## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MAHER, SULLIVAN, and HOLDEN Appellate Military Judges

UNITED STATES, Appellee

v. Lieutenant Colonel DAVID P. BARTLETT, JR. United States Army, Appellant

ARMY 20021244

United States Army Garris on, Fort George G. Meade Ronald W. White, Military Judge

Lieutenant Colonel Lisa Ande rson-Lloyd, Staff Judge Advocate

For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Major Allyson G. Lambert, JA; Captain Robert E. Desmond, JA (on brief).

For Appellee: Colonel Stev en T. Salata, JA; Lieute nant Colonel Theresa A. Gallagher, JA; Major William J. Nelson, JA; Captain Trev or B.A. Nelson, JA (on brief).

29 March 2007

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OPINION OF THE COURT

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HOLDEN, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of unpremeditate d murder in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918 [hereinafter UC MJ]. In accordance with a pretrial agreement, the military judge dism issed the greater offe nse of premeditated murder and the charges of ag gravated assault, obstruct ion of justice, and false swearing in violation of Articles 118, 12 8, and 134, UC MJ. A court composed of officer members sentenced ap pellant to a dismis sal and confinement for twenty-five years. The convening authority approved the adjudged sentence and, pursuant to the pretrial agreement, deferred and waived forfeiture of all pay and allowances occurring by operation of Arti cle 58b, UCMJ, and directed the waived forfeitures be paid to appellant’s children. The case is before us for review under Article 66(c),

UCMJ.BARTLETT – ARMY 20021244

2 Appellant asserts, inter alia , that “potential members from select branches [of the Army 1 ] were systematically excl uded from consideration fo r detail to appellant’s court-martial.” He avers the improper ex clusion was based on incorrect advice the staff judge advocate (SJA) provided the convening authority wh en selecting court members. Appellant urges us to set aside the senten ce and order a sentence rehearing. Appellant furthe r asserts the conveni ng authority improp erly considered

matters from outside the record when ac ting on the findings an d sentence. Both assignments of error warra nt discussion, bu t neither claim is meritorious.

FACTS

This case involves a murd er of some notoriety at appellant’s duty station, Carlisle Barracks, Pennsylv ania. The homicide and ensu ing efforts to conceal it

occurred in the late evenin g on 19 March 2002 a nd continued into the early morning hours the following day. Ap pellant and his wife had argued sporadically for several days over appellant’s renewed viewing of ad ult Internet pornogra phy after his wife’s prior warning that she would leave him if he did so. At approximately 2300 on the night of the murder, appellan t was upstairs in hi s two-story quarters, as were his

three children who were in their bedrooms. Appellant’s wife called out to him to come downstairs and review the pornography with her that he ha d viewed during her absence, and threatened to s how it to the children if he did not comply. Appellant grabbed an iron pestle from a mortar and pe stle set and went do wnstairs. He then killed his wife by striking her twenty time s in the head and face with the pestle, strangling her with a comput er power cord, and striking her five more times with the pestle. In addition to he r fatal injuries, th e victim suffered a broken jaw, broken nose, and two skull fractures ; the strangulation fractured two of the bones in her neck. Appellant attemp ted to make it appear that his wife had been the victim of a

sexual assault as well as a homicide in order to conceal his involvement in the killing. To that end, he removed her pants and underwear, pulled her shirt and bra up to expose a breast, and pe netrated her vagina with a knife sharpener, causing a one-inch-deep cut near her cervix. Appella nt then began to cl ean the crime scene, using rags to scrub pools of blood and blood sp atter from the floor, walls, and furniture. Appellant disposed of the rags and numerous items of evidence in trash

1 Branches of the Army are named to iden tify soldiers and un its traine d in the principal functions as sociated with that branch, e.g. , infantry, armor, etc. The

branches are classified into two broad categories: basic a nd special. Ar my Reg. 600- 3, Personnel—General: The Army Personnel Pr oponent System, para. 3-2 (28 Nov. 1997). Relevant to the instant case, the Medical , Dental, and Chaplain Corps

branches fall into the special branch category.BARTLETT – ARMY 20021244

3 bags he threw into trash r eceptacles at various neighbo rs’ homes. He wrapped the semi-nude corpse in a blan ket and waded into a nearby stream with the body. Appellant put the body in th e water under a small bridge , propped it up against a stone wall, and returned to his quarters. As he approached his quarters, appellant noticed the upstairs bedroom lights were on. His three children were awake and looking for their mother. Appellant lied to them, said she wa s running and would return shortly, and got them back into bed.

At approximately 0330, appellant report ed his wife missing to his children, relatives, and law enfo rcement officers. Members of the victim’s immediate family departed by plane and car for Carlisle Barr acks to help appellant find his wife; he had told them he “expected her to walk through the d oor any minute. ” Appellant

also made a sworn statement to investigators in support of his missing-person claim

in which he lied about the circumstances of her absence. Appellant said she had gone for a walk but never re turned. While the victim’s family members were enroute, the installation comm and mobilized every availabl e resource to search for the victim, includ ing all law enforcemen t assets. Military po lice went doo r-to-door looking for the victim, posted missing-person signs , and patrolled th e installation. Appellant’s neighbors partic ipated in the search. Wh ile the search was ongoing, appellant continued to clean his quarters in an effort to conceal or de stroy evidence. During the entire time of the search, appell ant also continued to provide the children with false hope that their mother would return soon.

At approximately 1130, one of appellant’s neighbors found the victim floating

face down in the water under the bri dge. Upon discover y of the body, the

installation command closed the post, as it appeared th at a member of the Army community had been sexually assaulted and murdered by an unknown killer who was still at large. Appellant re ceived an outpouring of sup port including me als, visits, and encouragement from symp athetic community members.

After the body was discover ed, Criminal Investigatio n Command (CID) agents searched appellant’s house for clues relating to th e crime. During the search, appellant rested on the couch while the victim’s younger brother and appellant’s

children watched tele vision. The victim’s brother testified th at at one point, appellant “pulled up a chair ne xt to [him], looked at [h im], and [appellant] looked like [appellant] needed to te ll [him] something.” When the victim’s brother asked if that were the case, ap pellant confirmed he wanted to talk. Appellant then said he

killed the victim because she discovered he viewed adult Inte rnet pornog raphy two weeks ago while she was out of town with the children a nd, “for the past 2 weeks she’d been giving him, in hi s words, ‘Holy Hell,’ and she’ d threatened to leave with the kids, called him a pervert. She wouldn’t let him near the two girls, wouldn’t let him bathe the two girl s . . . [and said] she had a moral obligation to call his future employer and let him know that he shouldn’t teach . . . children .” The victim’sBARTLETT – ARMY 20021244

4 brother asked appellant if he was aware that CID agents were in the hou se at that moment searching for evidence and received an affirmative reply. He then asked appellant, “Are they going to find anything? ” Appellant replied, “If they look, they will.” Based on appell ant’s admission to th e victim’s brother an d discovery of trace evidence indicating the murd er occurred inside the house, CID ag ents apprehended appellant.

Carlisle Barracks does no t have an assign ed commander who is designated as a general court-martial c onvening authority (GCMCA ). Accordingly, the government properly attached appellant to Fort Meade, Maryland, an installation with a GCMCA, for trial. In an 18 July 2002 memo randum, the Fort Meade SJA advised the convening authority that he was not restricted to an attached list of nominees in selecting panel members for the trial. The SJA refe rred to an enclosed alphabetical list of all offi cers in the Fort Meade general court-martial jurisdiction and told the convening authority he could se lect anyone senior to appellant in his jurisdiction whom he believed to be “best qualified for the duty by reas on of age, education, training, experience , length of service and judi cial temperament.” UCMJ

art. 25. The SJA fu rther advised the convening auth ority: “Pursu ant to Army Regulation (AR) 27-10, [2] Chapter 7, you may not detail officers assigned to the Medical Corps, Medical Specialist Corps, Army Nurse Corps, Dental Corps, Chaplain Corps, Veterinary Corps, nor thos e detailed to Inspector General duties as courts-martial panel members.” 3 Finally, the SJA noted in bold print in her memorandum: “You may deta il anyone within your GCM jurisdiction that you

believe meets the criteria in Article 25, UCMJ and Ch apter 7 of AR 27-10 for courts-martial panel members.”

At trial, the defense moved for the appo intment of a new pa nel, claiming the

2 Army Reg. 27-10, Legal Se rvices: Military Justice [hereinafter AR 27-10] (24 June 1996) (version in effect at time of trial).

3 The SJA’s advice correctly omitted two ex ceptions to the exemption provisions in AR 27-10 as they were inap plicable to the instant case. Those exceptions permit Army Medical Specialist Corps and Nurs e Corps personnel to serve as court members when members of their respective corps are “involved in the proceedings.” While the exceptions do not apply to the ex empted members in appellant’s case, we

consider them for their value in demonstr ating the Secretary of the Army’s courtmartial duty exempt ions were appropri ately tailored and not overbroad. The exceptions have been retained through multip le revisions of AR 27-10, including the current version, date d 16 November 2005.BARTLETT – ARMY 20021244

5 Secretary of the Army exceeded his auth ority when he exempted officers from special branches named in AR 27 -10 from court-martial service. 4 The defense asserted the Secretary of the Army’s “good or bad . . . intent in [exempting officers from the particular special branches] was . . . just not importa nt” and characterized AR 27-10 as an “illegal regu lation.” The par ties stipulated the exemptions in AR

27-10 excluded eleven o fficers from consideration for se lection in the instant case: one doctor (colonel, Medica l Corps), eight dentists (seven colonels and one lieutenant colonel, Dental Corps), and two chaplains (both colonels, Chaplain Corps). The defense assert ed Article 25, UCMJ, lacks any language authorizing limitation or amendment by the Servic e Secretary concerned; therefore, the Secretary of the Army improp erly attempted to amend a statute via regulation when he exempted the designate d branch officers from th e convening authority’s

consideration.

Discussion

Panel Composition

Claims of error in the process of se lecting panel members require de novo

review. United States v. Dowty , 60 M.J. 163, 171 (C.A.A.F . 2004). The heart of appellant’s attack upon the se lection of panel members in this case is the SJA’s advice to the convening authority which inform ed him that officers in certain special branches were exempt fr om service on the panel.

In denying the defense mo tion for a new panel, th e military judge made

extensive findi ngs and held the “Secretar y of the Army has the au thority to limit, for a benign reason, the pool of officers from which the GCMC A is permitted to select court-martial members.” The military judge noted that 10 U.S.C. § 3013 created the Secretary of the Army’s posi tion and statutorily empower ed him to “assign, detail, and prescribe the duties of members of th e Army” and to “prescribe regulations to

4 The AR 27-10 provisions exempting the designated sp ecial branch officers from additional duties, su ch as court-martial service, are a consolidation of the exemptions contained in Army Reg. 20-1, Inspections , Assistance, and Investigations: Inspector Ge neral Activities and Procedur es [hereinafter AR 20-1], para. 2-6a(2) (1 Fe b. 2007); Army Reg. 40-1, Medical Servic es: Composition, Mission, and Functi ons of the Army Medical Department [hereinafter AR 40-1], para. 2-3b(1)(a) (1 July 1983); and Army Reg.165-1, Religious Activi ty: Chaplain

Activities in the Unit ed States Army [hereinafter AR 165-1], para. 4- 3e(2) (25 Mar. 2004). All of the cited regu lations are issued by authorit y of the Secretary of the Army.BARTLETT – ARMY 20021244

6 carry out his functions, pow ers, and duties . . . wh ich functions include, inter alia

, organizing training, servic ing, administering, and main taining the Army.” The military judge also observed:

In excluding these officers from cour t-martial duty, and from nearly all other routine[ ,] non-[military occupational specialty]-related duties, the [Secretary of the Army] has determined that the Army’s cr itical need for officers of their unique education, training, and experience to perform duties with in their unique expertise is more important to the mission than is their service on courtsmartial.

Appellant’s contention that the c onvening authority’s adherence to the exemptions in Chapter 7 of AR 27-10 impermissibly narr owed the pool of potential panel members under Article 25, UCMJ, misconstru es the nature of the exemptions. The Secretary of the Army exempted members of cert ain branches fr om service on a court-martial panel based on the nature of their duties. As the military judge correctly recognized at trial, the Secretary of the Army’s authority to delineate those exemptions was based on powers conferred upon him by Congress in 10 U.S.C. §

3013. 5 The Fort Meade convenin g authority’s adherence to a statutorily authorized

executive decision of the Secretary of the Army was not a denial of any of appellant’s rights. Appellan t, therefore, was not enti tled to a new panel and the military judge proper ly denied his motion.

Appellant’s contention raises the question of whether Article 25, UCMJ, limits 10 U.S.C. § 3 013. At first glance, the Secretary of the Ar my’s authority under 10 U.S.C. § 3013 may appear to conflict with Article 25( a), UCMJ, which provides:

“ Any commissioned officer on active duty is eligible to serve on all courts-martial

for the trial of any person . . . .” (Empha sis added.) However, this court recognized more than fifty-five years ago that the Secretary of th e Army has the authority to exempt persons assigned to a particular branch from court- martial service. See

United States v. Neville , 7 C.M.R. 180 (A.B.R. 1952), rev. denied, 7 C.M.R. 84 (C.M.A. 1952). “ Except for the non-avai lability of chaplains for such duty (AR 660-10, para. 2), this rule [of universal officer eligibility for court-martial service under Article 25(a)] is unrestricted in the Army.” Id . at 192 (emphasis

5 While the Secretary of the Army is a convening author ity under Arti cle 22(a)(4), UCMJ, the evidence supports the conclusion that the Secretary established the excusals in question pursua nt to his authority under 10 U.S.C. § 3013 and not as a convening authority. Moreover, no evid ence supports the contrary conclusion.BARTLETT – ARMY 20021244

7 added). 6

10 U.S.C. § 3013(g)(1 ) does not contradict the Article 25 eligibility provision when it authorizes the Secretary of the Army to “assign, deta il, and prescribe the

duties of members of the Arm y.” This provision grants the Secretary broad power to facilitate the discharge of hi s duties. “Each of the [Service] Secr etaries has been granted, either specifically or by inference, the power to prescribe regulations to carry out the function s, powers, and duti es of the office.” United States v. Hoesing

, 5 M.J. 355, 35 8 (C.M.A. 1978) (quoting United States v. Dillard

, 4 M.J. 577, 581 (A.C.M.R. 1977)); Lovallo v. Froehlke , 346 F. Supp. 1037, 1 043 (W.D.N.Y. 1972), aff’d

, 468 F.2d 340 ( 2d Cir. 1972), cert. denied , 411 U.S. 918 (1973 ). The Secretary of the Army determined that certain Ar my members are unavailable to serve on court-martial panels because of the nature of thei r duties. This de cision affects the feasibility of their service under Army policy, not their eligibility for service under the law; accordingly, it does no t run contrary to Article 25. Furthermore, the Secretary of the Army’s de termination regarding the f easibility of o fficers from certain special branches serving on courts-m artial is separate from the convening authority’s selection of panel members under Article 25, UCMJ.

In assessing the appropria teness of the Secretary of the Army’s construction of 10 U.S.C. § 3013, we apply the Supreme Court’s two-pronged te st for determining whether an executive agency’s construction of a statute it implements is permissible: (1) “whether Congress has directly spoken to the precise question at issue;” and, if not, (2) “whether the agency’s action re sts on a permissible co nstruction of the

statute.” Chevron v. Natural Resources Defense Council , 467 U.S. 837, 842-43 (1984). As Congress did not specifically address the te nsion between the Secretary of the Army’s powers to assign dutie s to service members and a convening authority’s selection of pane l members, it becomes necess ary for us to decide the

second Chevron question. In doing so, we bear in mind “‘[t]he power of an administrative agency to administer a congressionally created . . . prog ram[, such as the Army’s administration of the military jus tice system within its jurisdiction,] necessarily requires the formul ation of policy and the making of rules to fill any gap left, implicitly or expl icitly, by C ongress.’” Id . at 843 (quoting Morton v. Ruiz , 415 U.S. 199, 231 (1974)) (second alteration in original). Since neither Article 25, UCMJ, nor 10 U.S.C. § 3013 directly address the power of the Se cretary to exempt

6 In Neville , the Army Board of Review determined that an officer’s service in the Judge Advocate General’s Corps was not a valid basis for a challenge for cause simply because the officer was a judge advocate. Id . at 191-92. At the time, the Secretary of the Army had on ly determined that chaplains were not available for court-martial duty. Id . at 192.BARTLETT – ARMY 20021244

8 members from service on cour t-martial panels ba sed on the nature oftheir duties, the present question involves one such gap. In such cases, the Supreme Court instructs that we are “not [to] substi tute [our] own construction of a statutory provision for a reasonable interpretation made by the administra tor of an agency.” Chevron , 467 U.S. at 844. The question then becomes whether the Secretary of the Army’s decision to exempt a grou ping of Army personnel fr om service on court-martial panels due to the nature of their duties is a reasonable inte rpretation of the statute.

We conclude that it is.

Several legitimate rationale support the courts-martial service exemptions in AR 27-10. First, as di scussed above, they are na rrowly-tailored exemptions designed to maximize the us e of the Army’s limited resources. Second, the exemptions do not operate as a blanket excl usion of a discrete class from service on courts-martial; officers qualified for servi ce in one of the exempted branches who are assigned to a non-exempt branch remain eligible for panel service. Third, the exemptions do not inject an impermissible variable into the panel member selection process; the exemptio ns are concrete and narrowly tailored to effect the announced ends of the regulation. We shall address each of these points separately.

A. Exemptions Rather than Exclusions

“[Army Medical Departme nt] officers’ duty time will be devoted, to the maximum extent possib le, to actions and pr ocedures for which th ey are specifically trained.” AR 40-1, para 1-10a. Regardin g the five relevant co rps within the Army Medical Department,

[e]xcept when regulations prov ide otherwise, such officers

will not be— (1) Detailed as members of— (a) Courts–martial. (b) Nonprofessional boards or committees. (2) Assigned to other duties in which medical training is

not essential. To preclude requiring the person al appearance of [Medical Corps (MC)] officers as wi tnesses to present testimony, every effort consistent with due process of law will be made to use reports, depositions, or a ffidavits submitted by MC officers in connection with courts-martial and

boards or committees.

Id . at para. 2-3b(1)–(2); see id . at para. 2-7 (Dental Corps officers), 2-12a (Veterinary Corps officers), 2-19b (Nurse Corps officers), 2-22b (Medical Specialist Corps officers). The Secretary of the Army’s intent is evident from this regulation:BARTLETT – ARMY 20021244

9 officers who perform the vita l medical services on which the Army relies will devote the fullest measure of their time possible to their primary du ties and should be exempt from additional duty requirements that would inhibit pe rformance of those duties. Army Reg. 27-10 is consistent with that intent an d is a re asonable interpretation of Article 25 , UCMJ, and 10 U.S. C. § 3013. The same reasonable interpretation of intent and purpose apply to th e rationale for the exemptions for inspectors general and chaplains. 7

Many states have historically granted exemptions from jury service based on

the nature of a venireman’s profession. See Holland v. Illinois , 493 U.S. 474, 506 n.3 (1990) (Stevens, J., di ssenting) (noting that, “[a]t the time of petiti oner’s trial, Illinois provided exemptio ns [from jury duty], common to many States, for public officials, practicing physicians, and practicing attorneys, among others”); see also Fay v. New York , 332 U.S. 261, 267 (1 947) (observing the State of New York exempted “clergymen, physic ians, dentists, pharmacists, embalmers, optometrists, attorneys, members of the Army, Navy or Ma rine Corps, or of the National Guard or Naval Militia, firemen, policem en, ship’s officers, pilots, editors, editorial writers, subeditors, reporters[,] and copy reader s” from jury duty). The fact that the Secretary of the Army deemed it prudent to adopt an approa ch common to state practice further illustrates the reasonableness of the provisions in AR 27-10.

B. Neither Blanket Exclusions Nor Impermissible Variables

The provisions in AR 27 -10 do not create any blanket exclusions; individuals who still possess the requisite technical ex pertise for any of th ese branches are not subject to the exemption if they are not members of the branches. While appellant claims the exemption operate s to deny him “the critical thinking of doctors and nurses, the compassion of chap lains, and the neutra lity of inspectors general,” that is simply not the case. 8 The exemptions do not interj ect any impermissible variables

7 See AR 20-1, para. 2-6a(1)–(3) (exemption fo r inspectors general to preserve them for their specialized role); AR 165-1, para. 4-3e(1)–(3) (same for chaplains).

8 We find no merit in the spec ulative theory that membersh ip in one of the exempted

branches would result in less punishment fo r appellant. The record of trial, including its phot ographic and autopsy exhi bits, provides exacting detail of the 6,’ 185-pound appellant’s extremely violent murder of the 5’3,” 130-pound mother of three children. Appellant demonstrated a notable lack of remorse while cleaning

blood from the crime scene by taking breaks to vi ew adult pornography on the Internet; he then engaged in elaborate deceptive efforts to conceal his crime from family members and law enforcement offi cials. Moreover, his offenses had significant victim impact. It is equally likely the professional training and

(continued . . .)BARTLETT – ARMY 20021244

10 into the panel member selection process as was the case in Dowty , where soldiers

who volunteered for court-mar tial service at the assistant staff judge advocate’s open

invitation served on the accused’ s panel. 60 M.J. at 165-66. 9 In appellant’s case, the Secretary of the Army ex empted officers from court- martial panel service based on his determination that their assigned offici al duties take priority over other tasks. The Secretary of the Army ’s practice is consis tent with state practi ce in this area, is a reasonable applica tion of 10 U.S.C. §3013 and Ar ticle 25, UCMJ, and does not entitle appellant to any relief.

The method of panel selection in this ca se was not legally de fective. In fact, it exceeded requirements articulated by nu merous decisions inte rpreting Article 25, UCMJ, selection. “Where systematic exclus ion is consistent wi th Article 25, UCMJ, it may be permissible.” United States v. Loving , 41 MJ 213, 28 7 (C.A.A.F. 1994), aff’d on other grounds

, 417 U.S. 748 (1996); s ee also United States v. Upshaw , 49 M.J. 111, 113 (C.A.A.F. 1998 ) (finding exclusion of al l technical sergeants (E6) from nominee list was “jus t simply a mistake,” not improper motive, and not prejudicial error); United States v. Lewis , 46 M.J. 338, 341-42 (C.A.A.F. 1997) (finding evidence insufficien t to show “court-stacking” where inordina te amount of

women were detailed to and actually sat on accused’s panel); United States v. Brocks , 55 M.J. 614, 616-19 (A .F. Ct. Crim. App. 2001) (finding exclusion of

medical officers from court member nomin ee list did not constitute unlawful command influence or an attempt at “court-packing”), aff’d , 58 M.J. 11 (C.A.A.F. 2002) (summary disposition). The trial judge found “the panel detailed was wellbalanced across gender, r acial, staff, command[,] and branch lines. Although convened by the Fort Meade GCMCA, the court panel also in cluded members from

Carlisle Barracks.” He furt her found that “[t]hi s is not a ca se in which individuals similarly situated to the ac cused were either arbitrarily or purposefully excluded from the panel.”

We agree with the trial judg e’s finding that “[t]here is absolutely no evidence or suggestion that th is exemption has be en done for a ny reason, ideo logical or otherwise, except the critical role these offi cers fulfill by virtue of their specialized education, training, and expe rience.” Appellant does not allege the convening authority attempted the prohib ited practice of “court packing” to achieve a particular

(. . . continued) experience possessed by officers from the exempted branches would lead them to view the evidence as meriting a senten ce more severe th an that adjudged.

9 Our superior court c oncluded that introduci ng the variable of in dividuals seeking to serve on panels was erro r, but that it did not prejudice the accused. Id . at 176.BARTLETT – ARMY 20021244

11 result in this case, nor does appellant allege anyone exerci sed unlawful command influence over the proceedings. Further, we concur with the trial judge that the convening authority acted in accordance wi th the lawful limita tions prescribed by the Secretary of the Army who was properly ex ercising his stat utory duties to manage the military de partment. Finding only prope r motives here, we determine

the defense claim to be without merit. “Appellant has presented no evidence that

court members were . . . exclud ed for reasons that violate the Constitution or Article

25.” Loving , 241 M.J. at 287. We find no error in the milit ary judge’s denial of appellant’s motion.

Clemency

Appellant also complains the convening authority impr operly consid ered three post-trial letters from the vict im’s relatives before taking action in the case. Two of

the three letters were from witnesses who te stified at trial; all the letters urged the convening authority to deny cl emency. The SJA listed the three letters as enclosures to her post-trial recommendation (SJAR) and pr operly served them upon trial

defense counsel for comment in accord ance with Rule fo r Courts-Martial [hereinafter R.C.M.] 1106(f)(1). In her written response, tr ial defense counsel objected to the conven ing authority considering the letters because they “impeached the findings and/or sentence of the court” by alleging that appe llant was guilty of premeditated murder or expr essed displeasure with what the letters characterized as

a lenient sentence. In he r SJAR addendum, the SJA no ted the defense objection to the letters, disagreed with it, and provided the letters to the convening authority for his consideration along wi th the SJAR and matters the defense submitted.

The SJA’s actions regarding the letters were proper. Rule for Courts-Martial 1106(d)(5) permits th e SJA to include “any additi onal matters [she] deem[s] appropriate . . . [i]ncluding ma tters outside the record.” The drafters’ discussion to

that rule refers to R.C.M. 1107(b)(3)(B)( iii), which allows a co nvening authority to consider matters outside the record, provid ed appellant is give n an opportunity to

review the materials and submit matters in response. In this case, the SJA properly served the letters on appell ant, received comm ent on the same, a nd included those

comments when she forwarded the letters to the convening auth ority. The cited rules were appropriately followed; they pr ovide due process in the form of notice and an opportunity to be heard, but do not empower the defense to prevent a convening authority from considering post-trial co rrespondence altogether.

Moreover, as earl y as 1994, the Department of Defense provided crime victims the right to submit precisely the type of post-trial communications under

review in the instant case. Victims “have the right to submit a statement to the convening authority on how [t hey] feel about th e inmate receiving clemency.” Dep’t of Def., Form 2703, Post-Trial Informat ion for Victims and Witnesses of CrimeBARTLETT – ARMY 20021244

12 (Dec. 1994) (DD Form 2703); see Dep’t of Def. Instr. 1030.2, Victim and Witness Assistance Procedures [her einafter DODI 1030.2], para . F.4 (23 Dec. 1994). Furthermore, “convening auth orities . . . may consider victim statements on the impact of crime.” Dep’t of Def. Dir. 1030.1, Victim and Witness Assistance [hereinafter DOD Dir. 1030.1], para. D.5 (23 Nov. 1994) . The articulation of these rights predates the convening authority’s re view of the victim submissions in this case by more than eight years. 10

Recognizing that the vict im clemency matters in th is case were authorized

communications to the convening authority, 11 we encourage SJAs to follow the example in the instant case and act as conduits for victim submissions to the convening authority. Serv ing victim clemency corres pondence on the accused for comment before convening authority action protects an accused’s due process rights under the Rules for Courts-Martial and preser ves the actual and pe rceived fairness of the military justice system. We further urge SJAs to use discreti on when advising in

this area.

We have considered the remaining assignm ents of error and the matters appellant personally raised pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.

The findings of guilty a nd sentence are affirmed.

Senior Judge MAHER and Judge SULLIVAN concur.

10 Victim clemency correspondence rights were reaffirmed in 2004 when they were reissued without change. See DD Form 2703 (M ay 2004); DODI 1 030.2, para. 6.4 (4 June 2004); DOD Dir. 1030. 1, para. 4.5 (13 Apr. 2004); see also AR 27-10, para. 18-14b(1) (16 Nov. 2005).

11 Victim impact statements may also be forwarded to the Army Clemency and

Parole Board. See AR 27-10, Appendix D, para. D-1l(13). MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: