U.S. v. Travis, 66 M.J. 301

Military Justice Personnel: Defense Function: Responsibilities

1. defense counsel should take reasonable steps to guarantee that clemency submissions have in fact been received under any circumstances but particularly where communications are problematic

Military Justice Personnel: Staff Judge Advocate: Responsibilities

1. an SJA should be attentive to whether the defense intends to submit clemency matters and, where there are clear indications that the defense intends to submit matters, the SJA need not rush to action in the absence of the anticipated clemency material - particularly where communications are problematic

Military Justice Personnel: Convening Authority: Action

1. a convicted servicemember has the right to submit matters to the convening authority that reasonably tend to affect the decision whether to approve or disapprove any findings of guilt or to approve, reduce, or disapprove the adjudged sentence; these matters may be submitted within ten days after the authenticated record of trial and SJA recommendation are served on the accused, and additional time may be requested for good cause shown; failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such matters; a convening authority must consider matters submitted by the accused
2. clemency is a highly discretionary command function of a convening authority

Trial Stages: Initial Review: Post-trial Submissions

1. a convicted servicemember has the right to submit matters to the convening authority that reasonably tend to affect the decision whether to approve or disapprove any findings of guilt or to approve, reduce, or disapprove the adjudged sentence; these matters may be submitted within ten days after the authenticated record of trial and SJA recommendation are served on the accused, and additional time may be requested for good cause shown; failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such matters; a convening authority must consider matters submitted by the accused

Trial Stages: Initial Review: Clemency

1. a convicted servicemember has the right to submit matters to the convening authority that reasonably tend to affect the decision whether to approve or disapprove any findings of guilt or to approve, reduce, or disapprove the adjudged sentence; these matters may be submitted within ten days after the authenticated record of trial and SJA recommendation are served on the accused, and additional time may be requested for good cause shown; failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such matters; a convening authority must consider matters submitted by the accused
2. the CAAF cannot substitute its judgment about the merit of a request for clemency or the weight to be given any specific clemency recommendation by a convening authority
3. clemency is a highly discretionary command function of a convening authority
4. where a servicemember has been deprived of full and fair clemency consideration by a convening authority, the CAAF is not reluctant to return a case for an otherwise proper review and action
5. appellant did not suffer any material prejudice to a substantial right from the alleged failure of the SJA to submit clemency matters to the convening authority prior to his initial action and from the SJA’s subsequent failure to forward them to the convening authority for over a year, where there was a second action taken by the same convening authority after his consideration of appellant’s clemency submission which demonstrated clearly and convincingly that even if the clemency materials had been considered at the time of the initial action, appellant would not have been afforded clemency; under these circumstances, any possible error relating to the post-trial processing of clemency materials in this case was harmless, especially where the CCA reduced the period of confinement when it granted sentence relief to address post-trial delay
6. defense counsel should take reasonable steps to guarantee that clemency submissions have in fact been received under any circumstances but particularly where communications are problematic; in addition, an SJA should be attentive to whether the defense intends to submit clemency matters and, where there are clear indications that the defense intends to submit matters, the SJA need not rush to action in the absence of the anticipated clemency material - particularly where communications are problematic

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. as a court of law, the CAAF lacks the authority to make factual determinations
2. the CAAF cannot substitute its judgment about the merit of a request for clemency or the weight to be given any specific clemency recommendation by a convening authority
3. where a servicemember has been deprived of full and fair clemency consideration by a convening authority, the CAAF is not reluctant to return a case for an otherwise proper review and action

Trial Stages: Appeals: Harmless / Prejudicial Error

1. appellant did not suffer any material prejudice to a substantial right from the alleged failure of the SJA to submit clemency matters to the convening authority prior to his initial action and from the SJA’s subsequent failure to forward them to the convening authority for over a year, where there was a second action taken by the same convening authority after his consideration of appellant’s clemency submission which demonstrated clearly and convincingly that even if the clemency materials had been considered at the time of the initial action, appellant would not have been afforded clemency; under these circumstances, any possible error relating to the post-trial processing of clemency materials in this case was harmless, especially where the CCA reduced the period of confinement when it granted sentence relief to address post-trial delay

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether an error, constitutional or otherwise, was harmless, is a question of law that an appellate court reviews de novo