(dissenting):
The majority concludes that because of “new matter” in the staff judge advocate (SJA)’s second addendum, “there is an independent basis for requiring a new convening authority’s action in this case.” 45 MJ 447, 451. I agree with the majority that “the SJA erred by failing to serve on substitute defense counsel the second addendum, which addressed the issue of sleeping members.” Id. at 452. The majority asserts: “This error is compounded by the convening authority’s acting on appellant’s case even before the substitute counsel had reviewed the record of the post-trial proceedings.” Id. at 452. But any error for failing to serve the second addendum concerning the sleeping court members would not affect the substantial rights of appellant because both the prosecutor and the defense counsel agreed with the military judge that such an allegation was untrue. Thus, service of the second addendum for a defense response would now be a futile exercise.
Additionally, failure of defense counsel to raise this issue below constitutes waiver, absent establishing good cause or manifest injustice. United States v. Townsend, 43 MJ 205, 212 (1995) (Crawford, J., dissenting). Neither has been shown in this case.