Subj:  STAFF JUDGE ADVOCATE’S RECOMMENDATION ICO UNITED STATES V.*[RANK NAME ACCUSED SERVICE]*

**MEMORANDUM**

1. Purpose of Recommendation. This recommendation is to assist you in deciding what action to take on the sentence in the court-martial of *[Rank Name of Accused]*. This recommendation is required by Article 60 of the Uniform Code of Military Justice (UCMJ) and Rule for Courts-Martial (R.C.M.) 1106 of the Manual for Courts-Martial. The action you take is within your sole discretion and you are not required to review the case for legal errors or factual sufficiency. Before taking action you must consider the result of trial, this recommendation and any addendum thereto, any matters the accused submits pursuant to R.C.M. 1105 or 1106 asserting legal error or seeking clemency, and any matters properly submitted by a crime victim for which the accused was convicted, pursuant to R.C.M. 1105A. You may consider the record of trial, the personnel records of the accused, **if applicable:** any clemency recommendations of the sentencing authority and any other matter you deem appropriate. If you consider any matters that are adverse to the accused from outside the record, the accused must then be given an opportunity to comment or rebut said matters.  While you have some discretion in acting on the guilty findings or sentence, you must consider the results of trial (enclosure (1)), this recommendation and any addendum thereto, any matters properly submitted by the victim(s) of the crime(s) for which the accused was convicted, and any post-trial matters submitted by the defense.  You may also consider the record of trial and personnel record of the accused, **if applicable:** any clemency recommendations of the sentencing authority, as well as any other matters you deem appropriate. If, however, these other matters are adverse to the accused and not included in the record of trial, the defense must be given the opportunity to comment (reference (a)).  **If applicable:** Further, you may not consider any matters that relate to the victim’s character except to the extent such information was previously admitted as evidence at trial.

2. Results of Trial.****I have reviewed the report of results of trial, enclosure (1), and it accurately reflects the charges, findings, and sentence adjudged in this case, as well as any applicable confinement credit.  

3. Pretrial Agreement.  

O**ption 1****There is no pretrial agreement in this case.***OR***

**Option 2** Enclosure (2) is a copy of the pretrial agreement. ***AND******Alt A*** That agreement had no effect on the sentence adjudged. ***OR Alt B*** A review of the record of trial indicates that the accused has complied with the terms of the agreement and is entitled to the agreed upon benefit. Accordingly, you are required to *[list actions required to fulfill CA’s obligations under the PTA].*

***OR***

**Option 3****Enclosure (2) is a copy of the pretrial agreement.  On *[date]* the accused breached the terms of the pretrial agreement by *[general description of the basis for vacating the agreement and the nexus between that conduct and a specific requirement within the PTA. For example: On (date), Rank FName LName, USCG, held a vacation hearing under R.C.M. 1109, and determined ....  The order vacating the suspension of (punishment) was issued on (date)*(enclosure (3))].  ***AND******Alt A***Therefore, you are not obligated to fulfill the terms of the agreement. However, you may, as a matter of clemency or otherwise, take whatever action you deem appropriate in approving or executing the findings and sentence.  ***OR Alt******B***Further, as a result of *[Rank Name of Accused]*’s breach, on *[date]*you withdrew from the PTA. Because the PTA is no longer effective, your authority to act on the findings and sentence is limited by Article 60, UCMJ (reference (b)). However, within those limitations, you may, as a matter of clemency or otherwise, take whatever action you deem appropriate in approving or executing the findings and sentence.

4. Recommendation of the Sentencing Authority.****

**Option 1**I have reviewed the record of trial and there is no clemency recommendation by the sentencing authority made in conjunction with the announced sentence. ***OR***

**Option 2** The sentencing authority, in conjunction with the announced sentence, recommends the following clemency: *[if possible, quote exact language from the record].*

*[#]*.  Legal Error.****

**Option 1**The defense has not yet raised any allegations of legal error, but may do so in response to this recommendation. ***OR***

**Option 2**The defense has raised allegations of legal error. Having reviewed these allegations, I disagree with the defense’s assertion of error. Thus, no corrective action on the findings or sentence is warranted (enclosure (*#*)). ***OR***

**Option 3**The defense has raised allegations of legal error. Upon review of these allegations, I assume, without conceding, that *[specify]*constitutes error; however, no corrective action on the findings or sentence is warranted. **If applicable:** I disagree with the defense’s other allegations of error (enclosure (*#*))].***OR***

**Option 4**The defense has raised allegations of legal error.  Upon review of these allegations, I agree that *[specify]* constitutes error and corrective action is warranted.  **If applicable:** I disagree with the defense’s other allegations of error(enclosure (#)). ***OR***

**Option 5** The defense has raised allegations of legal error. Upon review of these allegations, I agree that *[specify]* constitutes error and corrective action is warranted. However, the appropriate corrective action exceeds the scope of your authority under Article 60, UCMJ, to modify ***Alt A*** the findings ***OR Alt B*** the adjudged sentence ***OR Alt C*** the findings and adjudged sentence. **If applicable:** I disagree with the defense’s other allegations of error.  ***OR***

**Option 6** The defense has not raised any allegation of legal error.  Nonetheless, I have found the following error(s): *(specify)*. ***Alt A However***, no corrective action on the findings or sentence is warranted. ***OR Alt B***Further, corrective action is warranted, specifically, [*describe action*] **If applicable:**However, the appropriate corrective action exceeds the scope of your authority under Article 60, UCMJ, to modify ***Alt A*** the findings ***OR Alt B*** the adjudged sentence ***OR Alt C*** the findings and adjudged sentence. ******

*[#]*.  Post-Trial Matters Submitted by the Accused.****

**Option 1** Post-trial matters by the defense will be provided when received. You are required to consider these matters in determining the action you take on the findings of guilty or on the sentence. If, however, the accused does not submit matters within the time allowed, the accused will have waived this right. ***OR*****

**Option 2** Post-trial matters submitted by the defense are contained in enclosure (*#*). You are required to consider these matters in determining the action you take on the findings of guilty or on the sentence. 

*[#]*.  Post-Trial Matters Submitted by the Victim. ****

**Option 1**Post-trial matters submitted by the victim will be provided when received.  You are required to consider these matters in determining the action you take on the findings of guilty or on the sentence. If, however, the victim does not submit matters within the time allowed, the victim will have waived this right. **OR**

**Option 2** Post-trial matters submitted by the victim are contained in enclosure (#). You are required to consider these matters in determining the action you take on the findings of guilty or on the sentence.****

*[#]*.  Requests for Deferment.****

**Option 1**There have been no requests to defer any part of the sentence, either as adjudged or as mandated under the UCMJ.  ***OR***

**Option 2** On *(date),* you (approved) (denied) the defense’s request to defer *(specify)*. If applicable: The deferment period began on *[date: the date on which the sentence would otherwise have become effective]* and ***Alt A****[ended on date]****OR Alt B*** will end when you take action in accordance with R.C.M 1107.  Enclosure (*#*) contains the matters related to the deferment request and your action.   **

*[#]*.  Companion Cases.****Companion cases are other cases referred to trial by you that involve individuals who, along with the accused, engaged in criminal conduct in a concerted effort to achieve a common goal. 

****Option 1** United States v. *[Rank Name of 2nd Accused]* is a companion case and should be considered in determining the appropriate action. *[Provide some background on the companion case, including the results of trial in the companion case, so that the convening authority can make a comparative assessment of the sentences.]  **OR***

**Option 2** United States v. *[Rank Name of 2nd Accused]* is a companion case. That case is pending trial by court-martial.

*[#]*.  Post-Trial Processing.****Case law requires you take action within 120 days of the completion of trial, per references (d).

**Option 1** This post-trial processing objective will be met.  ***OR***

**Option 2****Alt A** There is ***OR*****Alt B** There will likely be delay in the post-trial processing of this case.  This delay is caused by *[specifics, “administrative error” is not acceptable. **Specific reasons** and **dates** must support the narrative. If the delay is caused by negligence, admit the error and assess for prejudice, which may or may not require some corrective action on the sentence.]*.****Alt A** Despite the delay, no corrective action is warranted. ***OR*******Alt B** As a result of the delay, corrective action is appropriate. 

*[#]*.  Other Matters**.** The Record of Trial and the accused’s personnel records will be provided if you desire to review them prior to taking action.

*[#]*. Straddling Offenses Case.****The accused was found guilty of offenses occurring both before and on or after 24 June 2014. Accordingly, you may take whatever action you deem appropriate on the guilty findings and/or on the sentence **If applicable****:**, except that if you approve a finding of guilty for *[specify applicable offense(s)],* which have (*a)* mandatory minimum sentence*(s) under Article 56(b), UCMJ, [those][that]* minimum*(s)* sentence*(s)* will still apply.

*[#]*.  Limitations on Action on Findings

*[α]*.  Qualifying Offenses.********The accused was found guilty of (a) qualifying offense(s):

*[Charge/Specification: May be a summarized specification.]*

Accordingly, you may act to dismiss the charge(s) or specification(s) by setting aside (the) finding(s) of guilty, or change (a) finding(s) of guilty to an offense(s) that (is a) (are) lesser included offense(s) of the qualifying offense(s).  If you choose to take such action on (a) finding(s), you must include a written explanation for such action in your Convening Authority’s Action.

*[α]*.   Other than Qualifying Offenses. The accused was found guilty of (an) other than qualifying offense(s): 

*[Charge/Specification: May be a summarized specification.]*

Accordingly, the offense(s) will be approved by operation of law upon your action on the sentence.  

*[α]*.   Offenses Committed Prior to 24 June 2014.****The accused was only found guilty of (an) offense(s) committed before 24 June 2014. Accordingly, you may act to dismiss the charge(s) or specification(s) by setting aside (the) finding(s) of guilty, or change (a) finding(s) of guilty to an offense(s) that (is a) (are) lesser included offense(s) of the pre-24 June 2014 offense(s).  

*[#]*.  Limitations on Sentencing Action****

*[α]*.  Recommendation of the Trial Counsel.****

**Option 1**The trial counsel in this case has made no recommendation for clemency.  ***OR***

**Option 2**I have reviewed the trial counsel memorandum of substantial assistance (enclosure (*#*)), which includes a recommendation for clemency. As a matter within your sole discretion, in recognition of *[Rank Name of Accused]* substantial assistance in ***Alt A*****the investigation of ***OR Alt B*****the prosecution of***OR Alt C***the investigation and prosecution of*[United States**v. [Rank Name of 2nd Accused]]* and the Trial Counsel’s recommendation for clemency, you may take whatever action you deem appropriate in approving or executing the sentence. 

*[α]*.  Mandatory Minimum Sentence.****The accused was found guilty of (*an)* offense(*s*) with (*a*) mandatory minimum sentence*(s)* of *[specify]***if applicable:** under Article 56(b), UCMJ.  **Alt A**Therefore, you may not act to disapprove, commute, or suspend that portion of the adjudged sentence. ***OR*Alt B**However, pursuant to the pre-trial agreement in this case, despite the mandatory minimum sentence, you are required to *[specify]*.***OR* Alt C**However, pursuant to the pre-trial agreement in this case, despite the mandatory minimum sentence, you are required to commute the adjudged dishonorable discharge to a bad conduct discharge.  If you act to disapprove, commute, or suspend, in whole or in part, any portion of the sentence, then you must provide a written explanation of the reasons for doing so in your action.

*****[α]*.  Other Limitations.****

**Option 1:**Because the adjudged sentence includes **if applicable:**confinement for more than six months **if applicable:***(and)* a *[specify punitive discharge]*, **if applicable:**except as provided in the pre-trial agreement, you may not disapprove, commute, or suspend the sentence of **if applicable:** confinement **if applicable:***(and)**[specify punitive discharge]*. However you may act to defer *(those)**(that)* punishment(s), and may modify any other part of the adjudged sentence.” If you act to disapprove, commute, or suspend, in whole or in part, any portion of the sentence, then you must provide a written explanation of the reasons for doing so in your action.  ***OR*****

**Option 2:** Because the adjudged sentence includes neither confinement for more than six months nor a punitive discharge, you may act to modify any part of the adjudged sentence."  However, because the maximum sentence applicable to the offense(s) of *[specify]* includes confinement for more than 2 years, if you act to disapprove, commute, or suspend, in whole or in part, any portion of the sentence, then you must provide a written explanation of the reasons for doing so in your action.

*[#]*.  **Recommendation****.**

**Option 1** Having reviewed the record of trial **if applicable:** and the matters submitted by the defense **if applicable:** and the victim(s), I recommend that you approve the sentence as adjudged and **if applicable:** , except for the punitive discharge, order the sentence executed in accordance with the UCMJ, the MCM, and applicable regulations*.***If applicable:**  The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal. ***OR***

**Option 2**  Having reviewed the record of trial **if applicable:** and the matters submitted by the defense **if applicable:** and the victim(s), pursuant to the pretrial agreement, I recommend that**you *[specify]* and **if applic**able:*,*except for the punitive discharge, order the sentence executed in accordance with the UCMJ, the MCM, and applicable regulations. **If applic**able: The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal. ***OR***

**Option 3** Having reviewed the record of trial **if applicable:** and the matters submitted by the defense **if applicable:** and the victim(s), as a matter of clemency, I recommend that you approve the sentence as adjudged, however, *[specific action recommended]* and**if applicable:****except for the punitive discharge, order the sentence executed in accordance with the UCMJ, the MCM, and applicable regulations*.***If applicable:**  The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal. ***OR***

**Option 4**  Having reviewed the record of trial **if applicable:** and the matters submitted by the defense **if applicable:** and the victim(s), in order to address the legal error noted above, I recommend that you approve the sentence as adjudged, but take the following corrective action: *[specific actions recommended]*.  Then **if applicable:****except for the punitive discharge, I recommend that you order the sentence executed in accordance with the UCMJ, the MCM, and applicable regulations*.***If applicable:****The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal. ***OR***

**Option 5**  Having reviewed the record of trial **if applicable:** and the matters submitted by the defense **if applicable:** and the victim(s), I recommend that you approve the sentence as adjudged, but take the following corrective action: *[specific actions recommended].*  Then,**if applicable:** except for the punitive discharge, order the sentence executed in accordance with the UCMJ, the MCM, and applicable regulations. **If applicable:****The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal***.***

*[#]*.  **DNA Collection.**This case requires DNA collection, thus the order promulgating your action must comply with applicable notice requirements. 

**#**

Copy to: **

Defense Counsel

Victims’ Legal Counsel

Civilian Victims’ Counsel

Victim

-----------------------------------------------------------------------------

Acknowledgement of Service

From:  Defense Counsel

To:    Staff Judge Advocate

Subj:  STAFF JUDGE ADVOCATE’S RECOMMENDATION ICO UNITED STATES V. *[RANK NAME ACCUSED SERVICE]*

1.  I acknowledge that I received the Staff Judge Advocate’s recommendation in the subject case on ___________________ and, unless I request and am granted additional time, that I have ten days to submit post-trial matters in accordance with R.C.M. 1105 and 1106, MCM (2012 ed.). If, after ten days, I have not submitted such matters that right will be deemed waived and the case will be forwarded to the Convening Authority for action.

*[I. M. DEFENSE]*

-----------------------------------------------------------------------------

FIRST ENDORSEMENT on STAFF JUDGE ADVOCATE’S RECOMMENDATION

*[Date]*

From:  Defense Counsel

To:    Staff Judge Advocate

Subj:  RCM 1105/1106 MATTERS ICO US v *[RANK NAME ACCUSED SERVICE]*

1.   **Option 1** I have advised the accused of the purpose and advantages of submitting matters under R.C.M. 1105, and the accused expressly desires to waive the right to submit matters. Further, I have no matters to submit in accordance with R.C.M. 1106. ***OR***

**Option 2** I have already submitted matters on *_____________*, and I do not have additional matters to submit in accordance with R.C.M. 1105. I **Alt A** have ***OR*******Alt B** have no matters to submit in accordance with R.C.M. 1106 **If applicable:** ,which are enclosed.  ***OR***

**Option 3** Per R.C.M. 1105 and 1106 the enclosed matters are submitted. 

*[I. M. DEFENSE]*

5814

*[Date]*

From:  Staff Judge Advocate

To:    Convening Authority

Subj:  STAFF JUDGE ADVOCATE’S ADDENDUM TO THE RECOMMENDATION ICO UNITED STATES V. *[RANK NAME ACCUSED SERVICE]*

Ref:   (a) SJA ltr 5814 SJA of *[date]* (SJAR)

Encl:  (1) DC ltr 5814 of *[date]* (Post-trial matters)

          (#) DC ltr 5814 of *[date]* (Response to Addendum)

    (#) Statement of *[INI of Victim]*

1. This is an addendum to the Staff Judge Advocate Recommendation dated *[date]* (reference (a)). 

2.  Post-Trial Matters Submitted by the Accused**.**Post-trial matters submitted by the defense are contained in enclosure (1). You are required to consider these matters in determining whether to approve or disapprove any of the findings of guilty and the action you take on the sentence.

*[#]*. Post-Trial Matters Submitted by the Victim.  

**Option 1**On *(date),* the victim *(INI)* in this case was offered (a copy) (copies) of **if applicable:** the record of trial and the Staff Judge Advocate’s Recommendation, which (was)(were) declined. Further, the victim was provided the opportunity to submit written matters regarding clemency in accordance with Rule for Courts-Martial 1105A. ***Alt A***The victim did not submit matters. ***OR Alt B*** The victim waived (his)(her) right to submit matters in writing on *(date)*. ***OR Alt C***The victim submitted matters on *(date)*. You are required to consider these matters in determining whether to approve or disapprove any of the findings of guilty and the action you take on the sentence.

**Option 2**On *(date),* the victim *(INI)* in this case was given (a copy) (copies) of **if applicable:** the record of trial and the Staff Judge Advocate’s Recommendation. Further, the victim was provided the opportunity to submit written matters regarding clemency in accordance with Rule for Courts-Martial 1105A. ***Alt A***The victim did not submit matters. ***OR Alt B*** The victim waived (his) (her) right to submit matters in writing on *(date)*. ***OR Alt C***The victim submitted matters on *(date)*(enclosure (*#*). You are required to consider these matters in determining whether to approve or disapprove any of the findings of guilty and the action you take on the sentence.

*[#]*.  Legal Error.****

**Option 1**The defense has not yet raised any allegations of legal error. ***OR***

**Option 2**The defense has raised allegations of legal error. Having reviewed these allegations, I disagree with the defense’s assertion of error. Thus, no corrective action on the findings or sentence is warranted (enclosure (*#*)). ***OR***

**Option 3**The defense has raised allegations of legal error. Upon review of these allegations, I assume, without conceding, that *[specify]*constitutes error; however, no corrective action on the findings or sentence is warranted. **If applicable:** I disagree with the defense’s other allegations of error (enclosure (*#*))].***OR***

**Option 4**The defense has raised allegations of legal error. Upon review of these allegations, I agree that *[specify]* constitutes error and corrective action is warranted.  **If applicable:** I disagree with the defense’s other allegations of error (enclosure (#)). ***OR***

**Option 5** The defense has raised allegations of legal error. Upon review of these allegations, I agree that *[specify]* constitutes error and corrective action is warranted.  However, the appropriate corrective action exceeds the scope of your authority under Article 60, UCMJ, to modify ***Alt A*** the findings ***OR Alt B*** the adjudged sentence ***OR Alt C*** the findings and adjudged sentence. **If applicable:** I disagree with the defense’s other allegations of error.  ***OR***

**Option 6** The defense has not raised any allegation of legal error.  Nonetheless, I have found the following error(s): *(specify)*. ***Alt A However***, no corrective action on the findings or sentence is warranted. ***OR Alt B***Further, corrective action is warranted. **If applicable:**However, the appropriate corrective action exceeds the scope of your authority under Article 60, UCMJ, to modify ***Alt A*** the findings ***OR Alt B*** the adjudged sentence ***OR Alt C*** the findings and adjudged sentence. 

*[#]*.  New Matters.  

O**ption 1** As no new matters, as defined under R.C.M. 1106(f), have been raised by this addendum, the case is now ready for your action.  ***OR***

****Option 2** Because new matters have been raised **Alt A**by this addendum ***OR*Alt B**

(and) by the submission of matters by the victim(s) for your consideration, the defense has been provided the opportunity to submit additional comments. The defense ***Alt A***had, as set out in enclosure (*#*)*, **OR Alt B*** had no further comment. As with all other defense submissions, you must consider these when taking your action. 

*[#]*.  **Recommendation.**

**Option 1** Having reviewed the record of trial, **if applicable:** as well as the matters submitted by the defense **if applicable:** and the victim(s), my recommendation remains the same: approve and **If applicable:**, except for the punitive discharge,**order the sentence executed **as applicable:****as adjudged***OR***in accordance with the pretrial agreement and the UCMJ, MCM, and applicable regulations*.***If applicable:**  The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal.***OR***

****Option 2** Having reviewed the record of trial, as well as matters submitted by **Alt A**the accused ***OR*Alt B** the victim(s) ***OR*Alt C**the accused  and the victim(s), I have reconsidered my previous recommendation and now, as a matter of clemency, recommend that you approve the sentence as adjudged, however, *[specific action recommended**]*. **If applicable:**  The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal.***OR***

****Option 3** In order to address the legal error **If applicable:** as noted in the original recommendation, I recommend you approve the sentence as adjudged but take the following corrective action:  (*specific action recommended).***If applicable:**  The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal.***OR***

****Option 4****If applicable:** As addressed in the original recommendation, (I)n order to address potential prejudice caused by post-trial delay, I recommend you approve the sentence as adjudged but take the following corrective action:  *[specify]*.  **If applicable:**  The adjudged punitive discharge cannot be ordered executed until the case is deemed final on appeal.**

*[I. M. SJA]*

**If applicable:***[Acting]*

Copy to: **

Defense Counsel

Victims’ Legal Counsel

Victim

-----------------------------------------------------------------------------***(IF NEW MATTERS RAISED*)**

Acknowledgement of Service of Addendum to the SJAR 

From:  Defense Counsel

To:    Staff Judge Advocate

Subj:  STAFF JUDGE ADVOCATE’S ADDENDUM TO THE RECOMMENDATION ICO UNITED 

       STATES V. *[RANK NAME ACCUSED SERVICE]*

1.  I acknowledge that I received the Staff Judge Advocate’s addendum to the recommendation in the subject case on ___________________.  Since the addendum raises new matters, I understand I have ten days to submit comments addressing those matters.  

*[I. M. DEFENSE]*

-----------------------------------------------------------------------------

FIRST ENDORSEMENT on Addendum to the SJAR

From:  Defense Counsel

To:    Staff Judge Advocate

1.  I do (*not*) have matters in response to the addendum **If applicable:** (enclosure (*#*)).       

� EMBED Word.Picture.8 ���

�Green text indicates that a choice is required. Red text indicates language that may be required. If the [red text] is italicized and bracketed, it will require customized information.

�See RCM 1105A; see also RCM 1106(d)(3) and  RCM 1107(b)(3)(A)(iv).

�I�f applicable, required. RCM 1106(d)(3).   

Note that a copy of the Report of Results of Trial with the findings, sentence, and confinement credit must be provided to the CA for consideration.  RROT are often incorrect, so be sure to compare the RROT with the sentence announcement in the ROT.  If the RROT is incorrect, secure a corrected RROT from the Trial Counsel.

I�f applicable, required. RCM 1106(d)(3).   

� R.C.M. 705(c) requires the convening authority to comply with the procedural requirements of R.C.M. 1109 before the benefits of a PTA can be withdrawn.  See US v. Hunter, 65 M.J. 399 (C.A.A.F. 2009).  

�When CA withdraws from a PTA as a consequence of breach and Article 60 proscribes clemency not pursuant to a PTA.  

�Required. RCM 1106(d)(3).   

Required�.  RCM 1107(d)(4).

�Corrective action for legal error is limited by Article 60 for other than qualifying offenses. Even in cases of legal error, findings may not be disapproved or commuted to lesser included offenses for many offenses.  Further, CAs may not disapprove, commute, or suspend adjudged confinement over six months or punitive discharges.  In such a case, the CA may be able to order a post-trial Article 39(a), UCMJ, session for remedy by the military judge.  Alternatively, SJAs may note the legal error and a recommended remedy in the CAA for consideration by the NMCCA.  

�The SJA is not required to examine the record for legal errors, but may do so when appropriate.

�Recommended language for RCM 1105 matters.

�Under R.C.M. 1105A, a victim is defined as person who has suffered direct physical, emotional, or pecuniary harm as a result of an offense for which the accused was found guilty.  When the victim is under 18 years of age, incompetent, incapacitated or deceased, see R.C.M. 1105A(b) for those included as the victim.

�Required, if applicable. Added to comply with new R.C.M. 1106(d)(3) and 1106(f)-(f)(1). You must advise the CA he/she must consider it in taking action on the findings and sentence.

�Recommended.

�Recommended only if  there are companion cases. 

�Recommended.  Completion of trial encompasses any post-trial Art 39(a) sessions.

�If applicable recommended.  Applicable when an accused has been found guilty of at least one offense occurring before 24 June 2014, and at least one offense occurring on or after 24 June 2014.  In such cases, effective 18 Jan 15, the full-FY14 NDAA Article 60 range of action on findings and sentence is available, except that mandatory minimum sentences apply.

�Recommended only if this paragraph applies.  If it does apply, then omit the paragraphs entitled "Qualifying Offenses," "Other than Qualifying Offenses," "Mandatory Minimum Sentence,�" and "Limitations on Sentence Action" (but include the paragraph on "Recommendation of the Trial Counsel").�

�Use this language if the accused was convicted of offenses with mandatory minimum sentences.  Note that Article 60 as amended in FY14 and FY15 NDAAs has superseded RCM 1107(d)(2), which will be updated via Executive Order.  

�If applicable, recommended.  Article 60 defines a qualifying offense as an offense 

 That is not a charged as Article 120, 120b, or 125;

 With a maximum punishment of 2 years confinement or less; AND

 For which the adjudged sentence does not include a punitive discharge or confinement for more than 6 months.

Item (3) may be difficult to determine if there are convictions for relatively minor offenses that may not have incurred adjudged confinement for more than six months and/or a punitive discharge.  See Practice Advisory #4-15 for more information.

�Use only if the case ONLY has convictions for offenses committed before 24 June 2014.  If the case includes convictions for offenses committed BOTH before 24 June 2014 and after 23 June 2014, then use the "Straddling Offenses Case" paragraph and omit this paragraph.  

�Use option 1 of this paragraph only if applicable and not addressed in the paragraphs regarding PTAs, TCMSAs, or straddling offenses. 

�Required if applicable.  If option 2 is applicable, all other subparagraphs in the "Limitations on sentencing authority" paragraph may be omitted.  

If a TCMSA applies in the case, this subparagraph may be omitted.

�Under Article 56(b), a dismissal or dishonorable discharge is required for conviction for violation of Article 120 (a) or (b), Article 120b (a) or (b), Article 125 (a) or attempts to commit those offenses.  Other offenses with mandatory minimum sentences include Article 106 and Article 118(a) (1) and (4).  There are no limitations on action for death (Art 107). For Art. 118(a) and (4), the mandatory minimum punishment may be disapproved, commuted,  or suspended pursuant to a PTA, upon receipt of a TCMSA, if part of a straddling offenses case, or if the offenses were committed prior to 24 June 2014. 

�This option only applies to mandatory minimum sentences for the following offenses:  Article 106 and Article 118(a) (1) and (4).  This option does not apply to Article 56(b) cases (penetrative sex offenses or attempts thereof).

�In Article 56(b) cases, (penetrative sex offenses or attempts thereof), this option only applies to DDs (NOT dismissals).

�This subparagraph may be omitted if the TCMSA subparagraph option 2 is used.

�For offenses committed 24 June 14 or after, unless an exception applies, the CA may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

�While written explanation is not required for action on sentence in all cases, the determination of when it is required may require complicated analysis.  JMJ recommends sidestepping this analysis by including written explanation in all cases of actions on sentence.

�While written explanation is not required for action on sentence in all cases, the determination of when it is required may require complicated analysis.  JMJ recommends sidestepping this analysis by including written explanation in all cases of actions on sentence.

�Required.  Look for the following issues in determining your recommendation:

(1) Multiple specification cases, particularly when action on findings may be desired.  These cases may require complicated sentence analysis.

(2) Mandatory minimum sentences.

(3) Straddling offenses cases. 

�Clemency may be limited by Article 60 (2015). Corrective action is limited by Article 60.  Under RCM 1107(c), findings must be set aside prior to any rehearing.  Therefore, until RCM 1107 is updated to account for recent changes to Article 60, remedies for error are limited.  

� Corrective action may be limited by Article 60.  Under RCM 1107(c), findings must be set aside prior to any rehearing.  Therefore, until RCM 1107 is updated to account for recent changes to Article 60, remedies for error are limited.  

�Corrective action is limited by Article 60.  Under RCM 1107(c), findings must be set aside prior to any rehearing.  Therefore, until RCM 1107 is updated to account for recent changes to Article 60, remedies for error are limited.  

�Not required, but recommended.

�If victim is represented by counsel, service on counsel is appropriate. Service on both is not necessary.

�If the addendum does not raise new matters, there is no requirement to wait 10-days for defense response. The MCM uses the term “addendum” to refer to anything after the initial SJAR, but the title itself does not trigger an “opportunity to respond” requirement.

�The FY14 NDAA requires that victims of crimes for which the accused was found guilty be offered the opportunity to submit matters for clemency, which, if submitted, must be considered by the CA.  The text in this paragraph should be tailored for each victim.  

“If a victim statement . . . is served on the accused prior to service of the recommendation, then that statement shall not be considered a ‘new matter’ when it is again served on the accused as an enclosure to the recommendation.” RCM 1106(f)(7), discussion (emphasis added).  However, victim statements submitted after service of the SJAR on accused should be treated as new matters.

�If the defense has raised legal error after your initial SJAR, you must address the issue in an addendum.  U.S. v. Hill, 27 M.J. 293 (C.M.A. 1988).

�Corrective action for legal error is limited by Article 60 for other than qualifying offenses.  Even in cases of legal error, findings may not be disapproved or commuted to lesser included offenses for many offenses.  Further, CAs may not disapprove, commute, or suspend adjudged confinement over six months or punitive discharges.  In such a case, the CA may be able to order a post-trial Article 39(a), UCMJ, session for remedy by the military judge.  Alternatively, SJAs may note the legal error and a recommended remedy in the CAA for consideration by the NMCCA.  

�The SJA is not required to examine the record for legal errors, but may do so when appropriate.

�Recommended.

�New matters are broadly interpreted and C.A.A.F. will not hesitate to remand for a new action in close cases.  See U.S. v. Fredrickson, 63 M.J. 55 (C.A.A.F. 2006).  The rule of thumb is: the less said in the addendum, the better, and, when in doubt, serve the addendum on the defense counsel and the accused, allowing them the opportunity to comment.

�Merely addressing legal error or the correctness of your original recommendation in response to defense comments is not “new matters.”  However, if you introduce facts or new legal theories that were not otherwise addressed before or are outside the record of trial, these will be “new matters.”   Thus, when the defense raises legal error in response to your original SJAR, it is preferable simply to state your agreement or disagreement with the defense’s assertion of legal error than to engage in a legal analysis of the underlying facts and law.  However, if the defense raises issues that require you to address matters outside the record, then it is better to augment the record through your addendum, including exhibits as necessary, and allow the defense another opportunity to comment, than to have the case sent back for a DuBay hearing.  See U.S. v Chapman, 46 M.J. 321 (1997).

� Ensure your recommendations are consistent.  If nothing has changed from the original SJAR, then your recommendation should not change.  If it has changed due to matters submitted by the defense, note that fact specifically.  Changes to your recommendation must be reconciled and clearly stated so that there is no question that the recommendation contained in the addendum is controlling.

�If your recommendation changes, even though it is in favor of the accused, consider it a new matter and allow defense counsel the opportunity to comment.  But see U.S. v. Catalani, 46 M.J. 325 (C.A.A.F. 1997)

� Article 60 limits the ability of the CA (except as described above) to grant clemency for other than qualifying offenses on findings or when an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

�Unless absolutely necessary to prevent an injustice, refrain from specific comments on the clemency matters raised by the defense.  Do not suggest that the convening authority should abdicate his responsibilities because members heard all the evidence, including the matters that now constitute the post-trial submissions, and decided upon the appropriate sentence. 

�Article 60 limits the ability of the CA (except as described above) to grant clemency for other than qualifying offenses on findings or when an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

�Article 60 limits the ability of the CA (except as described above) to grant clemency for other than qualifying offenses on findings or when an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

�The SJA must sign personally- DSJAs may not sign unless officially Acting as the SJA, which should be indicated.

�If victim is represented, service on counsel is appropriate.  Service on both is not necessary.

�“If a victim statement . . . is served on the accused prior to service of the recommendation, then that statement shall not be considered a ‘new matter’ when it is again served on the accused as an enclosure to the recommendation.” RCM 1106(f)(7), discussion (emphasis added).

�Any matters in response to the addendum should be listed as an enclosure to forwarding endorsement for all the SJAR material.

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