          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600379
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                             RANDY M. SO
             Private First Class (E-2), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

         Military Judge: Colonel James K. Carberry, USMC.
   Convening Authority: Commanding Officer, Headquarters and
 Support Battalion, Marine Corps Installations -West, Marine Corps
                  Base, Camp Pendleton, California
 Staff Judge Advocate’s Recommendation: Lieutenant Colonel Todd
                           Enge, USMC.
     For Appellant: Captain Kimberly D. Hinson, JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Captain Sean M. Monks,
                               USMC.
                      _________________________

                        Decided 28 December 2017
                         _________________________

 Before H UTCHISON , FULTON, and S AYEGH , Appellate Military Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   HUTCHISON, Senior Judge:
   A military judge sitting as a special court-martial convicted the appellant,
pursuant to his plea, of unauthorized absence in violation of Article 86,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886. The military
judge sentenced the appellant to 60 days’ confinement, reduction to pay grade
                           United States v. So, No. 201600379


E-1, forfeiture of $900.00 pay per month for two months, and a bad-conduct
discharge. The convening authority (CA) approved the sentence as adjudged.
    This case is before us a second time. In United States v. So, No.
201600379, 2017 CCA LEXIS 148, unpublished op. (N-M. Ct. Crim. App. 17
Mar 2017), we set aside the CA’s action and remanded for new post-trial
processing after we determined that the staff judge advocate’s
recommendation (SJAR) erroneously advised the CA regarding his authority
to grant clemency. The appellant now alleges that following our remand:
1) the government failed to serve him with a copy of the new SJAR in
violation of RULE FOR COURTS-MARTIAL (R.C.M.) 1106(f)(1), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.); and 2) that his trial defense
counsel’s (TDC) failure to contact him regarding the new SJAR and the
opportunity to submit clemency constituted ineffective assistance of counsel.
We agree with the appellant’s first assignment of error, and once again set
aside the CA’s action.1
                                    I. BACKGROUND
    Following our remand, the CA’s staff judge advocate (SJA) prepared a
new SJAR dated 25 May 2017, in which he correctly advised the CA
regarding his unfettered authority to grant clemency. On 31 May 2017, the
TDC acknowledged receipt of the SJAR and indicated he had no additional
matters to submit beyond those submitted on 26 September 2016, prior to the
original CA’s action. There is no indication in the record that the SJAR was
ever personally served on the appellant as he requested.2
    In a post-trial declaration, the appellant asserts that he never received a
copy of the new SJAR and that after he went on appellate leave he exchanged
“brief text messages and maybe a phone call” with his TDC, but they did not
discuss anything about his case.3 In his affidavit, the TDC confirms that, “to
the best of [his] recollection, [he] left a voicemail for [the appellant]” but did
not receive an answer and “did not attempt further contact.”4 After consulting
with his supervisory counsel, the TDC decided that the matters previously




   1   Our resolution of the first assignment of error renders the appellant’s
ineffective assistance of counsel claim moot.
   2   See Record at 26; Appellate Exhibit III at 3.
   3 Motion to Attach Declaration of Appellant filed on 2 Aug 2017, Appellant’s
Declaration of 31 Jul 2017 at 2.
   Appellee’s Response to Court Order filed on 21 Nov 2017, Affidavit of Captain
   4

MAM of 20 Nov 2017.
                                               2
                           United States v. So, No. 201600379


submitted “mirrored any additional clemency matters that [he] might
submit.”5
                                     II. DISCUSSION
    The Court of Appeals for the Armed Forces (CAAF) has established a test
to resolve claims of error connected with the CA’s post-trial review. “First, an
appellant must allege the error at the Court of Criminal Appeals. Second, an
appellant must allege prejudice as a result of the error. Third, an appellant
must show what he would do to resolve the error if given such an
opportunity.” United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998).
   We first examine the appellant’s alleged error. R.C.M. 1106(f) provides:
         Before forwarding the [SJAR] . . . to the [CA] for action under
         R.C.M. 1107, the [SJA] shall cause a copy of the [SJAR] to be
         served on the counsel for the accused. A separate copy will be
         served on the accused. If it is impracticable to serve the [SJAR]
         on the accused for reasons including the transfer of the accused
         to a different place, the unauthorized absence of the accused, or
         military exigency, or if the accused so requests on the record at
         the court-martial or in writing, the accused’s copy shall be
         forwarded to the accused’s defense counsel. A statement shall
         be attached to the record explaining why the accused was not
         served personally.
(Emphasis added). The record contains no statement explaining why the
appellant was not served personally, and we find that it was not
impracticable to do so. The appellant’s phone number, e-mail address, and
physical address are recorded in the record of trial and have remained the
same throughout the post-trial process.6 Hence, we are convinced that the
government’s failure to personally serve the appellant was error.
    Regarding prejudice, “[b]ecause clemency is a highly discretionary
[e]xecutive function, there is material prejudice to the substantial rights of an
appellant if there is an error and the appellant ‘makes some colorable
showing of possible prejudice.’” Wheelus, 49 M.J. at 289 (quoting United
States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). Here the appellant
contends that because he was never served with the SJAR—and because his
TDC did not contact him—he had no opportunity to submit matters for the
CA’s consideration. Had he responded to the SJAR, the appellant states that
he would have provided additional matters, beyond what he submitted before


   5   Id.
   6   See Appellant’s Declaration at 2.
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the initial CA’s action. Specifically, the appellant would have submitted
material explaining that he was currently enrolled in college classes working
towards an accounting degree and that he was working part-time preparing
tax returns. In addition, the appellant would have described the worsening
medical condition of his father and his role as full-time caretaker for his
parents. In short, the appellant avers that he would have “explained to the
CA what [he was] doing to contribute as a member of society.”7
    Given this CA’s broad discretion with regards to action on the findings
and sentence, we cannot speculate what, if any, clemency he might have
provided. But the failure to serve the appellant a copy of the SJAR foreclosed
his ability to even submit matters for the CA’s consideration. We, therefore
conclude that the appellant has made a colorable showing of possible
prejudice.
                              III. CONCLUSION
   The CA’s action is set aside. The record of trial is returned to the Judge
Advocate General for remand to an appropriate CA for new post-trial
processing with the appellant represented by conflict-free counsel. The record
shall then be returned to this court for review under Article 66(c), UCMJ.
   Judge FULTON and Judge SAYEGH concur.
                                      For the Court




                                      R.H. TROIDL
                                      Clerk of Court




   7   Id. at 3.
                                        4
