UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 BRADLEY R. MEHRMAN
United States Army, Appellant
ARMY 20110800
Headquarters, Fort Drum
Gregory R. Bockin, Military Judge
Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate (pretrial)
Colonel Michael O. Lacey, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain John L. Schriver, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Jessica J. Morales, JA (on brief).
29 March 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas of a single specification of absence without leave in violation
of Article 86, Uniform Code of Military Justice 10 U.S.C. § 886 (2006) [hereinafter
UCMJ] *. The military judge sentenced appellant to a bad-conduct discharge,
confinement for seven months, and reduction to the grade of E-1. The convening
authority credited appellant with one day of pretrial confinement, and pursuant to a
pretrial agreement, approved five months of confinement and the remainder of the
adjudged sentence.
This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error, one which merits discussion. Appellant asserts that the
*
The military judge, pursuant to appellant’s plea, excepted the words: “he was
apprehended” from the Specification of the Charge.
MEHRMAN—ARMY 20110800
convening authority did not consider all matters submitted for clemency pursuant to
Rule for Courts-Martial 1105 and thus requests a new review and action. The
government does not oppose appellant’s request under the circumstances as “there is
no evidence that the former chief of justice, the staff judge advocate, or more
importantly, the Convening Authority, reviewed these missing matters” and joins
appellant in requesting this court to order a new review and action. We agree. See
generally United States v. Fordyce, 69 M.J. 501 (Army Ct. Crim. App. 2010) (en
banc). This remedy will afford appellant the requested opportunity to submit
complete clemency matters to the convening authority.
Our superior court has often noted an accused’s best chance for clemency
rests with the convening authority. See United States v. Wheelus, 49 M.J. 283, 287
(C.A.A.F. 1998); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994).
Consequently, “the convening authority’s obligation to consider defense [clemency]
submissions is uniquely critical to an accused.” United States v. Hamilton, 47 M.J.
32, 35 (C.A.A.F. 1997).
“If the convening authority has not seen a convicted servicemember’s
clemency submission, it is well established that he has not been afforded his ‘best
hope for sentence relief.’” United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991)
(citations omitted). We decline to speculate what the convening authority would
have done if presented with the clemency information appellant ostensibly desired to
submit. We return the record of trial to afford appellant an opportunity to provide
matters to the convening authority for consideration.
CONCLUSION
The action of the convening authority, dated 28 December 2011, is set aside.
The record of trial will be returned to The Judge Advocate General for preparation
of a new staff judge advocate recommendation and action by the same or a different
convening authority in accordance with Article 60(c)–(e), UCMJ.
FOR THE COURT:
KENNETH J. TOZZI
KENNETH
COL, JA J. TOZZI
COL, JA Clerk of Court
Acting
Acting Clerk of Court