United States v. Private First Class ANDRE E. GRANT

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges UNITED STATES, Appellee v. Private First Class ANDRE E. GRANT United States Army, Appellant ARMY 20070360 1st Armored Division (convened) V Corps (action) Reynold P. Masterton, Military Judge Lieutenant Colonel Karen V. Fair, Staff Judge Advocate (trial) Lieutenant Colonel James H. Robinette II, Staff Judge Advocate (recommendation) Colonel Flora D. Darpino, Staff Judge Advocate (addendum) For Appellant: Major Sean F. Mangan, JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief). For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed. 29 February 2008 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: In our review of the case under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 [hereinafter UCMJ], we note the convening authority was not provided the entirety of appellant’s post-trial matters submitted pursuant to Rule for Court-Martial [hereinafter R.C.M.] 1105 and 1106. The record of trial indicates appellant’s trial defense counsel submitted a petition for clemency in response to the staff judge advocate’s post-trial recommendation (SJAR) on 10 October 2007. The trial defense counsel’s memorandum refers to an enclosed letter from appellant consisting of two pages in which appellant alleges, in part, he did not receive any unit visits during his confinement in violation of “USAREUR Regulation 19047, Appendix C, Paragraph B-2c.” The record of trial, however, contains only one page of appellant’s letter which ends without signature or the cited unit confinement visitation policy reference. On 6 December 2007, the convening authority signed the initial action stating he considered defense counsel’s 10 October 2007 memorandum with an enclosure consisting of appellant’s “1 page” letter. Article 60, UCMJ, and R.C.M. 1107 require the convening authority to consider clemency materials submitted by the accused pursuant to R.C.M. 1105 and 1106. “Speculation concerning the consideration of such matters simply cannot be tolerated in this important area of command prerogative.” United States v. Craig, 28 M.J. 321, 325 (C.M.A. 1989) (citing United States v. Siders, 15 M.J. 272, 273 (C.M.A. 1983)). Accordingly, “this court will not ‘guess’ as to whether clemency matters prepared by the defense counsel were attached to the recommendation or otherwise considered by the convening authority.” Id. (quoting United States v. Hallums, 26 M.J. 838, 841 (A.C.M.R. 1988)). In this case, it is clear that certain matters submitted by the appellant were not presented to the convening authority. Article 60(c)(2), UCMJ; United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (an appellant must make a “colorable showing of possible prejudice” resulting from an error in order to obtain relief). The convening authority’s initial action, dated 6 December 2007, is set aside. The record of trial is returned to The Judge Advocate General for a new SJAR and action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.[1] FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] The new action should reflect, inter alia, the correct plea and finding to Specification 3 of Additional Charge 1 and the correct nature of the property unlawfully obtained by forgery in Specifications 2 and 3 of Additional Charge II.