                         UNITED STATES, Appellee

                                         v.

  David V. MENDOZA, Aviation Electronics Technician Third Class
                       U.S. Navy, Appellant

                                  No. 08-0246
                        Crim. App. No. 200602353

       United States Court of Appeals for the Armed Forces

                       Argued September 24, 2008

                        Decided October 28, 2008

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant:    Lieutenant Kathleen L. Kadlec, JAGC, USN
(argued).


For Appellee: Captain Geoffrey S. Shows, USMC (argued);
Commander Paul LeBlanc, JAGC, USN (on brief).


Military Judge:    Salvador A. Dominguez


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mendoza, No. 08-0246/NA


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether a convening

authority may take a new action on remand without receiving a

new staff judge advocate’s/legal officer’s recommendation

(SJAR/LOR) and affording the accused an opportunity to present

additional matters under Rule for Courts-Martial (R.C.M.) 1105.

We hold that a new action requires a new SJAR/LOR under R.C.M.

1106 and the opportunity for the accused to submit additional

matters under R.C.M. 1105.1

                              I.   Facts

     In exchange for the convening authority’s agreement to cap

his sentence, Appellant pled guilty to one specification of

unlawfully uttering thirty-nine checks, knowing that the funds

in his account were insufficient to pay the checks.   Article

123a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 923a

(2000).   The military judge sentenced Appellant to a bad-conduct

discharge, confinement for ninety days, and reduction to the

lowest enlisted grade.   In his clemency submission, Appellant

asked the convening authority to disapprove the bad-conduct

discharge.   The convening authority’s action, dated October 16,

2006, stated, in pertinent part, “only such of the sentence as



1
  In light of our decision, Appellant’s motions to grant review
of a supplemental issue and to attach documents are denied as
moot.

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United States v. Mendoza, No. 08-0246/NA


provides for reduction to the grade of pay grade E-1,

confinement for 90 days, is approved and except for the part of

the sentence extending to a bad conduct discharge, will be

executed.”

     The United States Navy-Marine Corps Court of Criminal

Appeals (CCA) concluded that the language set out above was

“ambiguous and not susceptible to interpretation,” set aside the

convening authority’s action, and returned the case “to the

Judge Advocate General of the Navy for submission to an

appropriate convening authority for proper post-trial processing

in accordance with Rule for Courts-Martial 1107.”   United States

v. Mendoza (Mendoza I), No. 200602353, slip op. at 1-2 (N-M. Ct.

Crim. App. Mar. 20, 2007) (per curiam).

     On May 29, 2007, a successor in command took a new action

that stated, in pertinent part, “the sentence is approved and,

except for that part of the sentence extending to a bad-conduct

discharge, will be executed.”    There is no evidence that the new

convening authority consulted with his predecessor to divine the

intent of the original action.   A new staff judge advocate’s or

legal officer’s recommendation (SJAR/LOR) was not prepared, and

there is no evidence that the defense was afforded an

opportunity to present the new convening authority with any

additional clemency matters.




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United States v. Mendoza, No. 08-0246/NA


       When the case was returned to the CCA, Appellant notified

the court that he did not intend to file any additional

assignments of error.   United States v. Mendoza (Mendoza II), 65

M.J. 824, 825 (N-M. Ct. Crim. App. 2007).   Nevertheless, the CCA

specified the issue currently before this Court.    Id.   The CCA

declined Appellant’s invitation to establish a per se rule that

would require a new SJAR/LOR and clemency submission whenever

there is a new action by the convening authority.   Id.

Consistent with its unpublished opinion in United States v.

Lawhorn, No. 200600128, 2007 CCA LEXIS 195, at *12 n.3, 2007 WL

1774485, at *4 n.3 (N-M. Ct. Crim. App. June 20, 2007), the CCA

concluded that “the passage of time and the particular post-

trial circumstances of an appellant may in some cases, create a

presumption of staleness requiring a new SJAR/LOR and a new

opportunity to submit clemency matters.”    Mendoza II, 65 M.J. at

825.   In this particular case, however, according to the CCA,

Appellant failed to provide evidence of changed circumstances,

and the passage of time alone was not sufficient to support a

presumption that the original SJAR/LOR was stale.   Id. at 826.

The CCA concluded that it was not error to issue the new action

without a new SJAR/LOR, and even if it was error, it was

harmless beyond a reasonable doubt.   Id.




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                          II.    Discussion

     When the action of a convening authority is “incomplete,

ambiguous, or contains clerical error,” a Court of Criminal

Appeals may “instruct[]” the convening authority who took the

action “to withdraw the original action and substitute a

corrected action,” R.C.M. 1107(g), and the convening authority

shall “modify” the action accordingly.    R.C.M. 1107(f)(2).     If

the original convening authority has been replaced by a

successor, there must be some evidence that the successor

convening authority communicated with the original convening

authority and that the corrected action reflects the original

convening authority’s intent.    United States v. Lower, 10 M.J.

263, 265 (C.M.A. 1981).   Alternatively, the successor convening

authority may issue a new action after receiving a new SJAR/LOR

that was served on the defense, providing the accused a new

opportunity to submit clemency matters.       United States v.

Gosser, 64 M.J. 93, 96-97 (C.A.A.F. 2006) (per curiam).

     In Mendoza I, however, the CCA did not instruct the

convening authority to withdraw the original ambiguous action

and substitute a corrected action.     Instead, it set aside the

action and directed return of the record “to the Judge Advocate

General of the Navy for submission to an appropriate convening

authority for proper post-trial processing in accordance with

Rule for Courts-Martial 1107.”    This ruling perforce required


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the convening authority to take a new, as opposed to a

corrected, action.

     Before taking action on a case, the convening authority

“shall consider,” among other things, the SJAR/LOR under R.C.M.

1106 and any matters submitted by the accused under R.C.M. 1105.

R.C.M. 1107(b)(3)(A)(ii), (iii); see Article 60(c)(2), UCMJ, 10

U.S.C. § 860(c)(2) (2000).   We find no basis for the CCA’s

holding that a new SJAR/LOR is required only when the existing

one is stale or when the accused shows changed circumstances.      A

new, as opposed to a corrected, action requires a new SJAR/LOR

under R.C.M. 1106 and the opportunity for the accused to submit

additional matters under R.C.M. 1105.2

                        III.   Disposition

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.       The record is returned to the

Judge Advocate General of the Navy for remand to the Court of

Criminal Appeals to determine whether Appellant was prejudiced

by the successor convening authority’s acting without the

benefit of a new SJAR/LOR and without affording Appellant an

opportunity to provide additional matters under R.C.M. 1105.


2
  In Mendoza II, Appellant did not attempt to show prejudice
before the CCA as a consequence of errors in post-trial review.
Instead, he filed a motion to attach documents with this Court,
alleging such prejudice. Such claims must be raised before the
CCA. United States v. Wheelus, 49 M.J. 283, 288-89 (C.A.A.F.
1998).

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