(concurring in part and in the result):
I agree with the result reached by the majority but I am troubled by the majority’s treatment of the question of “new matter” in the first addendum. The majority does not identify what part of the staff judge advocate (SJA)’s addendum was “new matter” and fails to articulate a legal basis for concluding that it was “new matter.”
Appellant asserted that he was inadequately represented, and the SJA responded that appellant was ably represented. This re*453sponse was not “new matter.” See RCM 1106(f)(7), Discussion, Manual for Courts-Martial, United States (1994 ed.) (“‘New matter’ does not ordinarily include any discussion by the staff judge advocate ... of the correctness of the initial defense comments on the recommendation.”).
Appellant also asserted that there was a conflict of interest caused by Captain Watson’s membership on the defense team. The SJA responded that “Captain Watson was not a counsel in the case.” The record does not reflect the basis for the SJA’s response. If the SJA’s basis for this response was information from outside the record, the response was “new matter.” RCM 1106(f)(7), Discussion. If, however, the SJA’s response was merely a conclusion based on the record, it was not new matter but merely a comment on the correctness of the defense assertion. While the record reflects that Capt Watson did not enter a formal appearance in the case, was not introduced as a member of the defense during trial, and did not sit at the counsel table at trial, I cannot determine if that was the basis for the SJA’s comment.
Notwithstanding my inability to determine the factual basis for the SJA’s comment, I believe that his comment was new matter because it introduced a new issue. Appellant’s complaint was that he was not competently represented because Capt Watson “was reluctant to invalidate his own work.” This complaint was premised on Capt Watson’s dual role as a member of the defense team, having previously acted for the prosecution in connection with preferral of charges. The SJA’s response did not address the quality of Capt Watson’s performance or the impact of his dual role on the defense representation, but instead raised a new factual issue: whether Capt Watson was in fact a member of the team.
This new issue blindsided the defense. Capt Willner (the individual counsel) had stated on the record that Capt Watson had assisted in the preparation of appellant’s case and had “taken confidences” from appellant as part of that preparation. Many of the documents presented to the convening authority on clemency were addressed to Capt Watson. The SJA mentioned none of these indicia of Capt Watson’s participation. Instead, the SJA made a factual assertion, at odds with the evidence of record, that appellant’s factual premise for his claim of ineffective representation was invalid. Since this addendum was not served, appellant had no opportunity to set the record straight for the convening authority. For these reasons I join the majority in holding that the record must be returned for a new post-trial recommendation and service on conflict-free defense counsel.
Turning to the second addendum on the issue of the sleeping court member, I disagree with the majority on the applicable standard of review as well as its conclusion that the procedural error was prejudicial. I question whether this was truly an addendum or an original recommendation. Under either classification, however, I agree that service on the defense was required. Since appellant was represented by conflict-free counsel at this point, however, the SJA’s failure to serve the second addendum must be tested for prejudice. See United States v. Hickok, 45 MJ 142 (1996); United States v. Pierce, 40 MJ 149 (CMA 1994); United States v. Moseley, 35 MJ 481 (CMA 1992). I find no prejudice.
The sleeping-juror issue was an allegation of legal error, not part of a clemency petition. Thus, the presumption of prejudice applied in United States v. Leal, 44 MJ 235, 237 (1996), and United States v. Jones, 44 MJ 242, 244 (1996), does not apply because this case does not involve the convening authority’s unfettered prerogative to grant clemency. Instead, appellant is entitled to relief only if his allegation of legal error had merit. He is not entitled to an erroneous recommendation from the SJA or an erroneous decision from the convening authority. See United States v. Welker, 44 MJ 85, 88-89 (1996).
The issue of the sleeping court member was thoroughly investigated at a post-trial evidentiary hearing. Appellant presented four witnesses who asserted that a member sitting to the left of the president had been sleeping during the court-martial. Four of the five court members were questioned. *454One court member, who had been sitting to the right of the president, had been reassigned and was unavailable to testify. The four court members who were questioned all denied sleeping or seeing any other member sleeping. Trial counsel and defense counsel from the original trial both testified that they saw no members sleeping. The military judge stated on the record that he had noticed no one sleeping. The Court of Criminal Appeals reviewed the issue and concluded that it was without merit. On this record, there is no way I can say that appellant was entitled to a different result on this issue.
For the foregoing reasons, I disagree with the majority’s conclusion that failure to serve the second addendum entitles appellant to relief. However, based on the SJA’s failure to serve his first addendum, I concur in the result reached by the majority.