                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     V.

                     Daniel D. DAVIS, Airman Basic
                       U.S. Air Force, Appellant


                               No. 02-0526


                         Crim. App. No. S30020



       United States Court of Appeals for the Armed Forces

                        Argued December 10, 2002

                       Decided February 14, 2003

    ERDMANN, J., delivered the opinion of the Court, in which
      CRAWFORD, C.J., GIERKE, EFFRON, AND BAKER, JJ., joined

                                  Counsel
For Appellant: Captain L. Martin Powell (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, and Captain Jennifer
K. Martwick (on brief); Major Jeffrey A. Vires.

For Appellee: Lieutenant Colonel Lance B. Sigmon (argued);
Lieutenant Colonel LeEllen Coacher (on brief).

Military Judge:    George E. Pavlik




  This opinion is subject to editorial correction before final publication.
United States v. Davis, No. 02-0526/AF


      Judge ERDMANN delivered the opinion of the Court.

      Appellant, Airman Basic (AB) Daniel D. Davis, United States

Air Force, was tried by special court-martial at Lackland Air

Force Base, Texas.      Pursuant to his pleas, he was convicted of

unauthorized absence and one specification each of wrongful use

of cocaine and wrongful use of marijuana, violations of

Articles 86 and 112a, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 886, 912a (2002), respectively.

A court of officer members sentenced him to a bad-conduct

discharge and confinement for three months.      The convening

authority approved the sentence as adjudged.      On March 7, 2002,

the Air Force Court of Criminal Appeals affirmed the findings and

sentence in an unpublished opinion.



      We granted review of the following issue:

            WHETHER IT WAS ERROR FOR THE CONVENING
            AUTHORITY TO PERFORM THE POST-TRIAL
            REVIEW OF APPELLANT’S CASE WHEN THE
            CONVENING AUTHORITY MADE STATEMENTS THAT
            DEMONSTRATED AN INELASTIC ATTITUDE
            TOWARD CLEMENCY.



      For the reasons set forth herein, we answer the granted

issue in the affirmative and return Appellant’s case for a new

action by a different convening authority.



                                    Facts
      Pursuant to a pretrial agreement with the convening

authority, Appellant providently pleaded guilty to using both

cocaine and marijuana and to being absent without authority



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United States v. Davis, No. 02-0526/AF


from December 21, 2000 until he was apprehended on February, 16,

2001.

       After trial, Appellant’s defense counsel submitted a

“memorandum for all reviewing authorities” entitled “Goode

Response and Clemency Petition – US v. Davis.”1       The memorandum

indicated that Appellant had petitioned the convening authority

for clemency and stated the following:

            We object to MajGen [F], 37th TRW/CC,
            being the convening authority for
            purposes of taking action on the
            sentence in this case. During the early
            part of this year, MajGen [F] gave
            several briefings at Lackland Air Force
            Base, Texas where he discussed illicit
            drug use by military members as being on
            the rise. During the briefings, MajGen
            [F] also publicly commented that people
            caught using illegal drugs would be
            prosecuted to the fullest extent, and if
            they were convicted, they should not
            come crying to him about their
            situations or their families[’], or
            words to that effect (Affidavit
            Attached). MajGen [F]’s comments
            seriously question his ability to act
            neutrally and impartially when
            determining whether AB Davis should
            receive any clemency on his case as AB
            Davis was indeed prosecuted and
            convicted of illegal drug use.

                 A convening authority should be
            able to objectively and impartially
            weigh all the evidence in the Record of
            Trial and clemency matters submitted by
            the accused (US v. Newman, 14 MJ 474,
            CMA 1983). Based on his comments,
            specifically those regarding ‘don’t come
            crying to me about your situation or
            your families[’],’ we do not believe
            MajGen [F] can be fair and impartial in
            this capacity. In our opinion, these
            comments illustrate MajGen [F]’s
            unwillingness to impartially listen to
            clemency petitions by those convicted of
            illegal drug use.
1
    United States v. Goode, 1 M.J. 3 (C.M.A. 1975).


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Appellant’s defense counsel executed the affidavit referenced in

the foregoing.     In the affidavit defense counsel indicated that

several individuals had told him about briefings in which Major

General (MG) F stated that “‘individuals under his command who

were caught using illegal drugs would be prosecuted to the

fullest extent, and if they were convicted, they should not come

crying to him about their situation or their families[’],’ or

words to that effect.”

      An addendum to the staff judge advocate’s post-trial

recommendation, dated September 14, 2001, was silent about the

convening authority’s alleged comments.           Despite Appellant’s

objections, MG F took action approving Appellant’s sentence as

adjudged.



                                 Background
      A convening authority is vested with substantial discretion

when he or she takes action on the sentence of a court-martial.

Article 60(c)(2) - (3), UCMJ, 10 U.S.C. § 860(c)(2) - (3) (2002);
Rule for Courts-Martial 1107 [hereinafter R.C.M.].           As a matter

of “command prerogative” a convening authority “in his sole

discretion, may approve, disapprove, commute, or suspend the

sentence in whole or in part.”           Article 60(c)(1) - (2).   The

convening authority’s broad authority is a significant reason

that we have noted that the convening authority is an accused’s

best hope for sentence relief.           United States v. Lee, 50 M.J.

296, 297 (C.A.A.F. 1999); United States v. Howard, 23 C.M.A. 187,

192, 48 C.M.R. 939, 944 (1974).



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United States v. Davis, No. 02-0526/AF


      Action on the sentence is not a legal review.      Rather, a

convening authority considers numerous factors and reasons in

determining a sentence that is "warranted by the circumstances of

the offense and appropriate for the accused.”       R.C.M. 1107(d)(2).

The convening authority must consider any matters submitted by

the accused pursuant to Article 60(b).       Article 60(c)(2), UCMJ;

see also R.C.M. 1105, 1106(f), 1107(b)(3)(A)(iii).

      In the performance of post-trial duties, a convening

authority acts in a “role . . . similar to that of a judicial

officer.”    United States v. Fernandez, 24 M.J. 77, 78 (C.M.A.
1987)(citing United States v. Boatner, 20 C.M.A. 376, 43 C.M.R.

216 (1971)).    The requirement for impartiality assures that the

convening authority gives full and fair consideration to matters

submitted by the accused and determines appropriate action on the

sentence.    “As a matter of right, each accused is entitled to an

individualized, legally appropriate, and careful review of his

sentence by the convening authority.”        Fernandez, 24 M.J. at 78.

This right is violated where a convening authority cannot or will

not approach post-trial responsibility with the requisite
impartiality.     Under such circumstances, a convening authority

must be disqualified from taking action on a record of court-

martial.    See Fernandez, 24 M.J. at 79; Howard, 23 C.M.A. at 192,

48 C.M.R. at 944.

      Our decisions disqualifying convening authorities from

taking post-trial action have fallen into two categories.       In the

first category, a convening authority will be disqualified if he

or she is an accuser, has a personal interest in the outcome of

the case, or has a personal bias toward the accused.       See, e.g.,


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United States v. Davis, No. 02-0526/AF


United States v. Voorhees, 50 M.J. 494 (C.A.A.F. 1999); United

States v. Crossley, 10 M.J. 376 (C.M.A. 1981); United States v.

Conn, 6 M.J. 351 (C.M.A. 1979); United States v. Jackson, 3 M.J.
153 (C.M.A. 1977); see also Article 1(9), UCMJ, 10 U.S.C. §

801(9)(2002).     In the second category, we have found convening

authorities to be disqualified if they display an inelastic

attitude toward the performance of their post-trial responsibility.

See, e.g., Fernandez, 24 M.J. at 79; Howard, 23 C.M.A. at 192, 48
C.M.R. at 944.     We review de novo claims that a convening

authority was disqualified from taking action on a court-martial

sentence. See Conn, 6 M.J. at 353.



                                 Discussion

      Appellant has not argued that MG F was an accuser or

possessed a personal, unofficial interest in Appellant’s case.

Rather, Appellant claims that the convening authority’s comments

“reflected his animosity toward drug users and his inelastic

attitude about the clemency process as a whole.”     The Government

responds that “[w]hile Major General [F’s] statements were
strong, they do not demonstrate a fixed and inelastic attitude

toward dealing with clemency petitions.”      The Government has not

disputed the fact that MG F made the comments attributed to him.

Thus, for purposes of this appeal, we will assume that MG F made

comments substantially as reported by trial defense counsel.     We

proceed to review those comments to determine whether MG F

possessed an inflexible, disqualifying attitude toward his post-

trial responsibilities.




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United States v. Davis, No. 02-0526/AF


      It is not disqualifying for a convening authority to express

disdain for illegal drugs and their adverse effect upon good

order and discipline in the command.         A commanding officer or

convening authority fulfilling his or her responsibility to

maintain good order and discipline in a military organization

need not appear indifferent to crime.         Adopting a strong anti-

crime position, manifesting an awareness of criminal issues

within a command, and taking active steps to deter crime are

consonant with the oath to support the Constitution; they do not

per se disqualify a convening authority.         See Fernandez, 24 M.J.
at 78-79; United States v. Harrison, 19 C.M.A. 179, 182, 41

C.M.R. 179, 182 (1970); United States v. Hurt, 9 C.M.A. 735, 761-

62, 27 C.M.R. 3, 44-45 (1958).

      In Fernandez, the convening authority issued a policy letter

to all battalion commanders.        That letter characterized illegal

drugs as a “threat to combat readiness” and reminded the

battalion “commanders that ‘detection and treatment of drug

abusers’ should ‘be a primary goal’.”         The convening authority

directed commanders to “personally screen the names of all court
member nominees . . . to ensure that only the most mature

officers and NCOs would be detailed for court-martial duty.”           The

policy letter stated that the “full weight of the military

justice system must be brought to bear against these criminals.”

The letter also told commanders to consult with legal advisors

before taking action.      24 M.J. at 79.

      We found that the policy letter “reveal[ed the convening

authority’s] serious concern about preventing the illegal

distribution of drugs in the force under his command” and that


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United States v. Davis, No. 02-0526/AF


“the letter taken as a whole indicate[d] a flexible mind

regarding the legally appropriate ways in which to deal with drug

dealers.”    Id.
      Although strong, the policy letter in Fernandez was

balanced, including references to treatment of drug abusers,

ensuring the “most mature” court members, and seeking legal

advice before disposing of offenses.         We held that the record did

not demonstrate predisposition to take any particular post-trial

action and that the convening authority was not disqualified

under Article 60.     Id.
      In the instant case, MG F made direct reference to his post-

trial role, asserting that those convicted of using drugs “should

not come crying to him about their situations or their

families[’].”      We believe that these words reflect an inflexible

attitude toward the proper fulfillment of post-trial

responsibilities in cases involving convictions for wrongful use

of controlled substances.       Unlike the convening authority in

Fernandez, MG F’s comments lacked balance and transcended a
legitimate command concern for crime or unlawful drugs.
      Regardless of the nature of the offense, a convicted

servicemember is entitled to individualized consideration of his

case post-trial.     That individualized consideration must be by a

neutral convening authority capable of fulfilling his or her

statutory responsibilities.       Statements reflecting an

unwillingness to consider each case fully and individually create

a perception that a convicted servicemember will be denied the

material right to individualized post-trial consideration and

action.   Where a convening authority reveals that the door to a


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United States v. Davis, No. 02-0526/AF


full and fair post-trial review process is closed, we have held

that the convening authority must be disqualified.

      In Howard, the convening authority issued a letter
communicating his views to convicted drug dealers.             In that

letter, he informed them that their pleas for clemency would be

answered in the following manner:             “‘No, you are going to the

Disciplinary Barracks at Fort Leavenworth for the full term of

your sentence and your punitive discharge will stand.’             Drug

peddlers, is that clear?”       23 C.M.A. at 191, 48 C.M.R. at 943.

Our Court held that the convening authority was disqualified from

taking action on those cases because his statement demonstrated

an inelastic attitude toward their clemency requests.             Id. at

192, 48 C.M.R. at 944.

      In United States v. Wise, 6 C.M.A. 472, 20 C.M.R. 188

(1955), we found that a convening authority’s policy that “he

would not consider the retention in the military service of any

individual who had been sentenced to a punitive discharge,” to be

“contrary to the intent and spirit of the Uniform Code of

Military Justice and the provisions of the Manual[.]”             Id. at
474, 476, 20 C.M.R. at 190, 192.             In both cases, the convening

authority “set[] forth in unmistakable terms” an unwillingness to

apply required standards and give individualized consideration

during the post-trial review process.             Howard, 23 C.M.A. 191, 48

C.M.R. at 943.     See also United States v. Walker, 56 M.J. 617

(A.F. Ct. Crim. App. 2001).

      The plain meaning of MG F’s words is equally as

“unmistakable.”     He erected a barrier to clemency appeals by

convicted drug users who wished to have “their situation or


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United States v. Davis, No. 02-0526/AF


families[’]” considered; he said, “Don’t come.”      He revealed his

attitude toward the clemency process under such circumstances; he

considered pleas for sentence relief as “crying.”      Finally, his

words reflected that the barrier and attitude related directly to

his post-trial role as a convening authority: “Don’t come crying

to me.”   These words unmistakably reflect an inelastic attitude

and predisposition to approve certain adjudged sentences.       This

attitude is the antithesis of the neutrality required of a

“commander’s prerogative that is taken in the interests of

justice, discipline, mission requirements, clemency, or other

appropriate reasons.”      Id. at 618 (citations omitted).

      The Government has called to our attention a court-martial

order reflecting that MG F provided relief in the form of

reducing forfeitures for another Airman convicted, pursuant to

his pleas, of using and distributing ecstasy.      We need not decide

whether the convening authority’s action in a separate case would

be sufficient to dispel evidence of an inelastic attitude.       The

bare order in that case does not provide information about the

facts and circumstances of that case, including the timing of the

convening authority’s action in relation to the command briefings

at issue here, nor are we privy to any circumstances surrounding

the clemency or plea bargaining process in that case.        Therefore,

we are not persuaded that MG F in fact possessed the required

impartiality with regard to his post-trial responsibilities.



                                 Decision.
      The decision of the United States Air Force Court of

Criminal Appeals is reversed, and the action of the convening


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United States v. Davis, No. 02-0526/AF


authority is set aside.       The case is returned to the Judge

Advocate General of the Air Force for a new review and action

before a different convening authority.




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