(dissenting in part and concurring in the result):
I disagree with the majority opinion that “new matter” within the meaning of RCM 1106(f)(7), Manual for Courts-Martial, United States (1994 ed), can be defined in any way by tying the definition to the record of trial. Such a categorical definition seems to me to unnecessarily limit, thus inadvertently subvert, the purpose of the Rule. I would hold that “new matter” in a staff judge advocate (S JA)’s supplemental recommendation is “any matter” not previously discussed in the original recommendation. Logic dictates that if it is not old, it must be new.*
In this case, the original SJA’s recommendation contained the following:
The accused has no prior convictions or Article 15s. His record indicates excellent duty performance.
Expanding upon the SJA’s kind words, appellant’s counsel submitted a request for clemency in which he made a remarkable case on behalf of his client to ask the convening authority to suspend the execution of the discharge adjudged at trial. Obviously, given this state of the record, appellant’s chances for clemency may have looked pretty *241good, after all he had presented an overwhelming case for clemency as well as the aforementioned kind words of the SJA This state of affairs called for drastic action by the acting SJA if he was to save the sentence in the case. Thus, he offered the following rebuttal in his response to appellant’s request for clemency:
The accused may be a great carpenter, but his crimes and the circumstances of his crimes are not those of the “exceptional NCO” his defense counsel touts him to be. Also, in the record, but not admitted at trial, is a letter of reprimand the accused received on 26 June 1987 for use and purchase of marijuana in May and June 1985, as well as a copy of the apparent basis for that reprimand, the accused’s 15 December 1986 confession to multiple uses of marijuana and one use of “speed” while stationed a Gila Bend.
This response was two-fold: First, it characterized appellant’s crimes and offenses. Second, it brought out a 6-year-old letter of reprimand based upon evidence of drug use some 8 years before. However, there is absolutely nothing new about this matter. The existence of the letter of reprimand was well known to appellant and his attorney. The letter of reprimand was part of appellant’s official personnel file. The existence of the letter could have been discussed by the SJA in his original recommendation. And, most importantly, even though the letter was not admitted as evidence in the court-martial, there is nothing unfair about sharing the information with the convening authority. The letter of reprimand is part and parcel of appellant’s military career.
What was unfair, however, was the Acting SJA’S ambush. The tone, tenor, and bottom line of the supplemental recommendation is 180-degrees from the tone and tenor of the original recommendation. In the initial recommendation, the SJA said appellant’s record indicated excellent duty performance. In his ex parte communication, the Acting SJA completely contradicts the earlier conclusion.
In my judgment, the Acting SJA’s comments were fair and accurate. Furthermore, although I do not share Judge Crawford’s view about defense counsel’s ethics, the approach to the convening authority certainly invited the attack by failing to make mention of any adverse personnel information in appellant’s record. Nevertheless, the acting SJA was required to serve his comments upon appellant. Because it may be a close call on whether to suspend the punitive discharge in this case, I would order the record returned for a new recommendation and convening authority’s, action. Thus, I concur in the result.
My personal preference would be for staff judge advocates to serve everything upon the accused. However, the quid pro quo for this notice would be that I would give the accused very limited time to respond to supplemental recommendations except by leave of the convening authority. Such a practice comports with fundamental notions of due process, i.e. notice of the evidence against an accused and an opportunity to be heard. It also comports with fundamental procedural rules such as are found in any court of law: Argument, reply, rebuttal to reply, etc. Lastly, it would eliminate the issues presented in these types of cases.
Military due process does not sanction trials by ambush. We give military members accused of crimes the right to hear and debate the evidence against them. That is all this case is about: The right to be heard. It is not about distortion of the facts. It is not about a lack of defense counsel candor or breach of ethics. It is about due process of law for a military accused.