              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
           F.D. MITCHELL, J.R. MCFARLANE, M.C. HOLIFIELD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                          ISMAEL MORALES
                   PRIVATE (E-1), U.S. MARINE CORPS

                            NMCCA 201400388
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 24 July 2014.
Military Judge: LtCol C.A. Miracle, USMC.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: Capt M.G.
Blackborow, USMC.
For Appellant: Maj Michael D. Berry, USMCR.
For Appellee: Mr. Brian K. Keller, Esq.

                           19 February 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A special court-martial, consisting of a military judge
alone, convicted the appellant, pursuant to his pleas, of one
specification of violating a lawful general order, one
specification of dereliction of duty, and one specification of
adultery, in violation of Articles 92 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892 and 934. The appellant was
sentenced to a bad-conduct discharge. The convening authority
(CA) approved the adjudged sentence and, pursuant to a pretrial
agreement, suspended the bad-conduct discharge.

            Failure to Treat VLC Letter as New Matter

      Although not assigned as error, we note that the appellant
was not afforded an opportunity to comment on the letter
submitted by the Victim’s Legal Counsel (VLC) to the CA after
the initial staff judge advocate’s recommendation (SJAR). The
SJAR was signed on 26 September 2014. The appellant, through
counsel, waived his right to submit matters in clemency on 17
October 2014. The VLC submitted a letter to the CA on 30
September 2014, which commented on matters outside the record
pertaining to alleged misconduct far more serious than that to
which the appellant pleaded guilty. There is nothing in the
record to indicate the appellant was aware of the VLC letter.
The addendum to the SJAR includes the VLC letter, but does not
treat it as a “new matter” requiring an additional opportunity
for the appellant and his counsel to comment. See RULE FOR COURTS-
MARTIAL 1106(f)(7), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.). Given the contents of the VLC’s letter, we find this to
be error.

     When new matter is presented to the CA without giving the
appellant an opportunity to respond, the burden is on the
appellant to “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
(C.A.A.F. 1997) (citation and internal quotation marks omitted).
Although the threshold is “low,” United States v. Catalani, 46
M.J. 325, 327 (C.A.A.F. 1997), the appellant must demonstrate
that the proffered response to the unserved addendum “could have
produced a different result.” United States v. Brown, 54 M.J.
289, 293 (C.A.A.F. 2000). The appellant has not met that burden
and therefore is not entitled to relief.

                            Conclusion

     The findings and the sentence as approved by the CA are
affirmed.

                                 For the Court



                                 R.H. TROIDL
                                 Clerk of Court


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