IN THE CASE OF
UNITED STATES, Appellee
v.
Thomas A. STEPHENS, Private First Class
U.S. Marine Corps, Appellant
No. 01-0750
Crim. App. No. 00-1833
United States Court of Appeals for the Armed Forces
Argued February 6, 2002
Decided April 10, 2002
Counsel
For Appellant: Major Eric P. Gifford, USMC (argued and on brief).
For Appellee: Lieutenant Christopher J. Gramiccioni, JAGC, USNR (argued);
Colonel Rose M. Favors, USMC (on brief); Major William J. Collins, Jr.,
USMC.
Military Judge: J.S. Brady
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Stephens, No. 01-0750/MC
PER CURIAM:
A special court-martial composed of a military judge sitting
alone convicted appellant, pursuant to his pleas, of
unauthorized absence terminated by apprehension and missing
movement, in violation of Articles 86 and 87, Uniform Code of
Military Justice, 10 USC §§ 886 and 887. He was sentenced to a
bad-conduct discharge, confinement for seventy-five days,
forfeiture of $300 pay per month for three months, and reduction
to pay grade E-1. The convening authority approved these
results, and the Court of Criminal Appeals affirmed in an
unpublished opinion.
On appellant’s petition, we granted review of the following
issue:
WHETHER APPELLANT WAS PREJUDICED BY THE
CONVENING AUTHORITY'S FAILURE TO CONSIDER
CLEMENCY MATERIAL SUBMITTED BY THE TRIAL
DEFENSE COUNSEL.
For the reasons set forth below, we affirm.
I. Background
The staff judge advocate (SJA) completed his post-trial
recommendation to the convening authority on June 19, 2000. The
SJA’s recommendation was served on appellant the following day.
Appellant submitted clemency materials to the SJA on July 13,
2000. The SJA forwarded the clemency materials to the convening
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authority on September 6, 2000, as part of an addendum to the
recommendation. The addendum, which was served on appellant,
also contained a proposed convening authority action. The
convening authority took final action on the case on October 20,
2000, noting that he “specifically considered the results of
trial, the record of trial, and the recommendation of the Staff
Judge Advocate.” On appeal, appellant notes that the convening
authority’s final action listed materials considered by the
convening authority, and that the list did not mention the
clemency materials or the addendum to the SJA recommendation.
According to appellant, the omission of these materials from the
list is a significant indication that the convening authority
did not consider these materials prior to taking final action.
II. Consideration of Clemency Materials
Article 60, UCMJ, 10 USC § 860, and Rule for Courts-Martial
(RCM) 1107, Manual for Courts-Martial, United States (2000 ed.),∗
require the convening authority to consider clemency materials
submitted by the accused pursuant to RCM 1105 and 1106. In
United States v. Craig, 28 MJ 321 (CMA 1989), our Court stated
that “[s]peculation concerning the consideration of such matters
simply cannot be tolerated in this important area of command
∗
Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.
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prerogative.” Id. at 325 (citing United States v. Siders, 15 MJ
272, 273 (CMA 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 MJ 838, 841 (ACMR 1988).
III. Discussion
In Craig, the problem was caused by the fact that the SJA’s
recommendation expressly stated that the clemency materials were
attached at “TAB A,” but the recommendation in the record
contained no attachments identified as TAB A. The present case
is distinguishable, because the addendum to the SJA’s
recommendation in the record was complete, and it included
appellant’s clemency materials. We also note that the addendum
included a proposed action, which the convening authority signed
without change, indicating that he reviewed the addendum.
With respect to appellant’s concern that the convening
authority’s final action did not include the clemency materials
in the list of materials he considered in reaching his decision,
we note that neither the UCMJ nor the Rules for Courts-Martial
require the convening authority to state in the final action
what materials were reviewed in reaching a final decision. It
may be desirable to include such a list to facilitate
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consideration and appellate review, but it is not mandatory. We
decline to hold that a document embodying the convening
authority’s final action is defective simply because it refers
to the SJA’s recommendation without also referring to
attachments, such as an addendum or clemency materials.
IV. Conclusion
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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