TRIAL STAGES: Initial Review: Post-trial Recommendation

2020 (October Term)

United States v. Chandler, 80 M.J. 425 (the issue of whether an SJA is disqualified from participating in the post-trial review of a case is a question of law which an appellate court review de novo.). 

(in determining whether an SJA is disqualified, an appellate court will consider the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken). 

(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 (RCM 1106(b) and Article 6, UCMJ, bar a person from participating as the SJA in the same case that he served as a military judge). 

 
(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).  

(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. Frederickson, 63 M.J. 55 (the findings and sentence of a court-martial are subject to review by the convening authority; if the case was tried before a general court-martial or before a special court-martial in which a bad-conduct discharge could be adjudged, the convening authority must obtain the recommendation of his SJA before taking action on the results of the trial; prior to submitting the recommendation to the convening authority, the SJA must serve it on the accused and defense counsel for the opportunity to comment; after the defense has had an opportunity to comment, the SJA may supplement the recommendation in an addendum; if the addendum contains new matter, the addendum must be served on the accused and defense counsel, who then have an opportunity to comment on the addendum; CAAF has not attempted to develop a comprehensive definition of new matter).

(the failure to serve new matter contained in an SJAR addendum on the defense is not prejudicial if the new matter is neutral, neither derogatory nor adverse to appellant, or if it is so trivial as to be nonprejudicial). 

(appellant did not make a colorable showing of prejudice from the failure of the SJA to serve the defense with new matter contained in the SJAR addendum where the proffered defense responses to the new matter only reiterated what the defense previously submitted to the convening authority during the post-trial proceedings; under the circumstances of this case, where the addendum provided a detailed summary of the defense submission, the loss of opportunity for repetition of the defense submission did not demonstrate that service of the addendum on the defense could have produced a different result).

(SJAs can preclude unnecessary appellate litigation by providing convening authorities with SJAR addenda only when necessary and by broadly construing the term new matter for purposes of providing servicemembers with an opportunity to respond to addenda). 

United States v. Capers, 62 M.J. 268 (if defense counsel does not make a timely comment on an error or omission in the SJA’s post-trial recommendation, the error is waived unless it is prejudicial under a plain error analysis).

2005

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).  

2003

United States v. Lowe, 58 MJ 261 (the text of RCM 1106(f)(1) is plain; the intent is clear; the staff judge advocate’s recommendation is required to be served on trial defense counsel before the convening authority takes action; this affords the accused an opportunity to communicate with the convening authority on the question of clemency and other post-trial matters at the same time the Government is heard; in this manner, the convening authority has the benefit of information received through the adversarial process before he or she acts).

(the purpose of the service requirement in RCM 1106(f)(1) was to eliminate delays encountered in claims of error in post-trial reviews and the exhaustion of appellate resources when such error could easily and expeditiously be resolved prior to the convening and supervisory authorities' actions).

United States v. Wellington, 58 MJ 420 (Article 60(d), UCMJ, requires the convening authority to obtain and consider the written recommendation of his staff judge advocate or legal officer; consistent with this Congressional intent, the President has acknowledged that the purpose of the recommendation is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative).

(where the SJAR is served on the defense counsel and accused in accordance with RCM 1106(f)(1), and the defense fails to comment on any matter in the recommendation, RCM 1106(f)(6) provides that any error is waived unless it rises to the level of plain error).

(RCM 1106(d)(3)(C) and (D) require that the SJAR contain a summary of any records of NJP and a statement of the nature and duration of any pretrial restraint; the government conceded that the SJAR misstated appellant’s disciplinary record and omitted mention of the pretrial restraint imposed; we test for plain error, because appellant did not comment on these errors; in our view, the errors were clear and obvious; the only question is whether the errors resulted in material prejudice to appellant’s substantial right to have a request for clemency judged on the basis of an accurate record; in this case, appellant had no disciplinary record prior to his court-martial, but the SJAR portrayed him as a mediocre soldier who had twice received punishment from a field grade officer; appellant’s best hope for sentence relief was dashed by the inaccurate portrayal of his service record; accordingly, we hold that there was plain error in the SJAR, and we will not speculate on what the convening authority would have done if he had been presented with an accurate record).

2002

United States v. Emminizer, 56 MJ 441 (SJA’s advice concerning the relationship between adjudged and mandatory forfeitures was incomplete in two respects: (1) in addition to his correct advice that if the convening authority disapproved the adjudged forfeitures, he could waive the resultant mandatory forfeitures, he also should have stated that if the convening authority modified or suspended the adjudged forfeitures, he could then waive the resultant mandatory forfeitures; and (2), in light of appellant’s eighteen-month sentence, the SJA’s advice reasonably could have been construed by the convening authority to mean that it was necessary to disapprove the forfeitures for the entire eighteen-month period in order to grant appellant’s waiver request – therefore, he should have stated that the convening authority could grant appellant’s request by suspending the adjudged forfeitures for six months and then waiving the resultant mandatory forfeitures for the six-month period).

(SJA should have advised the convening authority that compensation for dependents under the waiver authority may be paid only for a transitional six-month period, and that the convening authority could grant appellant’s request by suspending adjudged forfeitures for six months, and then waiving the resulting mandatory forfeitures for the six-month period).

United States v. Gilbreath, 57 MJ 57 (RCM 1106(f)(7) authorizes the staff judge advocate to submit an addendum to his post-trial recommendation to the convening authority; however, the rule also requires service of that addendum on the defense if the addendum includes “new matter” and allows comment by the defense on that new matter).

(staff judge advocate’s addendum presented “new matter” within the meaning of RCM 1106(f)(7) when it implied, in a trial by judge alone, that the members of appellant’s court-martial had already considered the post-trial clemency matters submitted by the defense and found them unpersuasive, and that the commander should defer to their decision).

(addendum to the SJA recommendation contained an error in that the staff judge advocate erroneously advised the convening authority that a “jury,” rather than a judge, had determined an appropriate sentence for appellant).

(failure to serve an addendum with this particular type of new matter in it prejudiced appellant; the new matter implied, in a trial by judge alone, that the members of appellant’s court-martial had already considered the clemency matters submitted by the defense and found them unpersuasive, and that the commander should defer to their decision).

(where erroneous post-trial reviews are involved, a showing of actual prejudice is not required to secure appellate relief; an appellant only has a burden to make some colorable showing of possible prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter that could have produced a different result).

(a new review and action were required where potentially pivotal new matter was contained in an unserved SJA addendum to the post-trial recommendation, and a response to this new matter could have produced a different result; defense counsel could have pointed out the faulty factual premises on which the staff judge advocate’s recommendation against clemency were based and made a persuasive argument that the staff judge advocate’s recommendation to defer to the judgement of the non-existent court members was also legally improper).

(addendum to SJA post-trial recommendation contained new matter which was erroneous and/or misleading:  (1) it wrongly asserted that those members selected for court-martial duty by the convening authority had already considered the defense clemency materials and found them unpersuasive; (2) it further suggested that the convening authority should defer to those members’ judgment on sentence; (3) it conceivably suggested that the convening authority not provide the independent and fresh look by command authorities required by Article 60, UCMJ, 10 USC § 860; and (4) in a guilty plea tried by judge alone, the convening authority, perhaps inadvertently, was misled into believing that the officers he had selected to pass judgment in this case rejected the merits of appellant’s clemency).

(appellate court will not speculate on what the convening authority would have done had defense counsel been properly served with the addendum and allowed to respond; rather the test is whether appellant can make some colorable showing of possible prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter that could have produced a different result).

United States v. Williams, 57 MJ 1 (service of the SJA’s recommendation on the accused’s counsel is a critical part of the accused’s post-trial representation).

(the service requirement in Article 60(d), UCMJ, was designed to eliminate delays encountered in claims of error in post-trial reviews and the exhaustion of appellate resources when such error could easily and expeditiously be resolved prior to the convening and supervisory authorities’ actions).

(when a staff judge advocate fails to serve on the defense a copy of the post-trial recommendation, an appellant must demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter, but the threshold should be low, and if an appellant makes some colorable showing of possible prejudice, appellant will receive the benefit of the doubt and the Court speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment).

(the essence of post-trial practice is basic fair play — notice and an opportunity to respond; an appellant has the right to have his counsel served the SJA’s post-trial recommendation and the attendant right to respond to the a failure to include a military judge’s favorable recommendation in its entirety).

United States v. Key, 57 MJ 246 (whether there is a legal requirement to serve the SJA’s recommendation on a deferment request, and whether the SJA’s recommendation contained “new matter,” are issues of law to be reviewed de novo).

(when an appellant complains about the failure to serve “new matter,” the appellant must demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter).

(the SJA’s comments in his recommendation on a request for deferment of forfeitures were not “new matter” because comment about appellant’s self-inflicted financial situation was a statement of the obvious and because comment about the absence of supporting documentation was merely a non-inflammatory observation about the contents of the request which did not inject anything from outside the record).

2001

United States v. Brown, 54 MJ 289 (although the Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation (served on the defense for comment) before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, the court holds that, even if appellant was entitled to notice and an opportunity to comment on an SJA’s advice, appellant failed to make a colorable showing of prejudice as a result of this alleged post-trial error).

(Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, as well as whether that recommendation must be served on the accused; but court leaves to the Executive Branch to consider whether, as a matter of law or policy, and consistent with due process considerations, such requests to the convening authority should be followed by a recommendation from the SJA and service on the accused with an opportunity to respond).

(to determine whether an erroneous failure to serve new matter on the defense constitutes prejudicial error, the burden is on the appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the threshold is low, requiring only some colorable showing of possible prejudice, but that threshold is not met by sheer speculation about factual matters that are within the normal investigative capabilities of counsel).

United States v. Gunkle, 55 MJ 26 (in a post-trial recommendation, the SJA must provide the convening authority with concise information as to the findings and sentence adjudged by the court-martial, but the SJA is required only to state the nature of the crimes without specifying exactly what acts the appellant was found guilty of or what language was excepted or substituted).

(although the post-trial recommendation failed to reflect that certain factual allegations had been the subject of granted motions for findings of not guilty, the post-trial recommendation nonetheless described the offenses with sufficient accuracy to assist the convening authority to decide what action to take on the sentence; the burden was upon the appellant to provide any additional information deemed favorable to the defense).

United States v. Catrett, 55 MJ 400 (where defense counsel raised several post-trial claims of legal error at appellant’s court-martial, the minimal requirements of RCM 1106(d)(4) to respond were satisfied by noting in an addendum to the post-trial recommendation that the defense matters were attached to an addendum, incorporating those matters by reference, and stating, “Nothing contained in the defense submissions warrants further modification of the opinions and recommendations expressed in the Staff Judge Advocate’s Recommendations.”).

2000

United States v. Hensley, 52 MJ 391 (despite concession that it was error for someone other than ship’s legal officer to prepare post-trial recommendation, this error did not amount to plain error; a post-trial recommendation from someone other than the ship’s legal officer does not materially prejudice a substantial right, because an accused does not have a right to a recommendation from a specific officer).

(although it was error for someone other than ship’s legal officer to prepare post-trial recommendation, defense counsel’s interaction with actual preparer of post-trial recommendation was akin to affirmative waiver where defense counsel called appellant’s clemency petition to the preparer’s attention and defense counsel did not challenge authority of preparer to prepare either the initial post-trial recommendation or the addendum).

(even assuming arguendo that it was plain error for someone other than ship’s legal officer to prepare post-trial recommendation, appellant was not prejudiced as to result where:  (1) the actual preparer of the post-trial recommendation was qualified as a legal officer; (2) there was no forum shopping or other manipulation to influence the content of the recommendation; (3) the recommendation and addendum were legally correct; (4) the recommendation was prepared by an officer of greater experience than the ship’s legal officer; and, (5) appellant made no colorable showing that he would have received a more favorable recommendation from the ship’s legal officer).

United States v. Kho, 54 MJ 63 (defense counsel’s failure to comment on any matter in the post-trial recommendation in a timely manner waives later claim of error, unless error rises to the level of plain error).

(error in post-trial recommendation’s description of an assault (placing a child in cold water versus spraying a child with cold water) did not rise to the level of plain error where there was no legal difference and little qualitative difference between the two, and appellant did not sustain his burden of demonstrating any specific prejudice).

(it was error for the post-trial recommendation to omit mention of military judge’s recommendation that convening authority consider suspending 30 days of the confinement, but where defense did not object to the omission and appellant was released from confinement earlier than the military judge recommended, appellant failed to carry burden of making colorable showing of prejudice in support of claim of plain error).

United States v. Pfister, 53 MJ 158 (where defense counsel was served a copy of a victim impact statement on October 30, and action was taken on December 5, there was more than adequate opportunity for defense counsel to prepare rebuttal to the statement, and the failure to do so constituted waiver:  (1) the period of time was 33 days; (2) during this time defense counsel submitted a second clemency petition; (3) defense counsel filed a petition for extraordinary relief and for a stay of post-trial proceedings, and filed a supporting brief at the Court of Criminal Appeals; (4) defense counsel did not seek a further extension, as required, despite having filed a petition for extraordinary relief).

(there was no plain error to overcome waiver resulting from defense counsel’s failure to comment on new matter served in an addendum to the post-trial recommendation where, 33 days later, there was no clear or obvious error in the convening authority’s decision to take action without rebuttal to this new matter).

United States v. Wilson, 54 MJ 57 (although the post-trial recommendation was signed by an “Assistant Staff Judge Advocate,” there was no timely objection and appellant failed to sustain his burden of demonstrating plain error where there was nothing in the record showing that the individual who prepared the post-trial recommendation was not the senior judge advocate present for duty).

(although the post-trial recommendation was signed by an “Assistant Staff Judge Advocate,” there was no timely objection and appellant failed to sustain his burden of demonstrating material prejudice under the plain error doctrine where:  (1) the only defect in the post-trial recommendation was clearly harmless; (2) the claim that appellant might receive a more favorable recommendation from a more experienced officer was purely speculative; (3) appellant had negotiated a pretrial agreement that cut the adjudged confinement from 7 years to 30 months; and (4) there was no reasonable likelihood that the SJA would have recommended clemency or that the convening authority would have granted it in this case).

United States v. Anderson, 53 MJ 374 (a small note, written by the chief of staff to the convening authority and clipped to appellant’s clemency submission, was attached in error as it did not constitute supplementation of a post-trial recommendation by any officer with authority to supplement a post-trial recommendation.  RCM 1106(f)(7)).

(a small note, written by the chief of staff to the convening authority and clipped to appellant’s clemency submission, was new matter within the meaning of RCM 1106(f)(7) which must be served upon the accused and defense counsel for comment:  (1) the note was an opinion on appellant’s character submitted after the SJA’s recommendation had been served and signed for by appellant; (2) the comments in the note were made after appellant had submitted a request for clemency; and (3) the comments were made by an officer who did not testify at trial and whose stature suddenly became an issue in the case).

(a small note, written by the chief of staff to the convening authority and clipped to appellant’s clemency submission, which indicated that appellant was a “thug” who was “lucky” he did not kill the victim, was adverse matter from outside the record which the accused was to be afforded the opportunity to rebut under RCM 1107(b)).

(to demonstrate that new or adverse matter considered by the convening authority was prejudicial, appellant must show what he would have submitted to deny, counter, or explain the new matter; the threshold is low, however, and the appellate court will not speculate on what the convening authority might have done if the defense counsel had been given the opportunity to comment).

United States v. Johnston, 51 MJ 227 (where accused’s detailed defense counsel had been released from active duty and was therefore not under the control of the Judge Advocate General of the Navy at the time of a new SJA recommendation, accused was not represented by counsel under Article 27b, UCMJ, at this critical point in the criminal proceedings against him as required by RCM 1106(f)(2)).

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).

(a recommendation which was not prepared by an SJA or legal officer, but by an enlisted person, was prepared by a person not qualified under the statute to provide a post-trial recommendation to the convening authority).

(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).

(where the SJA recommendation was prepared by an unqualified enlisted person, there was a fundamental flaw in the post-trial process which seriously affected the fairness, integrity, and public reputation of the proceedings; nor are commanders well-served when staff work is assigned to statutorily unqualified personnel; such cases are not ready for appellate review and should be returned promptly to the convening authority for preparation of a new SJA recommendation and 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).