UNITED STATES ARMY COURT 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 Garrison, Fort George G. Meade 

Ronald W. White, Military Judge 

Lieutenant Colonel Lisa Anderson-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 Steven T. Salata, JA; Lieutenant Colonel Theresa A. 

Gallagher, JA; Major William J. Nelson, JA; Captain Trevor B.A. Nelson, JA (on 

brief). 

29 March 2007 

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

OPINION OF THE COURT 

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

HOLDEN, Judge: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of unpremeditated murder in violation of Article 118, Uniform 

Code of Military Justice, 10 U.S.C. § 918 [hereinafter UCMJ]. In accordance with a 

pretrial agreement, the military judge dismissed the greater offense of premeditated 

murder and the charges of aggravated assault, obstruction of justice, and false 

swearing in violation of Articles 118, 128, and 134, UCMJ. A court composed of 

officer members sentenced appellant to a dismissal 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 Article 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 Army1

] were systematically excluded from consideration for detail to appellant’s 

court-martial.” He avers the improper exclusion was based on incorrect advice the 

staff judge advocate (SJA) provided the convening authority when selecting court 

members. Appellant urges us to set aside the sentence and order a sentence 

rehearing. Appellant further asserts the convening authority improperly considered 

matters from outside the record when acting on the findings and sentence. Both 

assignments of error warrant discussion, but neither claim is meritorious. 

FACTS 

This case involves a murder of some notoriety at appellant’s duty station, 

Carlisle Barracks, Pennsylvania. The homicide and ensuing efforts to conceal it 

occurred in the late evening on 19 March 2002 and continued into the early morning 

hours the following day. Appellant and his wife had argued sporadically for several 

days over appellant’s renewed viewing of adult Internet pornography after his wife’s 

prior warning that she would leave him if he did so. At approximately 2300 on the 

night of the murder, appellant was upstairs in his 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 had viewed during her 

absence, and threatened to show it to the children if he did not comply. Appellant 

grabbed an iron pestle from a mortar and pestle set and went downstairs. He then 

killed his wife by striking her twenty times in the head and face with the pestle, 

strangling her with a computer power cord, and striking her five more times with the 

pestle. In addition to her fatal injuries, the victim suffered a broken jaw, broken 

nose, and two skull fractures; the strangulation fractured two of the bones in her 

neck. Appellant attempted 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 penetrated her vagina with a knife sharpener, causing a 

one-inch-deep cut near her cervix. Appellant then began to clean the crime scene, 

using rags to scrub pools of blood and blood spatter 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 identify soldiers and units trained in the 

principal functions associated with that branch, e.g., infantry, armor, etc. The 

branches are classified into two broad categories: basic and special. Army Reg. 600-

3, Personnel—General: The Army Personnel Proponent 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 receptacles at various neighbors’ homes. He wrapped the 

semi-nude corpse in a blanket and waded into a nearby stream with the body. 

Appellant put the body in the 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 was running and would 

return shortly, and got them back into bed. 

At approximately 0330, appellant reported his wife missing to his children, 

relatives, and law enforcement officers. Members of the victim’s immediate family 

departed by plane and car for Carlisle Barracks to help appellant find his wife; he 

had told them he “expected her to walk through the door 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 returned. While the victim’s family members were 

enroute, the installation command mobilized every available resource to search for 

the victim, including all law enforcement assets. Military police went door-to-door 

looking for the victim, posted missing-person signs, and patrolled the installation. 

Appellant’s neighbors participated in the search. While the search was ongoing, 

appellant continued to clean his quarters in an effort to conceal or destroy evidence. 

During the entire time of the search, appellant 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 bridge. Upon discovery of the body, the 

installation command closed the post, as it appeared that a member of the Army 

community had been sexually assaulted and murdered by an unknown killer who was 

still at large. Appellant received an outpouring of support including meals, visits, 

and encouragement from sympathetic community members. 

After the body was discovered, Criminal Investigation Command (CID) agents 

searched appellant’s house for clues relating to the crime. During the search, 

appellant rested on the couch while the victim’s younger brother and appellant’s 

children watched television. The victim’s brother testified that at one point, 

appellant “pulled up a chair next to [him], looked at [him], and [appellant] looked 

like [appellant] needed to tell [him] something.” When the victim’s brother asked if 

that were the case, appellant confirmed he wanted to talk. Appellant then said he 

killed the victim because she discovered he viewed adult Internet pornography two 

weeks ago while she was out of town with the children and, “for the past 2 weeks 

she’d been giving him, in his 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 girls . . . [and said] she had a moral obligation to call his future 

employer and let him know that he shouldn’t teach . . . children.” The victim’s 
BARTLETT – ARMY 20021244 

4

brother asked appellant if he was aware that CID agents were in the house 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 appellant’s admission to the victim’s brother and discovery of trace 

evidence indicating the murder occurred inside the house, CID agents apprehended 

appellant. 

Carlisle Barracks does not have an assigned commander who is designated as 

a general court-martial convening authority (GCMCA). Accordingly, the 

government properly attached appellant to Fort Meade, Maryland, an installation 

with a GCMCA, for trial. In an 18 July 2002 memorandum, 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 referred to an enclosed 

alphabetical list of all officers in the Fort Meade general court-martial jurisdiction 

and told the convening authority he could select anyone senior to appellant in his 

jurisdiction whom he believed to be “best qualified for the duty by reason of age, 

education, training, experience, length of service and judicial temperament.” UCMJ 

art. 25. The SJA further advised the convening authority: “Pursuant 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 those detailed to Inspector General duties as 

courts-martial panel members.”3 Finally, the SJA noted in bold print in her 

memorandum: “You may detail anyone within your GCM jurisdiction that you 

believe meets the criteria in Article 25, UCMJ and Chapter 7 of AR 27-10 for 

courts-martial panel members.” 

At trial, the defense moved for the appointment of a new panel, claiming the 

 

2

 Army Reg. 27-10, Legal Services: Military Justice [hereinafter AR 27-10] 

(24 June 1996) (version in effect at time of trial). 

3

 The SJA’s advice correctly omitted two exceptions to the exemption provisions in 

AR 27-10 as they were inapplicable to the instant case. Those exceptions permit 

Army Medical Specialist Corps and Nurse 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 exempted members in appellant’s case, we 

consider them for their value in demonstrating the Secretary of the Army’s courtmartial duty exemptions were appropriately tailored and not overbroad. The 

exceptions have been retained through multiple revisions of AR 27-10, including the 

current version, dated 16 November 2005. 
BARTLETT – ARMY 20021244 

5

Secretary of the Army exceeded his authority 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 important” and characterized 

AR 27-10 as an “illegal regulation.” The parties stipulated the exemptions in AR 

27-10 excluded eleven officers from consideration for selection in the instant case: 

one doctor (colonel, Medical Corps), eight dentists (seven colonels and one 

lieutenant colonel, Dental Corps), and two chaplains (both colonels, Chaplain 

Corps). The defense asserted Article 25, UCMJ, lacks any language authorizing 

limitation or amendment by the Service Secretary concerned; therefore, the 

Secretary of the Army improperly attempted to amend a statute via regulation when 

he exempted the designated branch officers from the convening authority’s 

consideration. 

Discussion 

Panel Composition 

Claims of error in the process of selecting 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 selection of panel members in this case is the SJA’s 

advice to the convening authority which informed him that officers in certain special 

branches were exempt from service on the panel. 

In denying the defense motion for a new panel, the military judge made 

extensive findings and held the “Secretary of the Army has the authority to limit, for 

a benign reason, the pool of officers from which the GCMCA is permitted to select 

court-martial members.” The military judge noted that 10 U.S.C. § 3013 created the 

Secretary of the Army’s position and statutorily empowered him to “assign, detail, 

and prescribe the duties of members of the Army” and to “prescribe regulations to 

 

4

 The AR 27-10 provisions exempting the designated special branch officers from 

additional duties, such as court-martial service, are a consolidation of the 

exemptions contained in Army Reg. 20-1, Inspections, Assistance, and 

Investigations: Inspector General Activities and Procedures [hereinafter AR 20-1], 

para. 2-6a(2) (1 Feb. 2007); Army Reg. 40-1, Medical Services: Composition, 

Mission, and Functions of the Army Medical Department [hereinafter AR 40-1], 

para. 2-3b(1)(a) (1 July 1983); and Army Reg.165-1, Religious Activity: Chaplain 

Activities in the United States Army [hereinafter AR 165-1], para. 4-3e(2) (25 Mar. 

2004). All of the cited regulations are issued by authority of the Secretary of the 

Army. 
BARTLETT – ARMY 20021244 

6

carry out his functions, powers, and duties . . . which functions include, inter alia, 

organizing training, servicing, administering, and maintaining the Army.” The 

military judge also observed: 

In excluding these officers from court-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 critical need for officers of 

their unique education, training, and experience to 

perform duties within their unique expertise is more 

important to the mission than is their service on courtsmartial. 

 Appellant’s contention that the convening authority’s adherence to the 

exemptions in Chapter 7 of AR 27-10 impermissibly narrowed the pool of potential 

panel members under Article 25, UCMJ, misconstrues the nature of the exemptions. 

The Secretary of the Army exempted members of certain branches from 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 convening 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. Appellant, therefore, was not entitled to a new panel and the 

military judge properly denied his motion. 

 Appellant’s contention raises the question of whether Article 25, UCMJ, 

limits 10 U.S.C. § 3013. At first glance, the Secretary of the Army’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 . . . .” (Emphasis added.) However, this court recognized 

more than fifty-five years ago that the Secretary of the 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-availability 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 authority under Article 22(a)(4), 

UCMJ, the evidence supports the conclusion that the Secretary established the 

excusals in question pursuant to his authority under 10 U.S.C. § 3013 and not as a 

convening authority. Moreover, no evidence 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, detail, and prescribe the 

duties of members of the Army.” This provision grants the Secretary broad power to 

facilitate the discharge of his duties. “Each of the [Service] Secretaries has been 

granted, either specifically or by inference, the power to prescribe regulations to 

carry out the functions, powers, and duties of the office.” United States v. Hoesing,

5 M.J. 355, 358 (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, 1043 (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 Army members are unavailable to serve on 

court-martial panels because of the nature of their duties. This decision affects the 

feasibility of their service under Army policy, not their eligibility for service under 

the law; accordingly, it does not run contrary to Article 25. Furthermore, the 

Secretary of the Army’s determination regarding the feasibility of officers from 

certain special branches serving on courts-martial is separate from the convening 

authority’s selection of panel members under Article 25, UCMJ. 

 In assessing the appropriateness of the Secretary of the Army’s construction 

of 10 U.S.C. § 3013, we apply the Supreme Court’s two-pronged test 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 rests on a permissible construction of the 

statute.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 

(1984). As Congress did not specifically address the tension between the Secretary 

of the Army’s powers to assign duties to service members and a convening 

authority’s selection of panel members, it becomes necessary 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 . . . program[, such as 

the Army’s administration of the military justice system within its jurisdiction,] 

necessarily requires the formulation of policy and the making of rules to fill any gap 

left, implicitly or explicitly, by Congress.’” 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 Secretary 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 only determined that chaplains were not available for 

court-martial duty. Id. at 192. 
BARTLETT – ARMY 20021244 

8

members from service on court-martial panels based on the nature of their duties, the 

present question involves one such gap. In such cases, the Supreme Court instructs 

that we are “not [to] substitute [our] own construction of a statutory provision for a 

reasonable interpretation made by the administrator of an agency.” Chevron, 467 

U.S. at 844. The question then becomes whether the Secretary of the Army’s 

decision to exempt a grouping of Army personnel from service on court-martial 

panels due to the nature of their duties is a reasonable interpretation of the statute. 

We conclude that it is. 

 Several legitimate rationale support the courts-martial service exemptions in 

AR 27-10. First, as discussed above, they are narrowly-tailored exemptions 

designed to maximize the use of the Army’s limited resources. Second, the 

exemptions do not operate as a blanket exclusion of a discrete class from service on 

courts-martial; officers qualified for service 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 exemptions 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 Department] officers’ duty time will be devoted, to the 

maximum extent possible, to actions and procedures for which they are specifically 

trained.” AR 40-1, para 1-10a. Regarding the five relevant corps within the Army 

Medical Department, 

[e]xcept when regulations provide 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 personal appearance of [Medical 

Corps (MC)] officers as witnesses to present testimony, 

every effort consistent with due process of law will be 

made to use reports, depositions, or affidavits 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 vital medical services on which the Army relies will devote 

the fullest measure of their time possible to their primary duties and should be 

exempt from additional duty requirements that would inhibit performance of those 

duties. Army Reg. 27-10 is consistent with that intent and is a reasonable 

interpretation of Article 25, UCMJ, and 10 U.S.C. § 3013. The same reasonable 

interpretation of intent and purpose apply to the 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., dissenting) (noting that, “[a]t the time of petitioner’s trial, 

Illinois provided exemptions [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 (1947) (observing the State of New York 

exempted “clergymen, physicians, dentists, pharmacists, embalmers, optometrists, 

attorneys, members of the Army, Navy or Marine Corps, or of the National Guard or 

Naval Militia, firemen, policemen, ship’s officers, pilots, editors, editorial writers, 

subeditors, reporters[,] and copy readers” from jury duty). The fact that the 

Secretary of the Army deemed it prudent to adopt an approach 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 expertise for any of these branches are not 

subject to the exemption if they are not members of the branches. While appellant 

claims the exemption operates to deny him “the critical thinking of doctors and 

nurses, the compassion of chaplains, and the neutrality of inspectors general,” that is 

simply not the case.8

 The exemptions do not interject any impermissible variables 

 

7 See AR 20-1, para. 2-6a(1)–(3) (exemption for 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 speculative theory that membership in one of the exempted 

branches would result in less punishment for appellant. The record of trial, 

including its photographic and autopsy exhibits, 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 view adult pornography on the 

Internet; he then engaged in elaborate deceptive efforts to conceal his crime from 

family members and law enforcement officials. 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-martial 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 exempted officers from court-martial panel service based 

on his determination that their assigned official duties take priority over other tasks. 

The Secretary of the Army’s practice is consistent with state practice in this area, is 

a reasonable application of 10 U.S.C. §3013 and Article 25, UCMJ, and does not 

entitle appellant to any relief. 

 The method of panel selection in this case was not legally defective. In fact, 

it exceeded requirements articulated by numerous decisions interpreting Article 25, 

UCMJ, selection. “Where systematic exclusion is consistent with Article 25, UCMJ, 

it may be permissible.” United States v. Loving, 41 MJ 213, 287 (C.A.A.F. 1994), 

aff’d on other grounds, 417 U.S. 748 (1996); see also United States v. Upshaw, 49 

M.J. 111, 113 (C.A.A.F. 1998) (finding exclusion of all technical sergeants (E6) 

from nominee list was “just 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 insufficient to show “court-stacking” where inordinate 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 nominee 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, racial, staff, command[,] and branch lines. Although 

convened by the Fort Meade GCMCA, the court panel also included members from 

Carlisle Barracks.” He further found that “[t]his is not a case in which individuals 

similarly situated to the accused were either arbitrarily or purposefully excluded 

from the panel.” 

We agree with the trial judge’s finding that “[t]here is absolutely no evidence 

or suggestion that this exemption has been done for any reason, ideological or 

otherwise, except the critical role these officers fulfill by virtue of their specialized 

education, training, and experience.” Appellant does not allege the convening 

authority attempted the prohibited 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 sentence more severe than that adjudged. 

9

 Our superior court concluded that introducing the variable of individuals seeking to 

serve on panels was error, but that it did not prejudice the accused. Id. at 176. 
BARTLETT – ARMY 20021244 

11

result in this case, nor does appellant allege anyone exercised unlawful command 

influence over the proceedings. Further, we concur with the trial judge that the 

convening authority acted in accordance with the lawful limitations prescribed by 

the Secretary of the Army who was properly exercising his statutory duties to 

manage the military department. Finding only proper motives here, we determine 

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

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

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

appellant’s motion. 

Clemency 

Appellant also complains the convening authority improperly considered three 

post-trial letters from the victim’s relatives before taking action in the case. Two of 

the three letters were from witnesses who testified at trial; all the letters urged the 

convening authority to deny clemency. The SJA listed the three letters as enclosures 

to her post-trial recommendation (SJAR) and properly served them upon trial 

defense counsel for comment in accordance with Rule for Courts-Martial 

[hereinafter R.C.M.] 1106(f)(1). In her written response, trial defense counsel 

objected to the convening authority considering the letters because they “impeached 

the findings and/or sentence of the court” by alleging that appellant was guilty of 

premeditated murder or expressed displeasure with what the letters characterized as 

a lenient sentence. In her SJAR addendum, the SJA noted the defense objection to 

the letters, disagreed with it, and provided the letters to the convening authority for 

his consideration along with the SJAR and matters the defense submitted. 

 The SJA’s actions regarding the letters were proper. Rule for Courts-Martial 

1106(d)(5) permits the SJA to include “any additional matters [she] deem[s] 

appropriate . . . [i]ncluding matters outside the record.” The drafters’ discussion to 

that rule refers to R.C.M. 1107(b)(3)(B)(iii), which allows a convening authority to 

consider matters outside the record, provided appellant is given an opportunity to 

review the materials and submit matters in response. In this case, the SJA properly 

served the letters on appellant, received comment on the same, and included those 

comments when she forwarded the letters to the convening authority. The cited 

rules were appropriately followed; they provide 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 correspondence altogether. 

 Moreover, as early 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 [they] feel about the inmate receiving clemency.” Dep’t 

of Def., Form 2703, Post-Trial Information for Victims and Witnesses of Crime 
BARTLETT – ARMY 20021244 

12

(Dec. 1994) (DD Form 2703); see Dep’t of Def. Instr. 1030.2, Victim and Witness 

Assistance Procedures [hereinafter DODI 1030.2], para. F.4 (23 Dec. 1994). 

Furthermore, “convening authorities . . . 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 review of the victim submissions in this 

case by more than eight years.10

 Recognizing that the victim clemency matters in this 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. Serving victim clemency correspondence on the accused for 

comment before convening authority action protects an accused’s due process rights 

under the Rules for Courts-Martial and preserves the actual and perceived fairness of 

the military justice system. We further urge SJAs to use discretion when advising in 

this area. 

We have considered the remaining assignments 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 and 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 (May 2004); DODI 1030.2, 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: