until the DC pointed it out and that he had no role in the article’s preparation or publication.  He also stated that the article did not influence his decision to not grant clemency.  The CAAF held that the record established that the article could not be imputed to the CA, so disqualification was not appropriate.

11. United States v. Brown, 57 M.J. 623 (N-M.C.C.A. 2002).  Error for one SPCMCA to act on a case convened by another SPCMCA.  Held – although Article 60, UCMJ, and R.C.M. 1107(a) allow for a different CA than that who convened a case to act on a case, this is the exception rather than the rule, and is allowed in situations where it is impracticable for the convening authority to act.  Furthermore, in situations of impracticability, the transfer of the case should be to an officer exercising general court-martial jurisdiction (OEGCMJ), not to another special court-martial convening authority.  In the case at bar, there was no showing of impracticability, the record of trial failed to contain any statement of impracticability as required by R.C.M. 1107, and the transfer of the case was not to an OEGCMJ; therefore, the action was set aside and the case remanded for a new action by a proper convening authority.

C. CA not automatically disqualified simply because prior action set aside.  United States v. Ralbovsky, 32 M.J. 921 (A.F.C.M.R. 1991).  Test:  Does CA have other than an official interest or was he a member of the court-martial?

D. [Legacy] When to Act?

1. Cannot act before R.C.M. 1105(c) time periods have expired or submissions have been waived.

2. United States v. Lowe, 58 M.J. 261 (C.A.A.F. 2003).  Prejudicial error for the CA to act on the case prior to service of the SJAR on the appellant’s defense counsel as required by R.C.M. 1106(f)(1).  The plain language of R.C.M. 1106(f)(1) as well as Article 60, UCMJ establish, as a matter of right, the requirement for service of the SJAR prior to action.  The court noted:

The opportunity to be heard before or after the convening authority considers his action on the case is simply not qualitatively the same as being heard at the time a convening authority takes action, any more than the right to seek reconsideration of an appellate opinion is qualitatively the same as being heard on the initial appeal.  “The essence of post-trial practice is basic fair play – notice and an opportunity to respond.”  United States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996).

Id. at 263.  The appellant established some “colorable showing of possible prejudice” by showing that he was denied the opportunity to advise the CA of his gunshot wound and his future prognosis.  Finally, the court provided some common sense guidance to military practitioners:

Where there is a failure to comply with R.C.M. 1106(f), a more expeditious course would be to recall and modify the action rather than resort to three years of appellate litigation.  The former would appear to be more in keeping with principles of judicial economy and military economy of force.

Id. at 264.

E. [Legacy] General considerations.

1. Not required to review for legal correctness or factual sufficiency.  Action is within sole discretion of CA as a command prerogative.

2. R.C.M. 1107(b)(3)(A).  Must consider: 

a) Result of trial;

b) SJA recommendation;

c) Accused’s written submissions;

d) Victim’s written submission

e) United States v. Davis, 33 M.J. 13 (C.M.A. 1991).  How “detailed” must the consideration be?  “Congress intended to rely on the good faith of the convening authority in deciding how detailed his ‘consideration’ must be.”  

f) United States v. Dvonch, 44 M.J. 531 (A.F.C.C.A. 1996).  Failure to consider two letters submitted by DC requires new review and action.  

g) United States v. Osuna, 56 M.J. 620 (C.G.C.C.A. 2001).  Record of trial returned to CA where there was no evidence that the CA considered clemency letter by DC.

h) United States v. Mooney, No. 9500238 (A.C.C.A. June 10, 1996) (unpublished).  Court determined that fax received “in sufficient time to forward it . . . through the Staff Judge Advocate to the convening authority.”  “[A]ppellant’s articulate and well-reasoned R.C.M. 1105 clemency letter through no fault of his own was not submitted to the convening authority on time.  We do not have sufficient information to determine [whose fault it was] . . . as our function is . . . not to allocate blame.  The quality of the clemency letter . . . gives rise to the reasonable possibility that a [CA] would grant clemency based upon it.  Thus . . . the appellant has been prejudiced . . .” (emphasis in original).  Action set aside and returned to CA for new PTR and action.

Practice Pointer:  Even if the government is not at fault, accused may get new SJAR and action.  Send back to CA if record not yet forwarded for appeal.

i) United States v. Roemhildt, 37 M.J. 608 (A.C.M.R. 1993).  CA and SJA not required to affirmatively state they considered recommendation of Family Advocacy Case Management Team (FACMT).  Accord United States v. Corcoran, 40 M.J. 478 (C.M.A. 1994).

j) United States v. Ericson, 37 M.J. 1011 (A.C.M.R. 1993).  There must be some tangible proof that CA saw and considered clemency materials before taking action.  United States v. Briscoe, 56 M.J. 903 (A.F.C.C.A. 2002) (post-trial affidavits from SJA and CA suffice, although not the preferred method – use an addendum).

3. R.C.M. 1107(b)(3)(B).  May consider:

a) Record of trial, personnel records of accused, and anything deemed appropriate, but if adverse to accused and from outside the record, then accused must be given an opportunity to rebut.  See United States v. Mann, 22 M.J. 279 (C.M.A. 1986); United States v. Carr, 18 M.J. 297 (C.M.A. 1984).

b) United States v. Harris, 56 M.J. 480 (C.A.A.F. 2002).  CA properly considered accused’s pre-enlistment criminal history, some of which occurred while the accused was a juvenile, history documented in the accused’s enlistment waiver document contained within his Service Record Book (SRB), a personnel record of the accused which he had access to and could review during the clemency process.  No requirement to provide the accused with prior notice that the CA would consider the document since the SRB was part of the accused’s personnel records and not “other matters.”

4. CA need not meet with accused – or anyone else.  United States v. Haire, 44 M.J. 520 (C.G.C.C.A. 1996).  CA not required to give a personal appearance appointment to the accused.  Even truer now, as this case relied on Davis, in which court had held that CA must consider videotape (no longer good law in light of 1998 statutory change).  Requirement to “consider” only pertains to “‘inanimate’ matter that can be appended to a clemency request.  We specifically reject the contention that a petitioner for clemency has a non-discretionary right to personally appear before the convening authority.”  Id. at 526.

5. R.C.M. 1107(b)(4).  No action on not guilty findings.

6. R.C.M. 1107(b)(5).  No action approving a sentence of an accused that lacks the capacity to understand or cooperate in post-trial proceedings.

F. [Legacy] SPECIAL NOTE: If all the offenses on which the convening authority is acting occurred on or after 24 June 2014, R.C.M. 1107 applies as it currently exists. However, if at least one of the offenses the CA is acting on occurred before 24 June 2014, the prior version of R.C.M. 1107 applies, except that mandatory minimum sentencing under Article 56(b) still applies to appropriate offenses. See, R.C.M. 1107 preamble. (June 2015 ed.) Under R.C.M. 1107 for the older offenses, the CA may give generally unfettered clemency for both findings and sentence.

G. [Legacy] Action on findings not required is not required for any offenses regardless of the date of the offense, but is permissible.  R.C.M. 1107(c).

1. For offenses pre-24 June 2014: The CA may continue to set aside convictions or approve lesser-included offenses without any further legal discussion, rational or reasoning.

2. For offenses occurring on or after 24 June 2014 : The CA may not dismiss a finding or approve an LIO unless the offense is a qualifying offense.  A “qualifying offense” is one where (i) the maximum punishment under the MCM does not exceed two years confinement; and (ii) the sentence adjudged at trial does not include a punitive discharge or confinement for more than six months. Additionally, offenses under Article 120, 120b, and 125 are never qualifying offenses and those convictions may never be set aside.  A rehearing may be ordered under R.C.M. 1107(e).  Finally, if the CA does in fact act to dismiss or change any finding of guilty, the CA must provide a written explanation for their reasons for such action.  See, R.C.M. 1107(c).

3. United States v. Diaz, 40 M.J. 335 (C.M.A. 1994).  “In the absence of contrary evidence, a convening authority who does not expressly address findings in the action impliedly acts in reliance on the statutorily required recommendation of the SJA, see Article 60(d) (1983), and thus effectively purports to approve implicitly the findings as reported to the convening authority by the SJA.”  Id. at 337.  See also United States v. Henderson, 56 M.J. 911 (A.C.C.A. 2002) (when faced with ambiguous or erroneous findings not expressly addressed by CA in his action, the court can either return the case to the CA for clarification (i.e., new PTR and action) or affirm only those findings of guilty that are correct and unambiguous in the PTR).

4. United States v. Lindsey, 56 M.J. 850 (A.C.C.A. 2002).  SJAR erroneously stated findings and CA implicitly approved the findings as reported by the SJA.  SJAR reported a guilty finding to Specification 4 of the Charge when in fact the accused was found not guilty of this offense.  The court only affirmed the proper findings and reduced the accused’s period of confinement from twelve months to ten months.  The court commented on the lack of attention to detail in the post-trial processing:

This case presents the court with yet another incident in which an SJA has failed to provide complete and accurate information to the convening authority, as required by R.C.M. 1106.  The regularity of these post-trial processing errors is alarming and occurs in many jurisdictions.  Most SJAR errors are the direct result of sloppiness and a lack of attention to detail exhibited by the SJA, Deputy SJA, and the Chief of Criminal Law.  Likewise, diligent trial defense counsel should identify and correct such errors whenever possible. See R.C.M. 1106(f)(4), (f)(6).  These errors reflect poorly on our military justice system and on those individuals who implement that system.  They should not occur!

Id. at 851.  In a footnote in the above-quoted language, the court referred to thirty-five cases out of nineteen jurisdictions, covering a 15-month period, with erroneous SJARs.

5. United States v. Saunders, 56 M.J. 930 (A.C.C.A. 2002).  The SJAR erroneously advised the CA that the appellant was convicted of six specifications of violating a no-contact order, as opposed to five, and adultery (i.e., Specification 1 of Charge I and Specification 2 of Additional Charge I respectively).  Applying United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998), the court found that despite the erroneous SJAR, the appellant failed to make a “colorable showing of possible prejudice to his substantial rights concerning the approved sentence.”  Id. at 936.  The erroneous findings of guilty were set aside and the affected specifications dismissed; the sentence was affirmed.

6. United States v. Ord, 63 M.J. 279 (C.A.A.F. 2006).  Appellant was convicted of seven different offenses.  However, the SJAR omitted one of the seven.  The CA approved the SJA’s recommendation on the sentence.  The ROT was then forwarded to ACCA for appellate review.  Subsequently, the command issued a “corrected” promulgating order that included the missing findings.  The ACCA set aside the CA’s action and returned the record for a new SJAR and CA’s action.  The ACCA then affirmed the findings and sentence as approved in the new CA’s action, including the forgery offense.  The CAAF held that, when the CA did not act expressly on the findings, and the SJAR omitted a finding of guilty adjudged by the court-martial, the ACCA could not presume that the CA approved the omitted findings, but could return the record for a new SJAR and action.

7. United States v. Alexander; United States v. Vanderschaaf, 63 M.J. 269 (C.A.A.F. 2006) (joint case).  The ACCA found that action taken by the CA in separate, unrelated cases did not approve findings reached by a GCM, and in both cases it ordered that language which appeared in the CMO be deleted.  The Judge Advocate General of the Army sought review.  The CAAF found that the ACCA erred.  Although the UCMJ and the MCM require the CA to take express action when he disapproved a finding, neither the UCMJ nor the MCM required a CA to take express action to approve findings.  The record in both cases was consistent with the presumption that the CA approved the findings adjudged at trial.

H. [Legacy] Action on sentence must:

1. Explicitly state approval or disapproval.

a) United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007).  The Court will not look for ambiguity where there is none.  Action said:

“In the case of . . . that part of the sentence extending to confinement in excess of 3 years and 3 months is disapproved.  The remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed.”

SJAR and addendum recommended approval of the adjudged DD and that is what the CA intended to do, but CAAF found the language of the action unambiguous in its disapproval of the DD.  The court refused to look at surrounding documents to find an ambiguity where the action appeared clear on its face. 

b) United States v. Schiaffo, 43 M.J. 835 (A.C.C.A. 1996). Action did not expressly approve the BCD, though it referred to it in “except for” executing language.  Sent back to CA for new action.  Action said:

“In the case of . . . only so much of the sentence as provides for reduction to Private E1, forfeiture of $569.00 pay per month for six months, and confinement for four months is approved and, except for the part of the sentencing extending to bad-conduct discharge, will be executed.”

See also United States v. Reilly, No. 9701756 (A.C.C.A. June 12, 1998) (unpublished); United States v. Scott, No. 9601465 (A.C.C.A. June 12, 1998) (unpublished); United States v. Politte, 63 M.J. 24 (C.A.A.F. 2006); and, United States v. Gosser, 64 M.J. 93 (C.A.A.F. 2006).

c) United States v. Klein, 55 M.J. 752 (N-M.C.C.A. 2001).  Action by CA stated:  “In the case of . . . the sentence is approved, but the execution of that part of the sentence extending to confinement in excess of 28 days was suspended for a period of 4 months from the date of trial . . . The part of the sentence extending to the bad conduct (sic) discharge will be suspended for a period of 12 months from the date of trial, at which time, unless the suspension is sooner vacated, it will be remitted without further action.”  After the appellate court acquired jurisdiction, CA attempted to withdraw the first action and replace a second wherein the punitive discharge was not suspended, stating he never intended to suspend the discharge.  Held:  “administrative oversight” as opposed to “clerical error” in CA’s action does not warrant return to the CA for a corrected action.  Additionally, any purported action by the CA after an appellate court acquires jurisdiction is a nullity.  The NMCCA distinguishes this case from United States v. Smith, 44 M.J. 788 (N-M.C.C.A. 1996), stating “[u]nlike Smith, there is nothing ‘illegal, erroneous, incomplete or ambiguous’ in the original action.”  Id. at 756.

d) United States v. Mendoza, 67 M.J. 53 (C.A.A.F. 2008).  Lower court (NMCCA) had sent the case back for a new Action because the language was ambiguous and not susceptible to interpretation.  First Action stated:  “only such part of the sentence as provides for a reduction to the grade of pay E-1, confinement for 90 days, is approved and except for the part of the sentence extending to a bad conduct [sic] will be executed.”  CA who signed original action had moved on.  His successor in command took a new action that approved the BCD.  No new SJAR was prepared, and there was no evidence the CA consulted with the original CA before action.  The CAAF holds that a “new, as opposed to a corrected” action requires a new SJAR and the opportunity for the accused to submit additional matters under R.C.M. 1105. 

2. For offenses pre-24 June 2014: The CA may continue to give clemency in any amount without any further legal discussion, rational or reasoning.

3. For offenses occurring on or after 24 June 2014 : The CA may not disapprove, commute, or suspend in whole or in part any portion of an adjudged sentence of (A) confinement for more than six months or (B) a punitive discharge. If the CA does act to disapprove, suspend, or commute any part of a sentence, the CA must provide a written explanation for their reasons for such action.  See, R.C.M. 1107(d)(1)(F). The CA may still give clemency on other parts of the sentence (i.e. reprimands, forfeitures, rank reduction), although the reasoning for such action must be in writing and attached to the record.  R.C.M. 1107(d)(1)(C).

4. CA action cannot increase adjudged sentence.

a) United States v. Jennings, 44 M.J. 658 (C.G.C.C.A. 1996).  MJ announced five month sentence, but did not expressly include pretrial confinement (PTC) credit.  After issue raised, MJ said on record that he had “considered” the eight days PTC before announcing the sentence, and the SJA recommended that the CA approve the sentence as adjudged (he did).

“Further clarification by the judge was needed to dispel the ambiguity  . . . created by his remarks.”  SJA “should have returned the record to the judge for clarification pursuant to R.C.M. 1009(d), rather than attempt to dispel the ambiguity of intent himself.”  “In any event, there is no authority whatsoever for a staff judge advocate to make an upward interpretation of the sentence, as was done in this case.”

Id. at 662.

b) United States v. Kolbjornsen, 56 M.J. 805 (C.G.C.C.A. 2002).  Appellant was sentenced to a DD, twelve months confinement, and reduction to E-1.  The pretrial agreement required the CA to suspend any confinement in excess of ten months.  At action, the CA approved “only so much of the sentence as provides for a BCD, confinement for 3 months, and reduction to E-1.”  On appeal, the court noted the ambiguity of the action and stated it had two options:  (1) return the case to the CA for a new SJAR and action to clarify the ambiguity, or (2) to construe the ambiguity itself and resolve any inconsistencies in favor of the appellant.  The court chose the latter and affirmed only so much of the sentence as provided for a BCD, confinement for three months, and reduction to E-1.  

c) United States v. Shoemaker, 58 M.J. 789 (A.F.C.C.A. 2003).  At action the first time, the CA approved only thirty days confinement of a three month sentence.  On appeal, the action was set aside and the case returned for a new SJAR and action.  In the subsequent action, the CA approved a sentence of one month.  Unfortunately, seven months out of the year contain thirty-one days resulting in a potential sentence greater than that originally approved, in violation of R.C.M. 810(d).  Rather than return the case for a third SJAR and action, the court only approved thirty days confinement.

d) United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003).  Appellant was sentenced to a BCD, ten years confinement, total forfeitures, and reduction to E-1.  On appeal, the ACCA ordered a rehearing on sentence.  On rehearing, the appellant was sentenced to a DD, six years confinement, and reduction to E-1.  The ACCA affirmed the rehearing sentence finding that under an objective standard, a reasonable person would not view the rehearing sentence as “in excess of or more severe than” the original sentence; therefore, Article 63, UCMJ, and R.C.M. 810(d)(1) were not violated.  The CAAF reversed as to sentence, finding that a DD is more severe than a BCD and no objective equivalence is available when comparing a punitive discharge with confinement.  The CAAF reduced the sentence to a bad-conduct discharge, six years confinement, and reduction to E-1.

e) United States v. Burch, 67 M.J. 32 (C.A.A.F. 2008).  Appellant was sentenced to confinement for one year, reduction to E-1, and a bad-conduct discharge.  The CA suspended all confinement in excess of 45 days.  Subsequent to his release, but before the suspension period was over, or the CA took action, appellant committed additional misconduct.  His suspension was properly vacated and he was returned to confinement.  The CA took action, which stated:  “execution of that part of the sentence adjudging confinement in excess of 45 days is suspended for a period of 12 months.”  Appellant served approximately 223 days of confinement before being released.  The CAAF held that this was illegal confinement.  “If the CA’s action is to be given effect, as required by R.C.M. 1107, attendant circumstances preceding the action may not be utilized to undermine it.”  The vacation of the suspension should have been noted in the action.

5. Pre-24 June 2014 May disapprove all or any part of a sentence for any or no reason. 

a) United States v. Bono, 26 M.J. 240 (C.M.A. 1988).  Reduction in sentence saved the case when DC found to be ineffective during sentencing.

b) United States v. Smith, 47 M.J. 630 (A.C.C.A. 1997).  At a GCM, the accused was sentenced to total forfeitures (TF), but no confinement.  Neither the DC nor the accused submitted a request for waiver or deferment, nor complained about the sentence.  Accused did not go on voluntary excess leave.  Fourteen days after sentence, TF went into effect.  At action, the CA tried to suspend all forfeitures beyond 2/3 until the accused was placed on involuntary excess leave.  Held:  CA’s attempt to suspend was invalid, because the TF was executed (at 14 days) prior to the attempted suspension.  The ACCA found the time the accused spent in the unit (5 Jul to 19 Aug) without pay was cruel and unusual punishment and directed the accused be restored 1/3 of her pay.  See also United States v. Warner, 25 M.J. 64 (C.M.A. 1987).

6. Pre-24 June 2014 IAW R.C.M. 1107(d)(2).  May reduce a mandatory sentence adjudged. Now, CA may not reduce a mandatory minimum.  R.C.M. 1107(d)(1)(D).

7. May change a punishment to one of a different nature if less severe.  United States v. Carter, 45 M.J. 168 (C.A.A.F. 1996).  CA lawfully converted panel’s BCD and twelve month sentence to twenty-four additional months’ confinement and no BCD, acting in response to request that accused be permitted to retire.  Commutation must be clemency, “not ‘merely a substitution’” of sentences, but clearly was proper here; BCD was disapproved and accused got his wish to retire, and where, importantly, he neither set any conditions on the commutation (e.g., setting a cap on confinement he was willing to endure), nor protested the commutation in his submission to the CA.  But consider the discussion to R.C.M. 1107(d)(1) that a BCD could be converted to confinement for up to one year at a special court-martial.

8. May suspend a punishment.  United States v. Barraza, 44 M.J. 622 (N-M.C.C.A. 1996).  Court approved CA’s reduction of confinement time from PTA-required forty-six months (suspended for twelve months) to fourteen months, six days (suspended for thirty-six months).  Sentence was for ten years.  Court emphasized the “sole discretionary power” of CA to approve or change punishments “as long as the severity of the punishment is not increased” (citing R.C.M. 1107(d)(1)).  Also significant that approved confinement was twenty-two months less than accused sought in his clemency petition.

9. United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).  Error for SJAR to advise CA that in order to waive automatic forfeitures at action he would have to disapprove the adjudged forfeitures.  CA could have modified the monetary amount of adjudged forfeitures and/or suspended the forfeitures for the period of waiver.  Case returned to the CA for a new SJAR and action.

10. Pre-24 June 2014 offenses: May reassess sentence.  If a CA reassesses sentence after, for example, dismissing guilty findings, the CA must do so in conformity with the requirements of United States v. Sales, 22 M.J. 305 (C.M.A. 1986).  United States v. Harris, 53 M.J. 86 (C.A.A.F. 2000).  The CA may purge any prejudicial effect if it can determine that the sentence would have been of a certain magnitude.  Further, the SJAR must provide guidance to the CA as the standard to apply in reassessing the sentence.  United States v. Reed, 33 M.J. 98 (C.M.A. 1991). 

a) United States v. Bonner, 64 M.J. 638 (A.C.C.A. 2007).  The SJAR recommended that the CA disapprove one specification without giving a reason.  The CA did so and approved the adjudged sentence.  Appellate defense alleged error and pointed to the lack of any Sales guidance on sentence reassessment in the SJAR or addendum.  The ACCA found no reason to believe the specification was disapproved because of legal error (no such allegation in R.C.M. 1105/1106 submissions) and concluded that the disapproval was an act of clemency not requiring sentence reassessment.  See United States v. Kerwin, 46 M.J. 588 (A.F.C.C.A. 1996) (holding that a pure act of clemency does not require sentence reassessment).  In a footnote, the ACCA conceded that there may be “middle ground” between pure sentence clemency and clemency recommended as a form of relief from “possible legal error” and recommended that SJAs advise CAs of the standard for sentence reassessment.

b) United States v. Taylor, 47 M.J. 322 (C.A.A.F. 1997), aff’d after remand, 51 M.J. 390 (C.A.A.F. 1999).  Discusses how to reassess a sentence if some charges are dismissed by the CA.  Disregarding the findings is not enough; must disregard the evidence too.  Remanded to the AFCCA to correctly reassess or order a re-hearing.

c) United States v. Griffaw, 46 M.J. 791 (A.F.C.C.A. 1997).  SJA incorrectly stated that the sentence reduction based on the terms of the pre-trial agreement was equal to a form of clemency.       

d) United States v. Bridges, 58 M.J. 540 (C.G.C.C.A. 2003).  Appellant was sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for twenty-two years, and a DD.  At action, the CA disapproved two specifications and approved only so much of the sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement for twenty years, and a DD.  The CGCCA held that the CA erred in attempting to reassess the sentence after dismissing two very serious specifications (indecent acts and forcible sodomy).  Although the maximum punishment for the offenses both before and after action remained the same (i.e., reduction to E-1, forfeiture of all pay and allowances, confinement for life, and a DD), the issue was whether the CA or the court could “accurately determine the sentence which the members would have adjudged for only those charges and specifications approved by the convening authority.”  Id. at 545.  The court determined that neither the CA nor the court could properly reassess the sentence in light of the modified findings, set aside the sentence and authorized a rehearing.

e) United States v. Meek, 58 M.J. 579 (C.G.C.C.A. 2003).  Appellant was sentenced to reduction to E-1, seventy-five days confinement, and a BCD.  At action, the SJA recommended disapproval of one charge based upon the PTA.  The SJA further recommended “I do not recommend that you adjust the accused’s sentence as a result of setting aside the military judge’s findings as to Charge I and its specification.  The two remaining charges to which the accused pled guilty adequately support the sentence awarded.”  Id. at 580.  The CGCCA held that the SJA erred by giving the above guidance and by failing to advise the CA that he must reassess the sentence, approving only so much of the sentence as would have been adjudged without the dismissed specification.  The CGCCA approved only so much of the sentence as provided for reduction to E-1, sixty days confinement, and a BCD.

f) United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008).  Shortly after trial, rape victim recants.  During post-trial Article 39(a) session, military judge finds that he would not have found appellant guilty of rape, nor would he have sentenced him to anything more than six months confinement, reduction and forfeitures.  CA modified findings and sentence by approving the BCD, reduction to E-1, and confinement for 206 days.  The CAAF held that CA did not properly reassess sentence.  Under no circumstances can the CA approve a sentence greater than the sentencing authority would have adjudged absent the error.

11. United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005).  Appellant was sentenced to a BCD, confinement for eight years, and reduction to E-5.  The convening authority revised the findings to address issues involving the application of the statute of limitations under Article 43, UCMJ.  The SJA recommended that the convening authority approve the adjudged sentence, subject to reducing the period of confinement from eight to five years to the cure the prejudice from the erroneous findings.  The convening authority revised the findings but only reduced the sentence to seven years.  The AFCCA affirmed the findings and sentence as modified by the convening authority.  The CAAF held that “[t]he convening authority’s action in this case did not cure the prejudice from the military judge’s failure to focus the attention of the members on the appropriate period of time under the circumstances of this case.  See Kotteakos v. United States, 328 U.S. 750, 765 (1946).  Accordingly, we shall set aside the affected findings and authorize a rehearing.”

I. [Legacy] Sentence Credits.

1. United States v. Minyen, 57 M.J. 804 (C.G.C.C.A. 2002).  Although the court recommends stating all sentence credits in the CA’s action, it is not required.  See also United States v. Gunderson, 54 M.J. 593, 594 (C.G.C.C.A. 2000) (recommending that a CA expressly state all applicable credits in the action).

2. AR 27-10, para. 5-32a (11 May 2016), states that “the convening authority will show in his or her initial action all credits against a sentence to confinement, either as adjudged or approved, regardless of the source of the credit (automatic credit for pretrial confinement under U.S. v. Allen, 17 M.J. 126 (CMA 1984), or judge-ordered additional administrative credit under U.S. v. Suzuki, 14 M.J. 491 (CMA 1983)), R.C.M. 304, R.C.M. 305, or for any other reason specified by the judge.”

J. [Legacy] Original signed and dated action must be included in the record.  See R.C.M. 1107(f)(1) and 1103(b)(2)(D)(iv).

K. [Legacy] R.C.M. 1107(f)(1).  Contents of action.  See also Appendix 16, MCM, Forms for Actions. 

L. [Legacy] If confinement is ordered executed, “the convening authority shall designate the place . . . in the action, unless otherwise prescribed by the Secretary concerned.”  R.C.M. 1107(f)(4)(C).

1. AR 27-10, para. 5-32a (11 May 2016) states that the CA does not designate a place of confinement.  AR 190-47 controls.

2. AFI 51-201, para. 9.4.  “HQ AFSFC/SFC, not the convening authority, selects the corrections facility for post-trial confinement and rehabilitation for inmates gained by HQ AFSFC/SFC [inmates not ordered to serve sentences in local correctional facilities].”

M. [Legacy] What if an error is discovered after action is taken?  R.C.M. 1107(f)(2) provides that:

1. Before publication or official notice to the accused, CA may recall and modify any aspect of action (including modification less favorable to the accused, such as adding the discharge approval language, as was required in United States v. Schiaffo, 43 M.J. 835 (A.C.C.A. 1996)).

2. If either publication or official notice has occurred, CA may only make changes that do not result in action less favorable to the accused.

3. CA must personally sign the modified action.

4. Action after appellate court has the case is a nullity unless subsequent action is directed or case is returned to the CA for further action.  United States v. Klein, 55 M.J. 752 (N-M.C.C.A. 2001).

N. [Legacy] Action potpourri.

1. McCray v. Grande, 38 M.J. 657 (A.C.M.R. 1993).  Sentence, for purposes of commutation, begins to run on date announced.

2. United States v. Foster, 40 M.J. 552 (A.C.M.R. 1994).  Court does not have to treat ambiguous action ($214 per month) as forfeiture for one month; may return to CA for clarification of intent.

3. United States v. Muirhead, 48 M.J. 527 (N-M.C.C.A. 1998).  Accused sentenced to “forfeit all pay and allowances, which is $854.40 for 2 years,” and CA approved the same.  Held:  ambiguous sentence.  CA under R.C.M. 1107(d)(1) can return case to court for clarification of ambiguous sentence; if he does not, he can only approve a sentence no more severe than the unambiguous portion.  Rather than return to CA, the NMCCA simply affirmed the unambiguous dollar amount.

O. [Legacy] Post-trial deals.  United States v. Olean, 59 M.J. 561 (C.G.C.C.A. 2002).  CA authorized to enter into post-trial deals where a rehearing is impracticable.  In the case at bar, the CA agreed to approve a sentence of no punishment, dismiss the specifications which were set aside and returned for a rehearing, process the appellant for administrative discharge, and recommend a general discharge.  In exchange, the appellant agreed to waive personal appearance before the separation board, remain on appellate leave, and waive any right to accrued pay, allowances, or travel entitlements.

XIII. Post-Trial Processing Time

A. The intent of the MJA 2016 was to reduce post-trial processing time by removing some of the administrative and even substantive requirements. For that reason, it is logical to assume that post-trial processing times will diminish significantly, rendering Moreno an artifact. However, it remains to be seen whether appellate courts continue to enforce the 120 day processing time clock or whether they in fact decrease the time, based on the other changes to the post-trial process.

B. [Legacy] Service courts have two distinct responsibilities when reviewing allegations of post-trial and appellate delay.  First, service courts may grant relief to appellants for excessive post-trial delay under their broad authority to determine sentence appropriateness under Article 66(c), UCMJ.  Second, as a matter of law, both the service courts and the CAAF may review claims of untimely review and appeal under the Due Process Clause of the Constitution using the principals announced in the case of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

C. [Legacy] From sentence to action.  An accused has a right to timely review during the post-trial process.  Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003).   

1. The old, old rule:  Dunlap v. Convening Authority, 48 C.M.R. 751 (C.M.A. 1974) (when an accused is continuously under restraint after trial, the convening authority must take action within ninety days of the end of trial or a presumption of prejudice arises).

2. The old rule:  if prejudice, relief mandated.  United States v. Banks, 7 M.J. 92 (C.M.A. 1976).

3. Back to the future:  the evolution to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). 

a) United States v. Tardif, 55 M.J. 666 (C.G.C.C.A. 2001), rev’d and remanded, 57 M.J. 219 (C.A.A.F. 2002), on remand, 58 M.J. 714 (C.G.C.C.A. 2003), aff’d, 59 M.J. 394 (C.A.A.F. 2004) (summary disposition).  The appellant was sentenced to forfeiture of all pay and allowances, reduction to E1, three years confinement and a DD (the CA only approved two years of confinement).  It took the government one year to process the record from sentencing to action and forwarding to the appellate court.  Despite the delay, the CGCCA could find no prejudice that flowed to the accused from the post-trial delay and therefore did not grant any relief.  Although the CGCCA did discuss the Army’s Collazo opinion, it concluded it was bound by the CAAF’s precedent regarding undue post-trial delay.  On appeal, the CAAF noted that relief under Article 66(c), UCMJ, unlike Article 59(a), UCMJ, does not require a predicate showing of “error materially [prejudicial to] the substantial rights of the accused” and remanded the case to the CGCCA because of the lower court’s mistaken belief that it was “constrained” by Article 59(a), UCMJ.  Applying principles of sentence appropriateness, CCAs can grant relief under Article 66(c) for unreasonable and unexplained post-trial delay that does not result in prejudice.  On remand, the CGCCA agreed with appellant that “neither United States v. Collazo, [citation omitted], nor our higher court’s decision in this case requires a showing of uniquely personal harm in order to justify a sentence reduction, rather that the delay is to be considered along with the rest of the record in determining what sentence should be approved.”  The CGCCA reduced appellant’s confinement for post-trial delay.

b) United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005).  Following his release from custody, appellant had applied for a position as a driver.  He submitted to the court his own declaration and declarations from three officials of a potential employer that stated that he would have been considered for employment or actually hired if he had possessed a DD-214, even if his discharge was less than honorable.  The employer was aware of appellant’s court martial for two specifications of unauthorized absence and two specifications of missing movement by design, in violation of Articles 86 and 87.  The CAAF held that those un-rebutted declarations were sufficient to demonstrate ongoing prejudice beyond what would have been a reasonable time for post-trial proceedings.    Whether appellant would have had a job for certain was not relevant.  The court concluded that setting aside the bad-conduct discharge is a remedy more proportionate to the prejudice that the unreasonable post-trial delay had caused.  Appellant was prejudiced by the facially unreasonable post-trial delay, which violated his right to due process.  The appropriate remedy was disapproval of the bad-conduct discharge. 

4. The current rule.  On 11 May 2006, the CAAF released United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).  The Moreno decision demonstrated that while the CAAF was not willing to return to an inflexible Dunlap-style 90-day rule, it was willing to apply heightened scrutiny and find due process violations in cases where post-trial processing crossed certain defined boundaries.  In Moreno, the CAAF announced that it would apply a presumption of unreasonable delay to any case completed after 11 June 2006 that:  (1) did not have initial action taken within 120 days of the completion of the trial; (2) was not docketed within 30 days of the convening authority’s action; or, (3) did not have appellate review completed by the Court of Criminal Appeals within 18 months of docketing.

a)  Once the post-trial delay in a case is determined to be unreasonable, the court must balance:  (1) the length of the delay against; (2) the reason for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and, (4) prejudice.  This test represented an adaptation of the Barker v. Wingo, 407 U.S. 514 (1972), test that had previously only been used to review speedy trial issues in a Sixth Amendment context.  While failure to meet the Moreno timelines triggers the Barker v. Wingo analysis, the government can still rebut the presumption of prejudice by showing that the delay was not unreasonable.

b)  When balancing the length of the delay against the other factors, no single factor is required to find that the post-trial delay constitutes a due process violation. 

c)  An appellate court must evaluate prejudice to the appellant in light of three interests:  (1) preventing oppressive incarceration pending appeal; (2) minimizing anxiety and concern over those convicted awaiting the outcome of their appeals; (3) limiting the possibility that a convicted person’s ground for appeal, and his or her defenses in case of reversal or retrial, might be impaired.

d)  In United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006), the CAAF further refined the prejudice factor by announcing that when an appellant had not shown actual prejudice under the fourth factor of the Barker v. Wingo analysis, the appellate courts could still find a due process violation when, in balancing the other three factors, the delay is “so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.”  Id. at 362.

e)  In Moreno, the CAAF suggested a non-exclusive list of relief that could include, but was not limited to:  (1) day-for-day reduction in confinement or confinement credit; (2) reduction of forfeitures; (3) set aside portions of the approved sentence including a punitive discharge; (4) set aside of the entire sentence, leaving a sentence of no punishment; (5) limitation upon the sentence that may be approved by the convening authority following a rehearing; and, (6) dismissal of the charges and specifications with or without prejudice.

f)  In United States v. Harrow, 65 M.J. 190 (C.A.A.F. 2007), the CAAF determined that even when the post-trial delay is facially unreasonable, if an appellate court is convinced that any error was harmless beyond a reasonable doubt, there is no need to do a separate analysis of each of the Barker v. Wingo factors.

    g)  Cases.

(1)  United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), on remand, No. 200100715, 2009 WL 1808459 (N-M.C.C.A. June 23, 2009) (unpublished), aff’d, 69 M.J. 36 (C.A.A.F. 2010) (summary disposition).  Appellant was tried and convicted by members of rape in violation of Article 120, UCMJ.  He was sentenced to reduction to E-1, TF, six years confinement, and DD.  On appeal, appellant asserted that he was denied due process as a result of unreasonable post-trial delay.  He was sentenced on 29 September 1999.  The 746-page Record of Trial (ROT) was authenticated 288 days later.  On 31 January 2001 (490 days after the court-martial), the CA took action.  The case was docketed at NMCCA 76 days later.  The NMCCA granted 18 defense motions for enlargement for time to file an appellate brief.  From the end of his court-martial until the NMCCA rendered a decision, it took 1,688 days.  In conducting an analysis of the case, the CAAF adopted the four factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), which are:  (1) length of the delay; (2) reasons for the delay; (3) assertion by Appellant of the right to a timely review and appeal; and (4) prejudice suffered by Appellant.  During the post-trial process, each of these factors will be analyzed based on the circumstances.  More importantly for practitioners, the CAAF established new post-trial processing guidelines as follows:  (1) from sentence to action, the government has 120 days; (2) from action to docketing at the Court of Criminal Appeals, the government has 30 days; and, (3) from docketing at the Court of Criminal Appeals to appellate decision, the Court has 18 months to render a decision.  Failure to meet these processing timelines serves to trigger the four-part Barker analysis.  However, the government can rebut the presumption by showing that the delay was not unreasonable.

(2) United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006).  Appellant, contrary to his pleas, was convicted of rape and assault consummated by battery.  On August 13, 1998, he was sentenced to reduction to E-1, forfeiture of all pay and allowances, confinement for twelve years and a dishonorable discharge.  The transcript was 943 pages and the ROT was composed of eleven volumes.  It took 2,240 days from the end of trial until the issuance of the NMCCA’s decision, a period of over six years.

The NMCCA decision was set aside.  The CAAF held that the appellant was denied his due process right to speedy post-trial and appellate review.  They set forth the analytical framework using the four Barker v. Wingo factors of:  (1) length of delay; (2) reasons for the delay; (3) assertion of the right to timely review and appeal; and (4) prejudice.  The court determined that the first three factors weighed heavily in favor of the appellant.  Moreover, CAAF ruled that where there is no finding of Barker prejudice, they will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of fairness and integrity of the military justice system.  See also United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006).

(3)  United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006).  A 1,794 day delay from sentence to first-level appellate review violated the appellant’s right to speedy post-trial relief because he suffered two forms of actual prejudice.  First, he was denied timely review of a meritorious claim of legal error (an instructional error made at trial).  Second, the lack of “institutional vigilance” by the government resulted in the loss of his right to free and timely professional assistance of detailed military appellate defense counsel.  The CAAF granted relief in the form of cap on sentence at a rehearing ordered as a result of the instructional error.

(4)  United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006).  Despite not showing prejudice under the fourth prong of the Barker analysis, the court found that a 2,031-day delay from trial to first-level appellate review was “so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system.”  The CAAF granted relief in the form of a cap on sentence upon rehearing (the case had already been returned for rehearing on another basis).

(5)  United States v. Simon, 64 M.J. 205 (C.A.A.F. 2006).  The government’s gross negligence in not mailing a 36-page ROT to the first-level appellate court for 572 days was a violation of the appellant’s right to speedy post-trial review.  The CAAF returned the case to the NMCCA with direction that it may grant relief under its broad sentence appropriateness authority under Article 66(c) or, as a matter of law, under the Due Process Clause.

(6)  United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007).  The CAAF specifically rejects the NMCCA’s attempt to create a generalized “excludable delay” concept similar to that used under R.C.M. 707(c) to examine pretrial speedy trial issues. 

(7)  United States v. Young, 64 M.J. 404 (C.A.A.F. 2007).  The CAAF considered the circumstances and the entire record, and found that 1,637 days from trial through completion of ACCA review was harmless beyond a reasonable doubt.

(8)  United States v. Roberson, 65 M.J. 43 (C.A.A.F. 2007).  The CAAF found that under the facts of this case, 1,524 days from trial to NMCCA review was harmless beyond a reasonable doubt.

(9)  United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007).  The NMCCA, in assessing the “unreasonable and unconscionable” post-trial delay in this case, did not approve the BCD.  Sentence at trial was a BCD, confinement for four months, and reduction to E-1.  CA’s action suspended BCD and all confinement in excess of 90 days.  The CAAF found that this was not meaningful sentence relief because the BCD had already been remitted at the end of the suspension period. 

(10)  United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  The CAAF found that under the facts of this case, 1,867 days from trial to NMCCA review was harmless beyond a reasonable doubt.

(11)  United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006).  The CAAF found that despite the six-year delay in appellate review in this case, any relief that would be actual and meaningful would be “disproportionate to the possible harm generated from the delay.”  No relief was warranted or granted.

(12)  United States v. Yammine, 67 M.J. 717 (N-M.C.C.A. 2009).  The NMCCA was able to assume, without deciding, that the appellant was denied speedy post-trial processing (214 days from sentencing to CA Action).  The NMCCA then found that there was no prejudice and conclude that the error was harmless beyond a reasonable doubt.

(13)  United States v. Bush, 68 M.J. 96 (C.A.A.F. 2009).  Appellant’s case file was “apparently lost in the mail for over six years.”  It took over seven years to review a 143-page guilty plea.  The CAAF finds this to be facially unreasonable.  On the fourth Barker v. Wingo prong, the CAAF held that the appellant’s unsupported affidavit that he was denied employment at a store in Alabama was insufficient to establish prejudice.  The CAAF holds that Allende does not shift the burden to him to establish that the due process violation was not harmless beyond a reasonable doubt.  The burden remains upon the government.  However, in an unsubstantiated affidavit case, the government’s burden of proving any due process violation was harmless beyond a reasonable doubt will be “more easily attained.”

(14)  United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009).  Appellant asserted that the eight-year delay from the announcement of sentence until the NMCCA rendered its original opinion violated his due process rights.  He submitted an unsupported affidavit claiming that he averaged less than $35,000 a year in annual income since he began his appellate leave, even though persons trained as he was normally earned between $79,000 and $95,000.  Citing Bush, the CAAF held that there was no prejudice under the fourth Barker v. Wingo prong, and that the unsupported affidavit of the appellant allowed the government to more easily demonstrate that any violation of his due process right was harmless beyond a reasonable doubt.

(15)  United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).  More than eight-year delay from the announcement of sentence until the NMCCA rendered its original opinion violated the appellant’s due process rights.  However, unsupported (and belated) affidavit claiming that his inability to travel due to his appellate leave status do not establish actionable harm arising from any delay.  The CAAF held that under the totality of the circumstances, the post-trial delay was harmless beyond a reasonable doubt.  Due to the lack of convincing evidence of prejudice in the record, the court will not presume prejudice from the length of the delay alone.

(16)  United States v. Mullins, 69 M.J. 113 (C.A.A.F. 2010).  Convening authority did not take action for 363 days.  After docketing, 448 days passed until the first contact between appellate defense counsel and the appellant.  Over the course of the appeals, appellant had four separate appointed attorneys.  Appellant also filed writs and motions pro se, including complaints about the delay in the appellate process.  Appellant was eventually released from confinement.  Two months later, he was allegedly denied unemployment insurance because he was on appellate leave and did not have a DD-214.  The CAAF skipped over most of the analysis and went right to the lack of prejudice.  The appellant had three assertions of prejudice:  1)  no unemployment benefits due to the lack of a DD-214; 2)  anxiety because he had to register as a sex offender; and, 3)  a timely appeal would have allowed him to seek legal custody of his children.  The CAAF dismissed the latter two arguments since the appellant did not prevail on the merits of his appeal.  Turning to the unemployment benefits, the CAAF held that while this may be prejudicial, it was not necessarily so in this case.  The appellant provided no affidavits or direct proof that a person in appellant’s situation would have been eligible for unemployment benefits.  Unlike United States v. Jones, 61 M.J. 80 (C.A.A.F. 2004), where the appellant provided affidavits from potential employers, this case was lacking of such proof of prejudice.  Absent prejudice, the post-trial delay was harmless beyond a reasonable doubt.  The CAAF denied relief.

(17)  United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011).  The court addressed the eleven-year delay between his conviction and the lower court decision (substantially due to a long USACIL investigation into a forensic chemist that worked on this case), and the appellant’s claims that he was prejudiced because the government destroyed the physical evidence and that he was denied United States citizenship due to his conviction.  The court assumed that there was error and proceeded directly to the conclusion that the delay was harmless beyond a reasonable doubt.  The court had not found merit in the substantive appeal, so the claims of prejudice were harmless. 

(18)  United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2011).  The government took 243 days from trial to convening authority action in this case. Much of this time was devoted to the record of trial. It took the court reporters 82 days to produce the record of trial, and it took the trial counsel 80 days to conduct errata on the record of trial. The remaining 81 days were spread out over the remaining steps in the post-trial process. In a 3-2 decision, the majority of the court found that the accused was denied his due process right to a speedy post-trial review and remanded the case to the AFCCA for appropriate relief.  The court made note in dicta, however, that the government’s argument that the delay was “only” 123 days because the Moreno standard of 120 days should not count against the government was dismissed outright.  The court made special note that the clock begins to run on the day that the trial is concluded and stops on the date of action. (Note: This point was specifically agreed to by the dissent, making this “dicta holding” a 5-0 part of the decision.)  The primary analysis revolved around prejudice, and more specifically, oppressive incarceration pending appeal.  The appellant’s original maximum release date (MRD) was March 25, 2012.  After the AFCCA lowered his sentence to two years confinement, his MRD was March 25, 2010.  The AFCCA decision was released on May 7, 2010, and the appellant was released on May 14, 2010. This amounted to 51 extra days in confinement that would not have been served had the government taken action within 120 days.  The CAAF found that the government violated the appellant’s due process rights to a speedy post-trial review.  The dissent found no due process violation and would have affirmed the AFCCA decision.  The dissent spent time discussing that a presumptively unreasonable delay is necessarily dependent on the type of case.  Overall, the dissent would not find a 243 day period from trial to action to be prejudicial under the facts and circumstances of this case, and as a result, deny relief on that basis. Even assuming prejudicial delay, the dissent would still refuse to grant relief on the grounds that oppressive incarceration was speculative at best.  There is no guarantee that the AFCCA decision would have been released in the same amount of time, even if the government would have taken less than 120 days to action.  Even barring that, there is no guarantee that the AFCCA would have reduced the appellant’s sentence to confinement by such a large amount had there been no post-trial delay in this case.

5. The ACCA and the exercise of its Article 66, sentence appropriateness authority – prejudice not required for relief from post-trial delay.

a) United States v. Collazo, 53 M.J. 721 (A.C.C.A. 2000).  The ACCA came up with a new method for dealing with post-trial processing delay.  In Collazo, the court granted the appellant four months off of his confinement because the government did not exercise due diligence in processing the record of trial.  The court expressly found no prejudice.

b) United States v. Bauerbach, 55 M.J. 501 (A.C.C.A. 2001).  The only allegation of error was undue delay in the post-trial process. Defense sought relief in accordance with Collazo.  Applying Collazo, the ACCA found that the government did not proceed with due diligence in the post-trial process when it took 288 days to process a 384-page record of trial.  Although no prejudice was established, the court granted relief under its Article 66, sentence appropriateness authority reducing confinement by one month.  The court did provide valuable guidance to SJAs and Chiefs of Justice regarding what might justify lengthy post-trial delay (remembering that the court will test whether the government has proceeded with due diligence in the post-trial process based on the totality of the circumstances).  “Acceptable explanations may include excessive defense delays in the submission of R.C.M. 1105 matters, post-trial absence or mental illness of the accused, exceptionally heavy military justice post-trial workload, or unavoidable delays as a result of operational deployments.  Generally, routine court reporter problems are not an acceptable explanation.”  Bauerbach, 55 M.J. at 507.

c) United States v. Delvalle, 55 M.J. 648 (A.C.C.A. 2001).  Ten months to prepare 459-page ROT was too long; sentence reduced by two months.

d) United States v. Maxwell, 56 M.J. 928 (A.C.C.A. 2002).  Appellant was convicted at a GCM of desertion terminated by apprehension and wrongful appropriation of a motor vehicle.  The adjudged and approved sentence was confinement for five months and a BCD.  On appeal, appellant alleged undue delay in the post-trial processing of her case.  Held:  fourteen months from trial to action in a case where the ROT is only 384 pages is an excessive delay that warrants relief under Collazo and Bauerbach.  Note:  appellant failed to cite any prejudice resulting from the delay, however, the ACCA, in exercise of its Article 66, UCMJ, sentence appropriateness authority affirmed the findings and reduced the period of confinement from five to four months.  See also United States v. Paz-Medina, 56 M.J. 501 (A.C.C.A. 2001) (one year delay in post-trial processing of 718-page ROT unreasonable and indicates a lack of due diligence).  United States v. Hutchison, 56 M.J. 756 (A.C.C.A. 2002) (419 day delay from trial to action in an 81-page ROT case is unreasonable – 3-month confinement reduction despite the lack of prejudice to the accused).

e) United States v. Stachowski, 58 M.J. 816 (A.C.C.A. 2003).  Delay of 268 days between sentence and action was not excessive and did not warrant relief for dilatory post-trial processing.  Applying a totality of circumstances approach, the court considered the following:  that the CA reduced the appellant’s confinement by thirty days because of the post-trial delay; while processing the appellant’s case, the installation only had one court reporter; the lone reporter doubled as the military justice division NCOIC; the backlog of cases awaiting transcription was significant; and the cases were transcribed on a “first in, first out” basis.  Id. at 818. 

f) United States v. Bodkins, 60 M.J. 322 (C.A.A.F. 2004).  The CAAF rejected the ACCA’s conclusion that the accused is required to ask for timely post-trial processing, and that failure to do so waived any right to relief.  The accused failed to object to dilatory post-trial processing in guilty plea case with a 74-page record of trial (ROT) (i.e., 252 days from sentence to action; 412 days from sentence to receipt of ROT by the ACCA).  The CAAF noted that the responsibility to complete post-trial processing in a timely fashion lies with the CA and is not dependent on an accused’s request.  The CAAF did, however, observe that the absence of a request from the defense is one factor a reviewing court may consider in assessing the impact of any delay in a particular case. 

g) United States v. Garman, 59 M.J. 677 (A.C.C.A. 2003).  Allegations of dilatory post-trial processing will be examined on a case-by-case basis applying a totality of the circumstances approach.  Court refuses to adopt a bright line rule regarding post-trial delay.  Held:  appellant was not entitled to relief despite a post-trial delay of 248 days from sentence to action (i.e., 329 days less 81 days attributable to the defense; the military judge’s time to authenticate the record was government time).  The factors the court considered were as follows:  defense counsel’s objection to the post-trial delay was “dilatory,” occurring at day 324; after the defense objected, the government acted on the case expeditiously (i.e., in five days); although unexplained, the delay did not exceed 248 days; slow post-trial processing was the only post-trial error; and, the appellant failed to allege any prejudice or harm from the delay.  Most significant in the court’s decision was the defense counsel’s lack of timely objection to the post-trial processing.

h) United States v. Banks, 75 M.J. 746 (A.C.C.A. 2016).  The ACCA denies Government claim that delay should be attributed to dilatory Defense action.  The Court points out that Art. 60, UCMJ, and R.C.M. 1105, provide the Defense with just 20 days to submit post-trial matters.  Any time past this 20 day allowance will be charged against the Government’s processing time.

XIV. Suspension of Sentence.  Article 71, UCMJ; R.C.M. 1108/R.C.M. 1107

A. This rule will not change much under the MJA 2016. Some of the language will be updated to reflect other changes in the rules.  The rule requires the conditions of any suspension to be specified in writing, served on the accused, and receipted for by the probationer.  United States v. Myrick, 24 M.J. 792 (A.C.M.R. 1987) (there must be substantial compliance with R.C.M. 1108).  See:

1. AR 27-10, para. 5-35 (11 May 2016);

2. JAGMAN, section 0158; and,

3. AFI 51-201, para. 9.23.

B. Power of the CA to create conditions.

1. United States v. Cowan, 34 M.J. 258 (C.M.A. 1992).  The accused asked the CA for a method by which she could serve her confinement and still support her 6-year-old child.  CA approved the sentence, but suspended for one year confinement in excess of six months and forfeitures in excess of $724.20, suspension of forfeitures conditioned upon: 

a) The initiation of an allotment payable to the daughter’s guardian of $278.40, for the benefit of the girl; and

b) The maintenance of the allotment during the time the accused is entitled to receive pay and allowances.

Held:  Permissible.  Note:  court recognizes inherent problems; recommends careful use of such actions.

2. United States v. Schneider, 34 M.J. 639 (A.C.M.R. 1992), aff’d, 38 M.J. 387 (C.M.A. 1993).  The accused asked for assistance in supporting his dependents.  The ACMR upheld CA’s suspension of forfeitures in excess of $400.00 on conditions that the accused:

a) Continue to claim on W-4, as long as he can legitimately do so, single with 2 dependents; and

b) Initiate and maintain allotment to be paid directly to spouse in amount of $2,500.

C. Period of suspension must be reasonable; conditions must not be “open-ended” or “unachievable.”

1. Limited by AR 27-10, para. 5-35 (11 May 2016), on a sliding scale from three months in a SCM to two years or the period of unexecuted portion of confinement, whichever is longer, in a GCM.

2. Spriggs v. United States, 40 M.J. 158 (C.M.A. 1994).  Uncertain and open-ended period of time required to fulfill one of the conditions (self-financed sex offender program) made the period of suspension of the discharge and reduction in grade “unreasonably long.”  The CMA, especially Judge Cox, signals approval for parties’ “creative” and “compassionate” efforts.

3. United States v. Ratliff, 42 M.J. 797 (N-M.C.C.A. 1995).  Eleven years’ probation not unreasonably long under the circumstances (though this extended suspension period may be barred in the Army by AR 27-10).

4. United States v. Koppen, 39 M.J. 897 (A.C.M.R. 1994).  Suspension of period of confinement in conjunction with an approved discharge should coincide with serving the unsuspended portion of confinement.  

5. United States v. Wendlandt, 39 M.J. 810 (A.C.M.R. 1994).  Directing that suspension period begin on date later than action is not per se improper.

D. Vacation of Suspension of Sentence.  Article 72, UCMJ; R.C.M. 1109. 

1.  The rule sets forth the procedural and substantive requirements for vacating a suspended sentence. It authorizes immediate confinement pending the vacation proceedings, if under a suspended sentence to confinement.  See Appendix 18, MCM. 

2.  United States v. Connell, 42 M.J. 462 (C.A.A.F. 1995).  Appellant challenged the vacation of his suspended bad-conduct discharge because the hearing officer, his special court-martial convening authority (as required by R.C.M. 1109(d)), had imposed nonjudicial punishment on him for the same offense that caused the vacation of his suspended bad-conduct discharge.  The CAAF held that this did not make the special court-martial convening authority too personally interested to be a neutral and detached hearing officer as required by R.C.M. 1109.

3.  United States v. Miley, 59 M.J. 300 (C.A.A.F. 2004).  Error for the hearing officer (i.e., SPCMCA) in a vacation of suspended punishment situation to refrain from making findings of fact on whether a basis for vacation existed.  The hearing officer’s decision, pursuant to R.C.M. 1109, must include an evaluation of the contested facts and a determination of whether the facts warrant vacation.  A decision based solely on equitable grounds is improper.  Error for the GCMCA to vacate the suspended punishment when the hearing officer failed to comply with R.C.M. 1109.  Held:  vacation action set aside and returned to the GCMCA for yet another (a third vacation hearing) or reinstatement of the terms of the original pretrial agreement.  Note:  3-2 decision with J. Baker and C.J. Crawford dissenting.  

XV. Execution of Sentence.  UCMJ, Article 71, UCMJ; R.C.M. 1113/R.C.M. 1206

A. This rule will not change under the MJA 2016.

B. A sentence must be approved before it is executed (but confinement, forfeitures, and reduction may be carried out before ordered executed).

C. Confinement, unless deferred is immediate.  Forfeitures, both automatic and adjudged, and reduction, unless deferred, take effect fourteen days after sentence is announced or upon action, whichever is earlier.

D. The CA’s initial action may order executed all punishments except a DD, BCD, dismissal or death.

E. A Dishonorable Discharge (DD) or Bad-Conduct Discharge (BCD) may be ordered executed only after a final judgment within the meaning of R.C.M. 1209 has been rendered in the case.  If on the date of final judgment, a Servicemember is not on appellate leave and more than six months have elapsed since approval of the sentence by the CA, before a DD or BCD may be executed, the officer exercising GCM jurisdiction over the Servicemember shall consider the advice of that officer’s SJA as to whether retention would be in the best interest of the service.  Such advice shall include the findings and sentence as finally approved, the nature and character of duty since approval of the sentence by the CA, and a recommendation whether the discharge should be executed.

1. United States v. Estrada, 68 M.J. 548 (A.C.C.A. 2009), aff’d, 69 M.J. 45 (C.A.A.F. 2010).  Purported honorable discharge given before bad-conduct discharge could be executed was void.  AR 27-10, para. 5-16 (11 May 2016) automatically voided any purported discharge because the honorable discharge occurred prior to initial action.

2. United States v. McPherson, 68 M.J. 526 (A.C.C.A. 2009), aff’d, 68 M.J. 408 (C.A.A.F. 2009) (summary disposition).  Purported honorable discharge given before bad-conduct discharge could be executed was not void and remits any approved bad-conduct discharge.  The honorable discharge in this case occurred after initial action (after a prior honorable discharge issued before initial action was revoked as void).

3. United States v. Watson, 69 M.J. 623 (A.C.C.A. 2010).  Prior to CA Action, the appellant, a reserve officer, was released from active duty (REFRAD).  After CA Action that approved her dismissal, she received an honorable discharge.  Because the proper authority (Commander, HRC, St. Louis) voided the erroneous honorable discharge, the dismissal was not remitted.

4. United States v. Watson, 69 M.J. 415 (C.A.A.F. 2011).  On appeal from the above case, the CAAF (in a 3-2 decision) overturned the decision by the ACCA and held that the administrative honorable discharge was validly issued, and therefore remitted the adjudged dismissal.

5. United States v. Brasington, No. 20060033, 2010 WL 3582596 (A.C.C.A. Sept. 13, 2010) (unpublished).  Purported honorable discharge given by reserve component of Human Resources Command (Soldier was an active duty Soldier, not reserve) was issued in error and withdrawn by the same command after a request from the Personnel Control Facility.  The ACCA held that the reserve component of HRC did not have the authority to discharge the appellant, and his discharged was voidable.

6. United States v. Tarniewicz, 70 M.J. 543 (N-M.C.C.A. 2011).  The convening authority action stated, in relevant part, “In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.  Pursuant to Article 71, UCMJ, the punitive discharge will be executed after final judgment.”  The CA’s action, to the extent that it ordered the BCD executed, is a legal nullity.  See United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009).  The court started by stating that the action did not follow the recommended forms for action in Appendix 16, MCM.  However, Article 71, UCMJ, which states in relevant part, “if a sentence extends to . . . bad-conduct discharge . . . that part of the sentence extending to . . . bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings.”  This means that in a case reviewed by a CCA, the BCD could not be executed until appellate review is final.  The court held that the language in the CA’s action could be interpreted two ways:  1) the CA attempted to direct the execution of the BCD; or 2) mere commentary on a possible future event – that being affirmance of the case on appeal.  In either case, the court held that the language has no effect.  Article 71, UCMJ does not allow it.

F. Dismissal of a commissioned officer, cadet or midshipman may be approved and ordered executed only by the Secretary concerned or such Under Secretary or Assistant Secretary as the Secretary concerned may designate.

G. Death.  A punishment of death may be ordered executed only by the President.

XVI. [legacy] Promulgating Orders.  Article 76, UCMJ; R.C.M. 1114

A. Promulgating orders will disappear under the MJA 2016. The Entry of Judgment will take its place.

B. A summary of the charges and specifications is authorized.  See MCM, Appendix 17.  See also United States Army Court of Criminal Appeals, Office of the Clerk of Court, Post Trial Handbook (2009).

C. The specifications and findings in the promulgating order need to sufficiently apprise a third party of the specific offenses that the accused was tried on.  Stating “AWOL” without more is defective because it lacks sufficient specificity to prevent against subsequent prosecution for the same offense.

1. United States v. Glover, 57 M.J. 696 (N-M.C.C.A. 2002).  R.C.M. 1114(c) requires that the charges and specifications either be stated verbatim or summarized.  The promulgating order in this case did neither, providing “no useful information about the offenses” the appellant was convicted of except for the number of the UCMJ Article that was violated.  Id. at 697.  Held:  the promulgating order failed to comply with R.C.M. 1114(c) and absent a verbatim summary of the specification, a “meaningful summary” must be provided.  Id. at 698.  The court provided relief in its decretal paragraph, affirming the findings and sentence and ordering that a supplemental promulgating order be issued in compliance with its decision.

2. United States v. Suksdorf, 59 M.J. 544 (C.G.C.C.A. 2003).  Promulgating order that omits suspension of confinement in excess of 150 days and incorrectly reflects the pleas and findings at trial is erroneous.  Similarly, an action which fails to reflect a required suspension of confinement is erroneous.  Despite these errors, the appellant failed to allege any prejudice since he was released from confinement at the appropriate time and did not serve any confinement in excess of the required 150 days. Although Article 66, UCMJ, “does not provide general authority for a court of criminal appeals to suspend a sentence, [the CAAF has recognized a service court’s] authority to do so when a convening authority failed to comply with the terms of a pretrial agreement requiring suspension of some part of a sentence.”  Id. at 547.  As for the lack of attention to detail in the post-trial processing of the case, the CGCCA noted that post-trial processing is “not rocket science, and careful proof-reading of materials presented to the convening authority, rather than inattention to detail, would save time and effort for all concerned.”  In affirming the findings and sentence, the CGCCA suspended confinement in excess of 150 days and directed the CA to issue a new promulgating order.

XVII. Ineffective Assistance of Counsel

A. United States v. Lewis, 42 M.J. 1 (C.A.A.F. 1995).  Counsel’s refusal to submit handwritten letter as part of post-trial matters was error.  Counsel may advise client on contents of post-trial matters but final decision is the client’s.  The CAAF rejects the ACCA’s procedures for handling IAC allegations, originally set out in United States v. Burdine, 29 M.J. 834 (A.C.M.R. 1989).  Trial defense counsel should not be ordered to explain their actions until a court reviews the record and finds sufficient evidence to overcome the presumption of competence.

B. United States v. Burdine, 29 M.J. 834 (A.C.M.R. 1989).  Two key points:

1. When the accused specifies error in his request for appellate representation or in some other form, appellate defense counsel will, at a minimum, invite the attention of the CCA to those issues and it will, at a minimum, acknowledge that it has considered those issues and its disposition of them.

2. Guidelines for resolving IAC allegations:

a) Appellate counsel must ascertain with as much specificity as possible grounds for IAC claim.

b) Appellate defense counsel then will allow the appellant the opportunity to make his assertions in the form of an affidavit (explaining the affidavit is not a requirement, but also pointing out that it will “add credence” to his allegations).

c) Appellate defense counsel advises the accused that the allegations relieve the DC of the duty of confidentiality with respect to the allegations.

d) Appellate government counsel will contact the DC and secure affidavit in response to the IAC allegations.

C. United States v. Dresen, 40 M.J. 462 (C.M.A. 1994).  Counsel’s request, in clemency petition, for punitive discharge was contrary to wishes of accused and constituted inadequate post-trial representation.  Returned for new PTR and action.

D. United States v. Pierce, 40 M.J. 149 (C.M.A. 1994).  Factual dispute as to whether DC waived accused’s right to submit matters to the CA.  Held:  where DC continues to represent accused post-trial, there must be some showing of prejudice before granting relief based on premature CA action.  Any error by failing to secure accused’s approval of waiver was not prejudicial in this case.

E. United States v. Aflague, 40 M.J. 501 (A.C.M.R. 1994).  Where there is no logical reason for counsel’s failure to submit matters on behalf of an accused and where the record glaringly calls for the submission of such matters, the presumption of counsel effectiveness has been overcome and appellate court should do something to cleanse the record of this apparent error.

F. United States v. Robertson, 39 M.J. 211 (C.M.A. 1994).  Defense counsel submitted no post-trial clemency/response documents.  Accused did not meet burden of showing that counsel did not exercise due diligence.

G. United States v. Carmack, 37 M.J. 765 (A.C.M.R. 1993).  Defense counsel neglected to contact accused (confined at USDB) regarding post-trial submissions.   Court admonished all defense counsel to live up to post-trial responsibilities; also, admonished SJAs and CAs to “clean up the battlefield” as much as possible. 

H. United States v. Sanders, 37 M.J. 628 (A.C.M.R. 1993).  Court unwilling to adopt per se rule that DCs must submit post-trial matters in all cases.

I. United States v. Jackson, 37 M.J. 1045 (N.M.C.M.R. 1993).  Since clemency is sole prerogative of CA, where defense counsel is seriously deficient in post-trial representation, court reluctant to substitute its judgment for that of CA.

J. United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001).  IAC in submitting three post-trial documents which were not approved or reviewed by appellant and which seriously undermined any hope of getting clemency; the CAAF also found IAC in counsel’s trial performance.

K. United States v. Key, 57 M.J. 246 (C.A.A.F. 2002).  Without holding, the CAAF hints that counsel may be ineffective if they fail to advise the client on his post-trial right to request waiver of forfeitures for the benefit of his dependents.

L. United States v. Starling, 58 M.J. 620 (N-M.C.C.A. 2003).  The appellant was not denied post-trial effective assistance of counsel by his counsel’s failure to submit clemency matters.  The court went on to establish a prospective standard for handling IAC allegations resulting from a failure to submit evidence on sentencing or during post-trial:

[A]bsent a clear indication of inaction by the defense counsel when action was compelled by the situation, future claims of inadequate representation for failure to exercise sentencing rights or post-trial rights will not be seriously entertained without the submission of an affidavit by the appellant stating how counsel’s inaction contrasted with his wishes.  If the claim involves the failure to submit matters for consideration, the content of the matters that would have been submitted must be detailed.

Id. at 623.

M.Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003).  Article 66, UCMJ, and Due Process entitle appellants to timely post-trial and appellate review.  In so holding, the court noted the following: “the standards for representation of servicemembers by military or civilian counsel in military appellate proceedings are identical” and the “duty of diligent representation owed by detailed military counsel to servicemembers is no less than the duty of public defenders to indigent civilians.”  Id. at 38-39.  Finally, the differences between the military justice system as compared to the civilian system, to include the [military] appellate courts’ unique fact finding authority, compel even “greater diligence and timeliness than is found in the civilian system.”  Id. at 39.  See also United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003) (counsel have a duty to aggressively represent their clients before military trial and appellate courts, late filings and flagrant or repeated disregard for court rules subject the violator to sanctions).  Id. at 43.