United States v. Smith

59 M.J. 604, 2003 CCA LEXIS 238, 2003 WL 22299158
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedSeptember 22, 2003
DocketNMCCA 200200339
StatusPublished
Cited by2 cases

This text of 59 M.J. 604 (United States v. Smith) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Smith, 59 M.J. 604, 2003 CCA LEXIS 238, 2003 WL 22299158 (N.M. 2003).

Opinion

RITTER, Judge:

A military judge, sitting as a special court-martial, tried the appellant on 5 September 2001. Consistent with his pleas, the appellant was convicted of conspiracy to distribute methamphetamine and distribution of methamphetamine, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 912a. The military judge sentenced the appellant to confinement for 150 days, forfeiture of $600.00 pay per month for 5 months, reduction to pay grade E-l, and a bad-conduct discharge.

We have carefully considered the record of trial, the assignment of error, and the Government’s response. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Issue

Where a special court-martial record of trial does not include proof of service of the staff judge advocate’s recommendation (SJAR) on trial defense counsel, does Rule for Courts Martial 1107(d)(4), Manual for Courts-Martial, United States (2000 ed.) prevent the convening authority from approving, and this court from affirming, a bad-conduct discharge?

Service of SJAR on Trial Defense Counsel

Although there is no indication in the record that the SJAR was actually served on the trial defense counsel in this case, the timing of events in the post-trial process suggests that it was served. The appellant was court[606]*606martialed on 5 September 2001, and the SJAR was signed nearly three months later, on 29 November 2001. The trial defense counsel submitted a clemency request pursuant to R.C.M. 1105 shortly thereafter, on 6 December 2001, during the 10-day statutory response period provided by R.C.M. 1106(f)(5). An addendum to the SJAR was signed on 11 December 2001. The convening authority then acted on 7 January 2002, specifically noting that he considered the defense counsel’s clemency request.

On appeal, the appellant moved this court to order the Government to produce documentation establishing proof of service of the SJAR on the trial defense counsel. This court so ordered, but the Government responded that it was unable to comply, as no copy of this document was found in the Government’s possession.

The appellant contends that R.C.M. 1107(d)(4) prohibits the convening authority from approving the bad-conduct discharge (BCD), because the record of trial failed to contain proof of service of the SJAR on the trial defense counsel, as required by R.C.M. 1103(c)(1). He requests that this court set aside the discharge, or remand the case to the convening authority with instructions that no BCD may be approved without complying with the requirements of R.C.M. 1103(c)(1). We decline to do so for the reasons that follow.

Rule

The appellant’s argument depends on a literal reading of R.C.M. 1107(d)(4). Prior to the 2002 Amendments to the Manual for Courts-Martial, that subsection stated as follows 1

(4) Limitations on sentence based on record of trial. If the record of trial does not meet the requirements of R.C.M. 1103(b)(2)(B) or (c)(1), the convening authority may not approve a sentence in excess of that which may be adjudged by a special court-martial, or one which includes a bad-conduct discharge.

This provision is clearly designed to limit the punishment that a convening authority may approve when the record of trial is not prepared in accordance with certain requirements, listed in either R.C.M. 1103(b)(2)(B) or (c)(1). The first reference deals with general courts-martial, while the latter deals with special courts-martial.

For general courts-martial, R.C.M. 1103(b)(2)(B) requires a verbatim written transcript of the trial proceedings whenever a bad-conduct discharge is adjudged, or when any part of the sentence exceeds 6 months confinement or other punishments which may be adjudged by a special court-martial. Thus, as to general courts-martial, R.C.M. 1107(d)(4) merely acts as an enforcement mechanism for the requirement of a verbatim transcript. If a verbatim transcript is not prepared, the convening authority is only authorized to approve the amount of punishment falling below the threshold for the verbatim record requirement.

The second reference in R.C.M. 1107(d)(4) applies to special courts-martial, and thus to this case. That reference is to R.C.M. 1103(e)(1), which deals with the preparation of records of trial for special courts-martial in which a bad-conduct discharge is adjudged. Prior to the 2002 Amendments to the Manual for Courts Martial, it stated as follows2:

[607]*607(c) Special courts-martial
(1) Involving a bad-conduct discharge. The requirements of subsections (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(D), and (b)(3) of this rule shall apply in a special court-martial in which a bad-conduct discharge has been adjudged.

The five referenced subsections of R.C.M. 1103(b) include not only the requirement for a verbatim record, but every other administrative requirement for compiling a record of trial in a special court-martial in which a bad-conduct discharge is adjudged. The fifth reference, R.C.M. 1103(b)(3), lists “Matters attached to the record,” and specifically requires that proof of service of the SJAR on defense counsel be attached to the record. R.C.M. 1103(b)(3)(G).

Discussion

The appellant makes an interesting argument; that is, even though case law requires that a failure of the record of trial to contain proof of service of the SJAR on trial defense counsel must be tested for prejudice prior to granting any relief, the language of R.C.M. 1107(d)(4), combined with its reference to R.C.M. 1103(c)(1), may be read to say that such a deficiency automatically bars a special court-martial convening authority from approving a bad-conduct discharge. Moreover, by this argument, a special court-martial convening authority would be prohibited from approving such a discharge if any document or matter required by R.C.M. 1103 is missing from the record, including “matters attached to the record” not defined by that Rule as part of the complete record. Finally, for cases considered after the effective date of the 2002 Amendments to the Manual for Courts Martial, the appellant’s argument would also support an absolute prohibition against approving any confinement and forfeitures in excess of six months adjudged at a special court-martial, whenever any required matter or document is missing from the record of trial, regardless of whether or not the omission is substantial.

While this court has had occasion in the past to address the effect of R.C.M. 1107(d)(4) on cases such as the appellant’s3, to our knowledge this issue has not been addressed directly by our superior court. Our previous cases suggest, without holding, that R.C.M. 1107(d)(4) was inartfully drafted, creating a “vexatious interplay”4 with R.C.M. 1103 that leads to absurd results.

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Cite This Page — Counsel Stack

Bluebook (online)
59 M.J. 604, 2003 CCA LEXIS 238, 2003 WL 22299158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-nmcca-2003.