                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                  Amanda L. GILBREATH, Airman First Class
                         U.S. Air Force, Appellant


                                     No. 01-0738


                             Crim. App. No.          34091

        United States Court of Appeals for the Armed Forces

                            Argued February 6, 2002

                             Decided July 11, 2002

   SULLIVAN, S.J., delivered the opinion of the Court, in which
   GIERKE and EFFRON, JJ., joined. BAKER, J., filed an opinion
   concurring in the result. CRAWFORD, C.J., filed a dissenting
    opinion.

                                        Counsel

For Appellant:      Captain Jefferson      B.  Brown  (argued); Lieutenant
     Colonel Beverly N. Knott and Lieutenant Colonel Timothy W. Murphy (on
     brief); Captain Shelly Schools.




For Appellee: Captain Mathew J. Mulgarger (argued); Colonel Anthony Dattilo
     and Lieutenant Colonel Lance B. Sigmon (on brief).




Military Judge:    Steven A. Gabrial


         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gilbreath, No. 01-0738/AF


     Senior Judge SULLIVAN delivered the opinion of the Court.


     On March 9, 2000, appellant, an airman first class, was

tried by a general court-martial composed of a military judge

alone at Nellis Air Force Base, Nevada.       She pleaded guilty to a

single specification of wrongfully using cocaine, in violation

of Article 112a, Uniform Code of Military Justice, 10 USC §

912a.   She was sentenced by a military judge to a bad-conduct

discharge and reduction to E-1.       On April 26, 2000, the

convening authority approved this sentence, and the Court of

Criminal Appeals affirmed on May 31, 2001.



     Review was granted in this case on November 8, 2001, on two

issues specified by this Court.       We asked:



                                  I

           WHETHER IT WAS ERROR FOR THE STAFF JUDGE
           ADVOCATE TO NOT SERVE ON THE DEFENSE AN
           ADDENDUM WHICH RECOMMENDED THAT THE
           CONVENING AUTHORITY APPROVE THE SENTENCE
           BECAUSE IT HAD BEEN ADJUDGED BY A
           “JURY.”

                                  II

           WHETHER THE STAFF JUDGE ADVOCATE’S
           RECOMMENDATION TO THE CONVENING
           AUTHORITY PROPERLY ADDRESSED THE
           DIFFERENCES BETWEEN CLEMENCY AND
           SENTENCE APPROPRIATENESS.




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United States v. Gilbreath, No. 01-0738/AF


We hold that prejudicial error occurred when the staff judge

advocate failed to serve his addendum on the defense before the

convening authority took his action in this case.            See United

States v. Catalani, 46 MJ 325 (1997)(holding that failure of

staff judge advocate to serve addendum on defense when it relied

on prior sentencing decision of the “seniormost military judge

in the Pacific” was prejudicial error).1



     Appellant was a nineteen-year-old airman with less than

three months active duty served at the time of her offense.                She

admitted to a single use of cocaine with a civilian and another

servicemember in November of 1999 in a hotel room in Las Vegas,

Nevada.   She became ill but did not require medical attention.

At her court-martial, appellant requested trial by military

judge alone, and she pleaded guilty to the charged offense.                She

had no pretrial agreement and no prior disciplinary record.                She

made an unsworn statement accepting responsibility for her

actions, recognizing that her military career was over, and

asking for a chance to start over in civilian life. (R. 72)                Her

defense counsel argued against confinement (R. 82) and called

several   witnesses who testified to her traumatic childhood,

including her rape by her stepfather, and her potential to

rehabilitate herself.


1 In view of our resolution of the first issue in this case, we need not


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United States v. Gilbreath, No. 01-0738/AF




      On March 9, 2000, the military judge in this case imposed a

sentence of a bad-conduct discharge and reduction to E-1.    The

staff judge advocate in his original recommendation recommended

that the sentence as adjudged be approved by the convening

authority.    It was received by defense counsel on April 12,

2000.

On April 24, 2000, appellant’s defense counsel submitted a

request for clemency to the convening authority stating that “AB

Gilbreath’s sole request is that the Bad Conduct Discharge be

upgraded to a general discharge.”        She said:



            3. A Bad Conduct Discharge is not
            necessary to rehabilitate AB Gilbreath
            or to deter others from committing like
            offenses. AB Gilbreath was new to the
            military and had never lived away from
            home before. Both before and after
            charges were preferred, AB Gilbreath was
            a good duty performer, as evidenced by
            the character statements submitted
            during sentencing. AB Gilbreath spent
            many months waiting to be able to plead
            guilty, and waiting to testify against
            her good friend. These experiences have
            taught her a great deal and have been a
            powerful incentive for her to conduct
            herself more responsibly. A federal
            conviction and end of her Air Force
            career is ample deterrence. She has
            accepted full responsibility for her
            crimes and is determined to be a good,
            responsible citizen. AB Gilbreath is 19


answer the second specified issue.


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United States v. Gilbreath, No. 01-0738/AF


          years old. Her crimes must cost AB
          Gilbreath her Air Force career, however,
          they need not jeopardize her future.
          This federal court conviction will cause
          her difficulty enough in furthering her
          education and obtaining meaningful
          employment. Accordingly, on behalf of
          AB Gilbreath, I respectfully request
          that the BCD be remitted or she be
          administratively discharged.

          4. In deciding upon the sentence to
          approve for AB Gilbreath, please
          consider all of the evidence put forth
          at trial, including the Defense Exhibits
          and her statement, as well as the
          attached letter from AB Gilbreath, and
          the supporting documents. AB Gilbreath
          requests that you approve a sentence
          which gives her a second chance for a
          productive future as a civilian. I
          respectfully ask you to disapprove the
          bad conduct discharge or recommend that
          the Secretary of the Air Force’s
          designee substitute an administrative
          discharge for the punitive one in
          accordance with Article 74(b), UCMJ.

    Appellant in her clemency statement further said:

          My name is Amanda Lynn Gilbreath. I was
          court-martialed on 9 Mar 00 for wrongful
          use of cocaine. I was reduced from E-3
          to E-1 and was given a Bad Conduct
          Discharge. I am asking to have the Bad
          Conduct Discharge upgraded to a General
          Discharge. I am asking for this because
          I know how difficult it is going to be
          for me to get a job and people are going
          to treat me differently. I know I
          deserve to be punished, but I would like
          a second chance. This was a single
          incident and I would never use cocaine
          again. I realize how it can really mess
          up your future. I have also had to
          testify for the government in a good
          friend’s court-martial so this incident


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United States v. Gilbreath, No. 01-0738/AF


            has definitely made an impact on my
            life. I am only 19 years old and I have
            a lot of life ahead of me and there are
            so many things that I would like to do.
            I need to be able to get a decent job so
            I can pay for my college, as I have no
            one to help me. Thank you for your
            consideration.

     (Emphasis added.)


     On April 26, 2000, the staff judge advocate prepared an

addendum again recommending that the sentence as adjudged be

approved.    He said in pertinent part:



            SUBJECT:   Addendum to Staff Judge
                       Advocate’s Recommendation-
                       United States v. AB Amanda L.
                       Gilbreath


            1. Pursuant to Article 60, UCMJ, AB
            Gilbreath has submitted the attached
            clemency matters. Rule for Courts-
            Martial 1107(b)(3)(A)(iii) provides that
            you must consider these written matters
            before taking final action in this case.
            In addition, you may consider the record
            of trial, background of the accused, and
            such other matters as you deem
            appropriate. However, if you consider
            matters adverse to the accused from
            outside the record, with knowledge of
            which the accused is not chargeable, the
            accused must be notified and given an
            opportunity to respond.

            2. The Defense Counsel received a copy
            of the SJA’s Recommendation on 12 Apr 00
            and AB Gilbreath received a copy of the
            record of trial and the SJA’s
            Recommendation on 12 April 00. Defense


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United States v. Gilbreath, No. 01-0738/AF


          Counsel made no objections to the SJA’s
          Recommendation and submitted clemency
          matters on 24 Apr 00. Defense Counsel
          makes a specific request to disapprove
          the bad conduct discharge adjudged at
          the court-martial or upgrade the
          discharge to a general discharge. The
          basis for this request is the potential
          ramifications of a bad conduct discharge
          on educational and employment
          opportunities. Defense Counsel also
          states a bad conduct discharge is not
          necessary to rehabilitate AB Gilbreath
          or to deter others. Defense Counsel
          asserts that AB Gilbreath has already
          learned from her experience and had to
          testify against a good friend. The
          accused also submitted a statement for
          your consideration, asking that her bad
          conduct discharge be upgraded to a
          general discharge, as this would enhance
          her opportunity of getting a decent job
          to pay for college. AB Gilbreath also
          submitted seven statements on her
          behalf.

          3. I have reviewed the attached
          clemency matters submitted by defense.
          I have carefully considered AB
          Gilbreath’s clemency request. I am not
          swayed by the defense argument that the
          bad conduct discharge should be remitted
          to an administrative discharge. The
          accused pled guilty to the Charge and
          Specification of use of cocaine and her
          sentencing case was heard before a jury.
          After hearing all matters, the jury
          determined a bad conduct discharge was
          appropriate and as such, I recommend you
          approve the sentence as adjudged.

          4. RECOMMENDATION: After consideration
          of all matters in the record of trial,
          including those presented by the accused
          during the sentencing portion of the
          trial, and the matters submitted in




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United States v. Gilbreath, No. 01-0738/AF


          clemency, I recommend the sentence be
          approved as adjudged. . . .

     (Emphasis added.)


     The staff judge advocate did not serve the addendum to his

recommendation on the defense prior to the convening authority’s

action in this case.     The convening authority approved the

adjudged sentence as recommended by his staff judge advocate on

April 26, 2000.   The addendum of the staff judge was eventually

served on defense counsel on May 10, 2000, when she also

received the convening authority’s action and a copy of the

promulgating order.

                                ___ ___ ___



     Our starting point in reviewing the first specified issue

is RCM 1106(f)(7), Manual for Courts-Martial, United States

(2000 ed.).   It states:



            (7) New matter in addendum to
          recommendation. The staff judge
          advocate or legal officer may supplement
          the recommendation after the accused and
          counsel for the accused have been served
          with the recommendation and given an
          opportunity to comment. When new matter
          is introduced after the accused and
          counsel for the accused have examined
          the recommendation, however, the accused
          and counsel for the accused must be
          served with the new matter and given 10
          days from service of the addendum in


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United States v. Gilbreath, No. 01-0738/AF


          which to submit comments. Substitute
          service of the accused’s copy of the
          addendum upon counsel for the accused is
          permitted in accordance with the
          procedures outlined in subparagraph
          (f)(1) of this rule.

                          Discussion

            “New matter” includes discussion of
          the effect of new decisions on issues in
          the case, matter from outside the record
          of trial, and issues not previously
          discussed. “New matter” does not
          ordinarily include any discussion by the
          staff judge advocate or legal officer of
          the correctness of the initial defense
          comments on the recommendation.

     (Emphasis added.)

     This Manual provision clearly authorizes the staff judge

advocate to submit an addendum to his post-trial recommendation

to the convening authority.   However, it also requires service

of that addendum on the defense if it includes “new matter” and

allows comment by the defense on that new matter.    See generally

United States v. Norment, 34 MJ 224, 226 (CMA 1992)(citing

United States v. Narine, 14 MJ 55 (CMA 1982)).   Appellant

asserts that the staff judge advocate’s addendum in this case

introduced “new matter” which called for defense counsel notice

and response.   See United v. Catalani, supra.



     The Government does not contest appellant’s argument that

the staff judge advocate’s addendum presented “new matter”




                                 9
United States v. Gilbreath, No. 01-0738/AF


within the meaning of RCM 1106(f)(7).    Instead, it argues that

appellant has not met her burden to show the failure to serve

the addendum on the defense was prejudicial.    It concedes that

“the addendum to the Staff Judge Advocate Recommendation (SJAR)

did contain an error,” (Final Brief at 1) in that the staff

judge advocate erroneously advised the convening authority that

a “jury,” rather than a judge, had determined an appropriate

sentence for appellant.    It disagrees, however, that the staff

judge advocate also advised the convening authority that this

jury had considered the clemency materials submitted by

appellant after trial.    In sum, the Government argues, as the

Court of Criminal Appeals found, that the erroneous new matter

in the addendum was trivial and did not materially prejudice

appellant.



     Initially, we note our disagreement with the Government as

to the limited scope of the new matter introduced in this

addendum.    Paragraph 1 of the addendum addresses the fact that

appellant submitted post-trial “clemency matters” which must be

considered along with “the record of trial, background of the

accused, and such other matters as [the convening authority]

deems[s] appropriate.”    Paragraph 2 of the addendum specifically

identifies three post-trial clemency materials, including

appellant’s testimony at her friend’s court-martial and seven


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United States v. Gilbreath, No. 01-0738/AF


new statements submitted on her behalf.   Paragraph 3 of the

addendum acknowledges the staff judge advocate’s consideration

of these “clemency matters,” finds them unpersuasive, and states

as support for his view that “[a]fter hearing all matters, the

jury determined a bad conduct discharge was appropriate. . . .”

In our opinion, the logical import of the staff judge advocate’s

words was that the members of appellant’s court-martial had

already considered the clemency matters submitted by the defense

and found them unpersuasive, and the commander should defer to

their decision.



      In this light, the question before us is whether the

failure to serve an addendum with this particular type of new

matter in it prejudiced appellant.    See Article 59(a), UCMJ, 10

USC

§ 859(a).   Where erroneous post-trial reviews are involved, we

have not required a showing of actual prejudice to secure

appellate relief.   See United States v. Wheelus, 49 MJ 283, 289

(1998) (burden on defense to make “some colorable showing of

possible prejudice” from post-trial recommendation errors).

Instead, we have held that an appellant only has a burden to

make some colorable showing of possible prejudice “by stating

what, if anything, would have been submitted to ‘deny, counter,

or explain’ the new matter.”   United States v. Chatman, 46 MJ


                                11
United States v. Gilbreath, No. 01-0738/AF


321, 323 (CMA 1997).   Later, in United States v. Brown, 54 MJ

289, 293 (2000), we held that a new action was not required

where the defense on appeal fails to proffer a possible response

to the unserved addendum “that could have produced a different

result.”   (Emphasis added.)



     Turning to the case at bar, we note that the defense’s

initial sentencing approach was to argue that confinement was

inappropriate for appellant due to her tragic childhood, her

youthful inexperience, and her otherwise outstanding military

and civilian character.   While she conceded that her military

career was over, at no time did she concede that a punitive

discharge was appropriate.     Appellant was not sentenced to

confinement, but the judge did award her a bad-conduct discharge

and a two-pay-grade reduction.     After receiving this sentence,

she mounted a post-trial effort to have her punitive discharge

set aside as also being inconsistent with her chances for

successful rehabilitation in civilian life.     She offered

additional statements from sentencing witnesses in her case, as

well as statements from two other persons.     She also noted her

cooperation with law enforcement authorities in providing

testimony in the prosecution of one of her friends.




                                  12
United States v. Gilbreath, No. 01-0738/AF


      The staff judge advocate’s addendum was particularly

directed to rebutting appellant’s post-trial argument for

setting aside her bad-conduct discharge.          The premise of the

addendum was that those members selected for court-martial duty

by the convening authority had already considered the defense

clemency materials and found them unpersuasive.           See United

States v. Catalani, supra at 328-29.          The addendum further

suggested that the convening authority should defer to those

members’ judgment on sentence.2        It might also be construed as

suggesting that the convening authority not provide the

independent and fresh look by command authorities required by

Article 60, UCMJ, 10 USC § 860.

Id.; see also United States v Hamilton, 47 MJ 32, 35 (1997). But

there was no “jury” in this case.          The convening authority,

perhaps inadvertently, was misled into believing that the

officers he had selected to pass judgment in this case rejected

the merits of appellant’s clemency.          This “ghost jury” not only

was a new card on the table, but it was potentially a trump

card.   See United States v. Anderson, 53 MJ 374, 377 (2000)




2 As an example of such a view, General Jerome O’Malley, Commander in Chief
of the Pacific Air Force, noted in a letter to the Military Justice Act of
1983 Advisory Commission on August 13, 1984: “Because the military community
is both distinct as an entirety and varies from place to place and command to
command, court members are in the best position to act as the conscience of
the military community and to adjudge an appropriate sentence.” See II
Advisory Commission Report, The Military Justice Act of 1983 at 1172
(emphasis added).


                                      13
United States v. Gilbreath, No. 01-0738/AF


(holding unfavorable comments on clemency by chief of staff were

of devastating import).



     We will not speculate on what the convening authority would

have done in this case had defense counsel been properly served

with the addendum and allowed to respond.    See generally United

States v. Leal, 44 MJ 235, 237 (1996).   It suffices to say that

defense counsel could have pointed out the faulty factual

premises on which the staff judge advocate’s addendum

recommendation against clemency were based.   See United States

v. Heirs, 29 MJ 68, 69 (CMA 1989).   She also could have made a

persuasive argument that the staff judge advocate’s

recommendation that the convening authority defer to the

judgement of the court members was also legally improper.    See

United States v. Catalani, supra.    In view of the potentially

pivotal nature of the new matter in this case, we conclude that

these responses could have produced a different result and,

accordingly, a new review and action are required.    See United

States v. Brown, supra.



     The decision of the United States Air Force Court of

Criminal Appeals and the action of the convening authority are

set aside.   The record of trial is returned to the Judge

Advocate General of the Air Force for remand to a new convening


                                14
United States v. Gilbreath, No. 01-0738/AF


authority for a new post-trial recommendation and action.

Thereafter, Articles 66 and 67, UMCJ, 10 USC §§ 866 and 867,

will apply.




                               15
United States v. Gilbreath, No. 01-0738/AF


  BAKER, Judge (concurring in the result):

  I concur in the conclusions of the majority.     However, in

reaching this position, I do not rely on the majority's

construction of the staff judge advocate’s (SJA) addendum

as "suggesting that the convening authority not provide the

independent and fresh look by command authorities required

by Article 60, UCMJ, 10 USC § 860."     _ MJ at (11).   I

believe this overstates the import of the SJA's words and

intent.   In any event, this is a suggestion we need not

make in deciding this case.

  I also do not share the majority's view that United

States v. Catalani, 46 MJ 325 (1997), provides a

“persuasive argument that the staff judge advocate’s

recommendation that the convening authority defer to the

judgement of the court members was also legally improper.”

_ MJ at (12).   Nor is it necessary to put such an argument

in appellant’s mouth to resolve this case.     In Catalani,

this Court concluded:

     The issue before us is not whether it was
  permissible for the SJA to prepare an addendum that
  sought to bolster his initial recommendation through
  references to the stature and actions of the
  military judge. The issue, which we decide in
  appellant’s favor, involves failure to comply with
  RCM 1106(f)(7), under which appellant should have
  had an opportunity to receive notice of the new
  matter, along with the concomitant opportunity to
  respond to and correct the misleading information
United States v. Gilbreath, No. 01-0738/AF


  contained therein before the convening authority
  acted on appellant’s clemency petition.

46 MJ at 330.   It is this proposition for which appellant

cites Catalani.   Point made and taken.

  Finally, in concurring in the majority's result, I place

no weight on footnote three, which is not relevant to the

outcome of this case and was not argued by either party.
United States v. Gilbreath, No. 01-0738/AF


      CRAWFORD, Chief Judge (dissenting):

      Although the Government conceded that the staff judge

advocate’s (SJA) addendum presented new matter within the

meaning of RCM 1106(f)(7), Manual for Courts-Martial, United

States (2000 ed.), there has been no showing of prejudice under

the facts of this case.

      On the weekend of November 12-14, 1999, appellant and

several other airmen rented a motel room in the civilian

community of Las Vegas, Nevada.        A friend visited her and

brought a quantity of powdered cocaine, which they snorted.

After the First Sergeant received information from a

confidential source about the party, he requested that appellant

provide a urine specimen.       The urine specimen contained 3,587

nanograms per milliliter, showing more than casual use on a

weekend.*     This is not the type of individual that any convening

authority would keep in the service.

      The majority parses the words in the SJA addendum in such a

manner as to indicate that the convening authority was misled.

___ MJ at (9).     He was not.    Prior to taking action, the

convening authority was presented with a number of documents.

Among them was the initial SJA recommendation, which defense

counsel received on April 12, 2000.         Attached to this

*
  The cutoff level for reporting cocaine use is 100 nanograms per milliliter.
Memorandum, Department of Defense, Coordinator for Drug Enforcement and
United States v. Gilbreath, No. 01-0738/AF


recommendation was AF 1359, Report of Result of Trial.               This

report clearly reflected that appellant’s court-martial was

before a “judge alone,” not a “jury.”

      Additionally, when one examines the clemency materials

submitted by defense counsel in accordance with RCM 1105 and

1106(f)(4), it is blatantly obvious that these letters were

written subsequent to appellant’s court-martial.             Most of them

are dated April 20 or 21, 2000, and many speak to the sentence

appellant received.        Since matters in extenuation and mitigation

are presented to the sentencing authority of a court-martial

prior to a sentence being announced, there is no logical way

that the convening authority could or would have inferred that

appellant’s RCM 1105 submission was a rehashing of matters

previously submitted to the sentencing authority (regardless of

who that was).     While the SJA addendum was in error, there was

no confusion on the part of the convening authority as to the

sentencing authority, and what clemency material had been

previously considered by the military judge.




Policy Support, Subject:   Drug Urinalysis Testing Levels, para. 2 (May 12,
1997).
