2008 edition - Fort Sam Houston - U.S. Army

the defense may submit matters in increments by reserving in
writing its right to submit additional matters within the time
period. In certain cases this may be advantageous to the defense
as well as the Government, by permitting early consideration of
such matters. Otherwise, if the defense contemplated presenting
additional matters, it would have to withhold all matters until the
end of the period. Subsection (3) is based on Article 60(b)(4).
S u b s e c t i o n ( 4 ) e n s u r e s t h a t t h e a c c u s e d c a n n o t , b y a n u n -
authorized absence, prevent further disposition of the case. Cf.
United States v. Schreck, 10 M.J. 226 (C.M.A. 1983). Note that if
the accused has counsel, counsel must be served a copy of the
record (see R.C.M. 1104(b)(1)(C)) and that the defense will have
at least 7 days from such service to submit matters. Note also that
the unauthorized absence of the accused has no effect on the 30,
20, or 7 day period from announcement of the sentence within
which the accused may submit matters (except insofar as it may
weigh against any request to extend such a period). The discussion
notes that the accused is not required to raise matters, such
as allegations of legal error, in order to preserve them for consideration
on appellate review.
Rule 1106 Recommendation of the staff judge
advocate or legal officer
(a) In general. This subsection is based on Article 60(d), as
amended, see Military Justice Act of 1983, Pub.L. No. 98-209, §
5(a)(1), 97 Stat. 1393 (1983). The first paragraph of paragraph 85
a of MCM, 1969 (Rev.) was similar.
2002 Amendment: Subsection (a) was amended to implement
the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained
in section 577 of the National Defense Authorization Act
for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)
i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l
courts-martial. This amendment requires all special courts-martial
cases subject to appellate review to comply with this rule.
(b) Disqualification. This subsection is based on Article 6(c) and
on the second paragraph of paragraph 85 a of MCM, 1969 (Rev.).
Legal officers have been included in its application based on
A r t i c l e 6 0 ( d ) . T h e d i s c u s s i o n n o t e s a d d i t i o n a l c i r c u m s t a n c e s
which have been held to disqualify a staff judge advocate. The
first example is based on United States v. Thompson, 3 M.J. 966
(N.C.M.R. 1977), rev’d on other grounds, 6 M.J. 106 (C.M.A.
1978), petition dismissed, 7 M.J. 477 (C.M.A. 1979). The second
example is based on United States v. Choice, 23 U.S.C.M.A. 329,
49 C.M.R. 663 (1975). See also United States v. Cansdale, 7 M.J.
143 (C.M.A. 1979); United States v. Conn, 6 M.J. 351 (C.M.A.
1979); United States v. Reed, 2 M.J. 64 (C.M.A. 1976). The third
example is based on United States v. Conn and United States v.
Choice, both supra. Cf. Articles 1(9); 6(c); 22(b); 23(b). The
fourth example is based on United States v. Collins, 6 M.J. 256
( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s v . E n g l e , 1 M . J . 3 8 7 ( C . M . A .
1976). See also United States v. Newman, 14 M.J. 474 (C.M.A.
1983) as to the disqualification of a staff judge advocate or
convening authority when immunity has been granted to a witness
in the case.
1986 Amendment: The phrase “or any reviewing officer” was
changed to “to any reviewing officer” to correct an error in
MCM, 1984.
(c) When the convening authority does not have a staff judge
advocate or legal officer or that person is disqualified. Subsec-
ANALYSIS
App. 21, R.C.M. 1106(f)
tion (1) is based on the third paragraph of paragraph 85 a of
MCM, 1969 (Rev.). Legal officers have been included in its
application based on Article 60(d). Subsection (2) is new. It
recognizes the advantages of having the recommendation prepared
by a staff judge advocate. This flexibility should also permit
more prompt disposition in some cases as well.
( d ) F o r m a n d c o n t e n t o f r e c o m m e n d a t i o n . T h i s s u b s e c t i o n i s
based on Article 60(d) and on S.Rep. No. 53, 98th Cong., 1st
Sess. 20 (1983). As to the subsection (1), see also Article 60(c).
Subsections (3), (4), and (5) conform to the specific guidance in
S.Rep. No. 53, supra. Subsection (6) is based on S.Rep. No. 53,
98th Cong., 1st Sess. 21 (1983). The recommendation should be a
concise statement of required and other matters. Summarization
of the evidence and review for legal error is not required. Therefore
paragraph 85 b of MCM, 1969 (Rev.) is deleted.
Paragraph 85 c of MCM, 1969 (Rev.) is also deleted. That
paragraph stated that the convening authority should explain any
decision not to follow the staff judge advocate’s recommendation.
See also United States v. Harris, 10 M.J. 276 (C.M.A. 1981);
United States v. Dixson, 9 M.J. 72 (C.M.A. 1980); United States
v. Keller, 1 M.J. 159 (C.M.A. 1976). The convening authority is
no longer required to examine the record for legal or factual
sufficiency. The convening authority’s action is solely a matter of
command prerogative. Article 60(c). Therefore the convening authority
is not obligated to explain a decision not to follow the
recommendation of the staff judge advocate or legal officer.
1995 Amendment: Subsection (d)(3)(B) is new. It requires that
the staff judge advocate’s or legal advisor’s recommendation inform
the convening authority of any clemency recommendation
made by the sentencing authority in conjunction with the announced
sentence, absent a written request by the defense to the
contrary. Prior to this amendment, an accused was responsible for
informing the convening authority of any such recommendation.
The amendment recognizes that any clemency recommendation is
so closely related to the sentence that staff judge advocates and
legal advisors should be responsible for informing convening authorities
of it. The accused remains responsible for informing the
convening authority of other recommendations for clemency, including
those made by the military judge in a trial with member
sentencing and those made by individual members. See United
States v. Clear, 34 M.J. 129 (C.M.A. 1992); R.C.M. 1105(b)(4).
Subsections (d)(3)(B) - (d)(3)(E) are redesignated as (d)(3)(C) -
(d)(3)(F), respectively.,
(e) No findings of guilty. This subsection is based on Article 60
and 63. When no findings of guilty are reached, no action by the
convening authority is required. Consequently, no recommendation
by the staff judge advocate or legal officer is necessary. The
last paragraph of paragraph 85 b of MCM, 1969 (Rev.), which
was based on Article 61 (before it was amended), was similar.
1990 Amendment: Subsection (e) was amended in conjunction
with the implementation of findings of not guilty only by reason
of lack of mental responsibility provided for in Article 50 a,
UCMJ (Military Justice Amendments of 1986, tit. VIII, § 802,
National Defense Authorization Act for Fiscal Year 1987, Pub. L.
99-661, 100 Stat. 3905 (1986)).
(f) Service of recommendation on defense counsel; defense response.
This subsection is based on Article 60(d). See also United
States v. Goode, 1 M.J. 3 (C.M.A. 1975). Subsection (1) is based
A21-85