UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, GALLAGHER, and HAIGHT
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                        Specialist ALVA D. SUMMERLOTT
                          United States Army, Appellant

                                   ARMY 20120352

      Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell
                        Timothy Grammel, Military Judge
           Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Susrut A. Carpenter, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).

                                      26 June 2013
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of forcible sodomy, in violation of Article
125, Uniform Code of Military Justice, 10 U.S.C. § 925 (2012) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
four years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
Pursuant to a pretrial agreement, the convening authority approved only so much of
the sentence as provided for a bad-conduct discharge, confinement for eighteen
months, forfeiture of all pay and allowances, and reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted this case on its merits but personally raised issues pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find one of these issues merits
discussion but no relief. We also find an additional issue which merits discussion
but no relief.
SUMMERLOTT—ARMY ARMY 20120352

        In his Grostefon matters, appellant alleges error when the staff judge advocate
(SJA) failed to serve him with “new matter” contained in the addendum to his post-
trial recommendation. See R.C.M. 1106(f)(7).

       Following appellant’s court-martial, his defense counsel submitted matters on
appellant’s behalf pursuant to Rules for Court-Martial [hereinafter R.C.M.]
1105/1106 to the convening authority (CA). In his memorandum, appellant’s
defense counsel alleged: (1) the assembly of the court-martial was in error because
the SJA exceeded the authority delegated to him by the convening authority when he
excused alternate members of the panel; (2) the defense was never provided
documentation verifying excused members’ TDY status; and (3) the military judge
violated the liberal grant mandate when he denied a defense challenge for cause.

      In the addendum to his post-trial recommendation, the SJA responded to
appellant’s allegations of error regarding panel members’ excusals and absences. He
provided:

             In paragraph 1d of the defense submission, the defense
             counsel claims that the assembly of the panel was in error
             in that they believe the Staff Judge Advocate excused
             alternate members which, you, in fact, excused. In
             paragraph 1e of the defense submission, the defense
             counsel claims that no documentation was ever provided
             for establishing member absences. I disagree. It was
             made known at the time of trial that these documents were
             present and available for review.

However, the SJA failed to comment on appellant’s third allegation of error
addressing the military judge’s denial of a defense causal challenge.

      To the extent the SJA’s response to the allegations of legal error could be
construed as “new matter,” appellant and his defense counsel should have been
served with the addendum and given the opportunity to respond. See R.C.M.
1106(f)(7). But, this does not end our analysis. In order to succeed on appeal,
“appellant [must] demonstrate prejudice by stating what, if anything, would have
been submitted to ‘deny, counter, or explain’ the new matter.” United States v.
Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997). While the threshold is low,
appellant must make some colorable showing of possible prejudice. Id. Here,
appellant has failed to demonstrate any prejudice, as he has failed to establish what
would have been submitted to “deny, counter, or explain” the new matter.




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SUMMERLOTT—ARMY ARMY 20120352

       Additionally, we find the SJA erred when he failed to comment on appellant’s
allegation of legal error regarding the military judge’s denial of a defense causal
challenge. * See R.C.M. 1106(d)(4). However, pursuant to United States v. Hill, 27
M.J. 293, 297 (C.M.A. 1988), we are “free to affirm when a defense allegation of
legal error would not foreseeably have led to a favorable recommendation by the
[SJA] or to corrective action by the [CA].” Based on the record before us, we find
any legal error raised by appellant’s allegation lacked merit and would not have
resulted in a favorable recommendation by the SJA or any corrective action by the
CA.

                                  CONCLUSION

       On consideration of the entire record and those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we
hold the findings of guilty and the sentence as approved by the convening authority
correct in law and fact. Accordingly, those findings of guilty and the sentence are
AFFIRMED.



                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:




                                      MALCOLM
                                      MALCOLM H.  H. SQUIRES,
                                                     SQUIRES, JR.
                                                              JR.
                                      Clerk of Court
                                      Clerk of Court




*
  Subsequent to the military judge’s denial of defense’s challenge for cause of
Command Sergeant Major (CSM) WM, the defense successfully used a peremptory
challenge to excuse CSM WM. In accordance with R.C.M. 912(f)(4), further
consideration of this challenge is precluded.



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