MILITARY JUSTICE PERSONNEL: Staff Judge Advocate: Post-Trial Recommendation

2020 (October Term)

United States v. Chandler, 80 M.J. 425 (one of the goals of the UCMJ is to assure the accused a thoroughly fair and impartial review of his case; towards that goal, Article 6(c), UCMJ, says in pertinent part that no person who served as trial counsel in a case may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case; a person does not need to be officially detailed as trial counsel in order to act as trial counsel; rather, a person will be disqualified from acting as the SJA if that person performed the duties of a disqualifying position; an SJA may become ineligible when (1) he or she displays a personal interest or feeling in the outcome of a particular case, (2) there is a legitimate factual controversy with defense counsel, or,(3) he or she fails to be objective, such that it renders the proceedings unfair or creates the appearance of unfairness).

(in this case, where trial counsel inserted into the PTA the provision that appellant was required to enter into a reasonable stipulation of fact, the SJA, as legal advisor to the convening authority, was empowered to advise the convening authority regarding whether this condition of the PTA was met; in this regard, it was not inappropriate for the SJA to directly call and inform defense counsel that he would advise the convening authority not to accept the PTA unless appellant agreed to stipulate to the multiple uses of cocaine and marijuana reflected in his confession, especially where trial counsel and the defense paralegal were part of this conversation and trial and defense counsel still had the ability to decide how to handle the stipulation at trial and in presentencing proceedings; the SJA’s pretrial actions did not transform him into a trial counsel, and thus, did not disqualify him under Article 6(c) from advising the convening authority on post-trial matters).

(where a legitimate factual controversy exists between the staff judge advocate and the defense counsel, the staff judge advocate must disqualify himself or herself from participating in the post-trial recommendation).

(an SJA may be disqualified if he or she has a personal interest or feeling in the outcome of a particular case; however, in this case, the fact that the SJA sought the inclusion of appellant's confession in the stipulation does not demonstrate a personal rather than a professional interest in the case).

(in this case, where the defense counsel claimed that the SJA was disqualified post-trial from further advising the convening authority because of the his pretrial actions, the mere fact that an SJA opined on the merits of his own disqualification in the addendum to the SJAR did not itself reflect a personal interest in the case; an SJA must determine whether he or she is disqualified; standing alone, the mere fact that an SJA is required to respond to an allegation that he or she is disqualified cannot be disqualifying itself; to rule otherwise would empower parties to unilaterally determine whether a duly competent authority remains eligible to address a legal issue).

(the SJA’s omission of mitigating factors in his SJAR does not demonstrate a disqualifying personal interest in the case; SJAs are not required to include mitigating information in their SJARs). 

2010 (September Term)

United States v. Hull, 70 M.J. 145 (in view of the potential impact of newly discovered evidence on appellate consideration of a case, the SJA or the convening authority may find it useful to apply Article 73 and RCM 1210 criteria as a means of addressing such information early in the post-trial process). 

(prior to acting on the results of a general court-martial and certain special courts-martial, the convening authority must consider the SJA’s recommendation prepared under RCM 1106; although the SJA is not required to examine the record for legal errors, the SJA must state whether corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted by the defense under RCM 1105 or when otherwise deemed appropriate by the staff judge advocate; the SJA’s response to legal errors raised by the defense may consist of a statement of agreement or disagreement with the matter raised by the accused; an analysis or rationale for the SJA’s statement, if any, concerning legal errors, is not required; although not required, an analysis of legal issues raised by the defense may facilitate resolution of legal issues at the trial level, thereby conserving appellate resources). 

(where the defense in this case submitted a post-trial request for a rehearing invoking the new trial criteria of RCM 1210 and the SJA then proceeded to address the defense request on the terms raised by the defense, in that context, it was not inappropriate for the SJA to apply the criteria set forth in RCM 1210 by analogy to the rehearing request; although the SJA might have added further information concerning the distinction between a “new trial” ordered during appellate review under Article 73, and a “rehearing” ordered by a convening authority under Article 60, omission of that information did not constitute error in the context of the defense request). 

(when advising the convening authority on a defense post-trial request for a rehearing based on newly discovered evidence that a witness had been told by the alleged rape victim that her encounter with appellant had been consensual, the SJA was not obligated to inform the convening authority about the possibility of ordering a post-trial Article 39(a) session for the purpose of compelling that witness or any other to appear and give sworn testimony, where there was an absence of a defense request for such a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense).  

(in light of the nature of the defense’s request for a rehearing based on newly discovered evidence and the absence of a defense request for a post-trial Article 39(a) session, the SJA did not misadvise the convening authority by noting that the newly discovered evidence fell within the parameters of RCM 1210, but then recommending against granting a rehearing; viewed in its entirety, the SJA’s recommendation did not take the position that a new trial was required under the criteria set forth in RCM 1210; instead, the recommendation made clear that the SJA was advising the convening authority that the defense evidence could be considered under the criteria of RCM 1210, but that the nature of the evidence did not warrant a new trial under those criteria; as such, the convening authority did not abuse her discretion in approving the findings and sentence and not ordering a rehearing). 

2008 (Transition)

United States v. Moorefield, 66 M.J. 170 (the fact that the SJA served as the military judge in an earlier, unrelated court-martial of appellant did not disqualify him from participating in a second court-martial of appellant under RCM 1106(b) and Article 6, UCMJ, which bar a person from participating as the SJA in the same case that he served as a military judge, where the courts-martial occurred several years apart and involved different victims and evidence, and thus the two trials were not the same case). 


United States v. Scott, 66 M.J. 1 (the initial SJAR must be served upon trial defense counsel and the defendant; defense counsel may then submit comments on the SJAR; in turn, the SJA has the opportunity to supplement the SJAR in the form of an addendum SJAR; if the addendum contains new matter, it must be served on the accused and counsel for the accused).

(nothing precludes an SJAR addendum from being served on accused and counsel, even when it does not contain new matter; such transparency may preclude appeals).


(new matter is not defined in the MCM, and a comprehensive definition of new matter has not been provided; however, the non-binding Discussion to the MCM provides guidance and its illustrations of what is and is not a new matter have been cited with approval; the Discussion provides that new matter includes discussion of the effect of new decisions on issues in the case, matter from outside the record of trial, and issues not previously discussed; new matter does not ordinarily include any discussion by the SJA or legal officer of the correctness of the initial defense comments on the recommendation).


(where the SJAR addendum stated that the members had the benefit of personally hearing the evidence and determined that the sentence was appropriate, it did not contain new matter; noting that the members had determined that five years of confinement was appropriate after hearing all of the evidence in the case was not news, and thus not new matter; the statements in question were not news to the convening authority, who presumptively knew that members heard the case, as he referred the case and detailed members to it via his convening order; and the statements did not invite the convening authority to defer to the members because they had already heard the evidence in appellant’s case and were not persuaded that a lower sentence was appropriate; being told that members arrived at the sentence after hearing all the evidence hardly invites the convening authority to shirk his duty to take action pursuant to RCM 1107). 

(an SJAR addendum accurately referencing the fact that the court-martial heard evidence before imposing a sentence, without more, does not constitute new matter).


(an SJAR addendum that actually invited the convening authority to abdicate his duties because the trier of fact had reviewed all clemency materials, whether true or not, would be new matter within the meaning of RCM 1106(f)(7)). 


(in this case, the SJAR addendum stated nothing new and the information contained therein was not erroneous, inadequate, or misleading; instead, it merely stated an obvious fact in the course of advising the convening authority on the correctness of the initial defense comments on the recommendation - that the members had the benefit of personally hearing the evidence and determined that the sentence was appropriate; RCM 1106(f)(7) does not extend to encompass such statements; thus, failure to serve the addendum on defense counsel did not necessitate a new convening authority’s action). 



United States v. Alexander, 63 M.J. 269 (after authentication of the record of trial, the convening authority’s SJA prepares a recommendation for action by the convening authority; the recommendation assists the convening authority in deciding what action to take on the sentence; under the authority granted by Congress in Article 60(d), UCMJ, the President has prescribed the contents of the recommendation, including the requirement to provide concise information as to the findings and sentence adjudged by the court-martial; the information regarding the findings need not include either the verbatim text of the specification or an exact description of any exceptions or substitutions made by the court-martial).


(the SJA serves the recommendation on the defense prior to submission to the convening authority; the defense may provide the convening authority with comments on the recommendation, as well as other matters; if the defense does not comment on a deficiency in the SJA’s recommendation, the matter is waived, absent plain error).    


(if the list of findings in the SJA’s post-trial recommendation omits any reference to a particular finding, the court of criminal appeals may not presume that the convening authority implicitly approved or disapproved the omitted finding; in such a case, the court must return the case for a new SJA’s review and convening authority’s action unless the court determines that the affected finding should be disapproved at the appellate level in the interest of efficient administration of justice). 


(pursuant to RCM 1106(d)(3)(A), the SJA’s recommendation may provide the convening authority with concise information about the findings, without specifying exactly what acts the appellant was found guilty of or what language was excepted or substituted; for the specific purpose of determining what offenses were approved by a convening authority; although disapproval of the findings requires express action by the convening authority, the convening authority is not required to take express action to approve the findings; in that context, the SJA’s description of a finding is sufficient if it provides a general depiction of the offense, without the necessity for reciting the details of each element and aggravating factor). 




United States v. Scalo, 60 M.J. 435 (when a sentence includes a punitive discharge or confinement for one year or more, the convening authority must receive a written recommendation from his or her SJA before taking action on the case; the President has issued detailed guidance as to the material that must be set forth in the SJA’s recommendation, including a statement of the nature and duration of any pretrial restraint).


(the SJA’s recommendation plays a vital role in providing the convening authority with complete and accurate advice in the  exercise of command discretion; accurate advice is particularly important in light of the fact that the convening authority is not required to review the record of trial personally before taking action). 


(if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis). 


(in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice).   




United States v. Taylor, 60 MJ 190 (a military accused’s best hope for sentence relief from a court-martial judgment comes in the convening authority’s action, and the staff judge advocate’s recommendation to the convening authority plays a pivotal role in an accused’s chances for relief; as a consequence, a disqualified staff judge advocate’s participation in the post-trial review process is a serious deficiency that cannot be said to be a technical matter without impact on the outcome of the proceedings).


(where a defense counsel’s post-trial submission includes allegations of legal error, the staff judge advocate’s advice to the convening authority is particularly important; in this case, where the defense counsel submitted allegations of legal error and the staff judge advocate’s advice was given by one who should have been disqualified from acting, the lack of advice from a properly-qualified staff judge advocate constituted a colorable showing of prejudice, warranting a new post-trial review and action).



United States v. Lee, 50 MJ 296 (recommendations of a military judge must be brought to the attention of the convening authority to assist him in considering action on the sentence).

United States v. Finster, 51 MJ 185 (the importance of the SJA recommendation under Article 60(d), UCMJ, is underscored by Congress establishing criteria that disqualify a person from acting as an SJA in designated situations, (Article 6(c), UCMJ), and by this Court in granting relief in cases in which the SJA was disqualified because of conflicting interests).

(preparation of a post-trial recommendation by enlisted person who was neither the SJA nor legal officer met the criteria for plain error where:  (1) preparation of the post-trial recommendation by an enlisted person was error; (2) the error was plain in light of the well-understood terms “staff judge advocate” and “legal officer”; and (3), in light of the critical role assigned by Congress to the SJA or legal officer in advising the convening authority in that officer’s exercise of discretion, the failure to obtain a recommendation from a qualified person materially prejudiced the substantial right of the accused to have his submission considered by a qualified SJA or legal officer prior to the convening authority’s action).

United States v. Magnan, 52 MJ 56 (a misstatement by the staff judge advocate to the effect that there was no clemency recommendation by the military judge was error, but there was no evidence that this was a knowing intentional misstatement designed to prejudice appellant).

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