                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                  Thomas A. STEPHENS, Private First Class
                        U.S. Marine Corps, Appellant

                                     No. 01-0750
                             Crim. App. No. 00-1833

             United States Court of Appeals for the Armed Forces

                                Argued February 6, 2002

                                Decided April 10, 2002




                                        Counsel

For Appellant:    Major Eric P. Gifford, USMC (argued and on brief).



For Appellee: Lieutenant Christopher J. Gramiccioni, JAGC, USNR (argued);
     Colonel Rose M. Favors, USMC (on brief); Major William J. Collins, Jr.,
     USMC.




Military Judge:    J.S. Brady




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Stephens, No. 01-0750/MC


   PER CURIAM:

    A special court-martial composed of a military judge sitting

alone convicted appellant, pursuant to his pleas, of

unauthorized absence terminated by apprehension and missing

movement, in violation of Articles 86 and 87, Uniform Code of

Military Justice, 10 USC §§ 886 and 887.     He was sentenced to a

bad-conduct discharge, confinement for seventy-five days,

forfeiture of $300 pay per month for three months, and reduction

to pay grade E-1.    The convening authority approved these

results, and the Court of Criminal Appeals affirmed in an

unpublished opinion.

     On appellant’s petition, we granted review of the following

issue:

            WHETHER APPELLANT WAS PREJUDICED BY THE
            CONVENING AUTHORITY'S FAILURE TO CONSIDER
            CLEMENCY MATERIAL SUBMITTED BY THE TRIAL
            DEFENSE COUNSEL.

For the reasons set forth below, we affirm.



                           I.   Background

     The staff judge advocate (SJA) completed his post-trial

recommendation to the convening authority on June 19, 2000.    The

SJA’s recommendation was served on appellant the following day.

Appellant submitted clemency materials to the SJA on July 13,

2000.    The SJA forwarded the clemency materials to the convening


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United States v. Stephens, No. 01-0750/MC


authority on September 6, 2000, as part of an addendum to the

recommendation.     The addendum, which was served on appellant,

also contained a proposed convening authority action. The

convening authority took final action on the case on October 20,

2000, noting that he “specifically considered the results of

trial, the record of trial, and the recommendation of the Staff

Judge Advocate.”     On appeal, appellant notes that the convening

authority’s final action listed materials considered by the

convening authority, and that the list did not mention the

clemency materials or the addendum to the SJA recommendation.

According to appellant, the omission of these materials from the

list is a significant indication that the convening authority

did not consider these materials prior to taking final action.



               II. Consideration of Clemency Materials

      Article 60, UCMJ, 10 USC § 860, and Rule for Courts-Martial

(RCM) 1107, Manual for Courts-Martial, United States (2000 ed.),∗

require the convening authority to consider clemency materials

submitted by the accused pursuant to RCM 1105 and 1106.             In

United States v. Craig, 28 MJ 321 (CMA 1989), our Court stated

that “[s]peculation concerning the consideration of such matters

simply cannot be tolerated in this important area of command


∗
  Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.


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United States v. Stephens, No. 01-0750/MC


prerogative.”   Id. at 325 (citing United States v. Siders, 15 MJ

272, 273 (CMA 1983).   Accordingly, “this court will not ‘guess’

as to whether clemency matters prepared by the defense counsel

were attached to the recommendation or otherwise considered by

the convening authority.”    Id. (quoting United States v.

Hallums, 26 MJ 838, 841 (ACMR 1988).



                            III. Discussion

     In Craig, the problem was caused by the fact that the SJA’s

recommendation expressly stated that the clemency materials were

attached at “TAB A,” but the recommendation in the record

contained no attachments identified as TAB A.    The present case

is distinguishable, because the addendum to the SJA’s

recommendation in the record was complete, and it included

appellant’s clemency materials.    We also note that the addendum

included a proposed action, which the convening authority signed

without change, indicating that he reviewed the addendum.

     With respect to appellant’s concern that the convening

authority’s final action did not include the clemency materials

in the list of materials he considered in reaching his decision,

we note that neither the UCMJ nor the Rules for Courts-Martial

require the convening authority to state in the final action

what materials were reviewed in reaching a final decision.    It

may be desirable to include such a list to facilitate


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United States v. Stephens, No. 01-0750/MC


consideration and appellate review, but it is not mandatory.   We

decline to hold that a document embodying the convening

authority’s final action is defective simply because it refers

to the SJA’s recommendation without also referring to

attachments, such as an addendum or clemency materials.



                           IV.     Conclusion

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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