Gonzalez & Waddington – Attorneys at Law

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Military Appeals Lawyers

Overview of general considerations for appeals:

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

RCM 1107(b)(3)(A).

Must consider :

  • Result of trial;
  • SJA recommendation; and,
  • Accused’s written submissions.

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.”

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

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

United States v. Mooney , No. 9500238 (A. Ct. Crim. App. June 10, 1996) (unpublished).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 RCM 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.

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).

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. Ct. Crim. App. 2002) (post-trial affidavits from SJA and CA suffice, although not the preferred method – use an addendum).

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RCM 1107(b)(3)(B). May consider :

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).

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.”

CA need not meet with accused – or anyone else. United States v. Haire , 44 M.J.520 (C.G. Ct. Crim. App. 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.

RCM 1107(b)(4). No action on not guilty findings.

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


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