(dissenting):
The convening authority impermissibly considered the extra-record evidence presented in the staff judge advocate (SJA)’s addendum to the post-trial recommendation. As Judge Wiss writes:
Where, though, consideration [by the convening authority] of the sufficiency of the trial evidence of guilt is undertaken voluntarily, that consideration perforce must be limited to the trial evidence. United States v. Mann, 22 MJ 279, 280 n. 2 (CMA 1986) (“The staff judge advocate cannot go outside the record to sustain a finding of guilty.”); United States v. Bethea, 22 USCMA 223, 225, 46 CMR 223, 225 (1973) (“Undeniably, evidence not presented at the trial cannot be used to support or reverse a conviction,” quoting United States v. Lanford, 6 USCMA 371, 379, 20 CMR 87, 95 (1955).). See also United States v. Thompson, 33 MJ 218, 222 n. 5 (CMA 1991) (“This [fact] was raised during testimony of one witness during the investigation under Article 32, but was never asserted during any testimony at trial, so it cannot be considered. [Citing Bethea,]”), cert. denied, - U.S. *452-, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992).
40 MJ at 451. I commend the majority opinion for supporting this correct legal proposition with ample case law.
However, the majority cites no authority for its implied holding that extra-record evidence may be included in the SJA’s addendum in rebuttal to extra-record evidence of innocence* presented in appellant’s clemency petition to the convening authority. I decline to join this holding and would remand this ease for a new recommendation and action by a general court-martial convening authority. United States v. Mann and United States v. Bethea, both supra; see also United States v. Thompson, supra.
The majority states that "[t]he clemency petition, however, did not purport to attack the sufficiency of the trial evidence to sustain the guilty finding.... [Instead] it sought to add to the trial evidence in an effort to persuade the convening authority, as a matter of executive clemency, to ignore the trial evidence and to set aside the cocaine conviction.” 40 MJ at 451. Again, no authority is cited for the proposition that a post-trial assertion of a defense is not intended to “attack the sufficiency of the trial evidence to sustain the guilty finding."