

   
   
   
   U.S. v. Schrode



IN THE CASE OF
UNITED STATES, Appellee
v.
Keith W. SCHRODE, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-0029
Crim. App. No. 96-0449
 
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
Argued November 19, 1998
Decided June 30, 1999

COX, C.J., delivered the opinion
of the Court, in which SULLIVAN, CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Lieutenant Frank
M. Doherty, JAGC, USNR (argued); Lieutenant Syed N. Ahmad, JAGC,
USNR (on brief).
For Appellee: Lieutenant James E.
Grimes, JAGC, USNR (argued); Colonel K. M. Sandkuhler, USMC,
and Commander D. H. Myers, JAGC, USN (on brief); Colonel Charles
Wm. Dorman, USMC, and Lieutenant J. R. McFarlane, JAGC, USNR.
Military Judge: R. K. Fricke
 

THIS OPINION
IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Chief Judge COX delivered the opinion
of the Court.

Facts
Appellant was tried at a special court-martial
by a military judge alone. Pursuant to his pleas, he was convicted of absence
without leave, violation of a lawful general order, and possession and
use of marijuana, in violation of Articles 86, 92, 112a, Uniform Code of
Military Justice, 10 USC §§ 886, 892, and 912a, respectively.
He was sentenced to 90 days confinement, forfeiture of $500 pay per month
for 3 months, reduction to E-1, and a bad-conduct discharge. The convening
authority approved the sentence, and the Court of Criminal Appeals affirmed
the findings and sentence in an unpublished, per curiam opinion.
Appellants trial concluded on September
19, 1995. His counsel received the authenticated record on November 3,
1995. The staff judge advocates (SJA) recommendation to the convening
authority was dated November 16, 1995, as was the convening authoritys
action approving the sentence. In that action, the convening authority
stated that he considered both the SJA recommendation and the clemency
matters submitted by appellant in arriving at a decision. However, appellants
counsel did not receive a copy of the SJA recommendation until November
20, 1995, and appellant never submitted clemency matters or a response
to the SJA recommendation.

Issue



WHETHER THE OBVIOUS ERRORS IN THE
POSTTRIAL PROCEEDINGS IN THIS CASE SO UNDERCUT THE PRESUMPTION OF REGULARITY
THAT THE ACTION OF THE CONVENING AUTHORITY SHOULD BE SET ASIDE.*/


Analysis
The objective of posttrial procedure
is to ensure that the convening authority has all relevant information
related to the accused and the charges prior to when he takes his action.
Posttrial procedure includes:
(1) An optional submission by the accused
of matters for consideration related to the findings and sentence (Art.
60(b), UCMJ, 10 USC § 860(b); RCM 1105, Manual for Courts-Martial,
United States (1998 ed.));
(2) A recommendation by the SJA in
all general court-martial cases and any special court-martial cases involving
a bad-conduct discharge (Art. 60(d); RCM 1106); and
(3) An optional response to this by
the accused (Art. 60(d); RCM 1106(f)(4)).
In the instant case, appellant tendered
neither an initial submission nor a response to the SJA's recommendation,
regardless that it was delivered to his counsel after the convening authority's
action. In fact, his counsel noted in an affidavit that "[t]here were no
RCM 1106 matters." In spite of these facts, appellant maintains he was
prejudiced by the convening authority's taking action without consideration
of clemency submissions that he did not submit.
While the convening authority should
have exercised somewhat more care when he signed the action document, which
stated that he had considered the clemency matters submitted by defense
counsel on appellants behalf, the oversight resulted in no prejudice to
appellant. See United States v. Chatman, 46 MJ 321 (1997);
cf.
United
States v. Howard, 47 MJ 104 (1997) (posttrial error tested for prejudice).His
position is the same as it would have been had the convening authority's
action letter simply noted that he did not consider any submissions by
appellant because there were none.

Conclusion
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*/
See
50 MJ 49 (1998).

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