PATTERSON – ARMY 20061074

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, CHIARELLA, and MAGGS

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 AMANDA K. PATTERSON**

**United States Army, Appellant**

ARMY 20061074

U.S. Army Air Defense Artillery Center and Fort Bliss

Jeffrey Nance, Military Judge

Colonel Randy T. Kirkvold, Staff Judge Advocate

For Appellant:  Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan, JA; Captain Alison L. Gregoire, JA (on brief).

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA; Major Elizabeth G. Marotta, JA; Major Karen J. Borgerding, JA, USAR (on brief).

13 June 2008

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SUMMARY DISPOSITION

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Per Curiam:

In her first assignment of error, appellant alleges that the Staff Judge Advocate’s (SJA) statement in his addendum regarding the intention of the parties to have appellant’s case referred to a Special Court-Martial empowered to adjudge a bad-conduct discharge was “new matter,” which she was denied the opportunity to comment on prior to action.  However, according to the discussion section that accompanies Rule for Courts-Martial [hereinafter R.C.M.] 1106(f)(7), “new matter” does not include “discussion  . . . of the correctness of the initial defense comments on the recommendation.”  What the SJA was doing in his addendum was simply that — discussing whether appellant was correct in her R.C.M. 1105/1106 submission in objecting to his characterization of which type of court-martial the parties had agreed would try appellant.  In addressing appellant’s objection, the SJA relied on excerpts from the transcript which demonstrated that appellant understood she would be tried by a Special Court-Martial empowered to adjudge a bad-conduct discharge and that the statement in her R.C.M. 1105/1106 submission to the contrary was incorrect.  The SJA’s statements were not “new matter,” and as such, appellant was not entitled to comment on them prior to action.  The addendum “merely stated an obvious fact in the course of advising the convening authority on the ‘correctness of the initial defense comments on the recommendation.’”  *United States v. Scott*, 66 M.J. 1, 4 (C.A.A.F. 2008).**Given this, appellant has failed to demonstrate any prejudice.  

Concerning appellant’s second assignment of error, we conclude that the SJA’s erroneous characterization of appellant’s request to defer forfeitures as a request to waive forfeitures was new matter.  However, appellant suffered no prejudice.  Under article 58b, automatic forfeitures take place only “during any period of confinement.”  A soldier who receives a sentence of confinement for six months, but who is not in fact confined because of confinement credit, is not subject to automatic forfeitures.  Appellant was not entitled to receive a deferment of forfeitures as she had no forfeitures to defer.  Thus, no relief is warranted.

CHIARELLA, Judge, concurring in the result:

Regarding appellant's first assignment of error, I concur in the result, believing that appellant has not demonstrated any prejudice here.  However, I believe that the addendum’s discussion as to what the parties intended the pretrial agreement to mean was “new matter” which should have been provided to the accused for an opportunity to comment upon before submission to the convening authority.  

The essence of post-trial practice is basic fair play — notice and an opportunity to respond.  *United States v. Leal*, 44 M.J. 235, 237 (C.A.A.F. 1996).  As such, in order to avoid unnecessary appellate litigation, SJAs should liberally construe the term “new matter.”  See Id. at 237.  Here, in an attempt to bolster the accuracy of the SJAR, the addendum went beyond merely stating whether the defense comments regarding the SJAR were correct when it introduced discussion as to what all the parties, including the appellant, allegedly intended the pretrial agreement to mean.  As this information was not contained in the original SJA recommendation or the record of trial, I believe this is new matter.  However, appellant has not demonstrated that she suffered any prejudice.  An accused is not entitled to a new SJAR and action if the new matter is “neutral, neither derogatory nor adverse to appellant, or if it is so trivial as to be nonprejudicial.”  *United States v. Frederickson*, 63 M.J. 55, 56 (C.A.A.F. 2006).  Moreover, if the SJA did raise new matter in the addendum, the accused must demonstrate prejudice by identifying what, if anything, she would have submitted to “deny, counter, or explain” the new matter.  *United States v.**Chatman*, 46 M.J. 321, 323 (C.A.A.F. 1997).  The new matter here was neutral.  It was not adverse to appellant.  Appellant additionally failed to set forth what she would have submitted to rebut the new matter.  Given these factors, appellant's assignment of error is without merit as the new matter was not prejudicial.

I concur with the majority in their analysis of appellant’s second assignment of error.  While the mischaracterization of appellant's request for a deferment of forfeitures was new matter, appellant did not suffer any prejudice.  Her second assignment of error is thus without merit.

The findings of guilty and the sentence are affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

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