                           UNITED STATES, Appellee

                                           v.

   Sean M. WILLIAMS, Mess Management Specialist Seaman Recruit
                       U.S. Navy, Appellant


                                    No. 01-0675
                          Crim. App. No. 200000895


       United States Court of Appeals for the Armed Forces

                           Argued February 6, 2002

                            Decided June 19, 2002

BAKER, J., delivered the opinion of the Court, in which GIERKE
and EFFRON, JJ., joined. CRAWFORD, C.J., and SULLIVAN, S.J.,
each filed a dissenting opinion.



                                       Counsel

For Appellant: Lieutenant Marcus N. Fulton, JAGC, USNR
   (argued); Captain Donald L. Nelson, JAGC, USNR (on brief);
   Lieutenant Amanda St. Claire, JAGC, USNR.

For Appellee: Lieutenant Jason A. Lien, JAGC, USNR (argued);
   Colonel Rose M. Favors, USMC (on brief).




Military Judge:      David M. White



        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Williams, No. 01-0675/NA


        Judge BAKER delivered the opinion of the court.

        On November 16, 1999, appellant pled guilty without the

benefit of a pretrial agreement to unauthorized absence,

larceny, and forgery, in violation of Articles 86, 121, and 123,

Uniform Code of Military Justice, 10 USC §§ 886, 921, and 923,

respectively.        A military judge sitting as a special court-

martial found appellant guilty in accordance with these pleas

and adjudged a bad-conduct discharge, confinement for 100 days,

and a fine of $1,500.        The convening authority approved the

sentence as adjudged, and the Court of Criminal Appeals affirmed

in an unpublished opinion.         No. 200000895 (N-M. Ct. Crim. App.

May 7, 2001).        The granted issue requires our review of the

post-trial handling of a military servicemember’s case.1              Here,

we find error and remand.

                                  BACKGROUND

        After announcing the sentence during appellant’s court-

martial, the military judge made the following comments on the

record:

                   I would ask the trial counsel to pass
              to the convening authority the nature and
              content of the accused’s stated desire to
              have another chance and that he’s learned
              his lessons and that the convening authority
              and the chain of command that knows Seaman

1
    Granted Issue:

          WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FAILING TO
          REMAND THIS CASE TO THE CONVENING AUTHORITY FOR A NEW COMMAND
          JUDGE ADVOCATE’S RECOMMENDATION AND CONVENING AUTHORITY’S
          ACTION CONSISTENT WITH THE ASSIGNMENT OF ERROR RAISED BELOW.


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United States v. Williams, No. 01-0675/NA


            Recruit Williams take into consideration
            whether they want to defer or suspend any
            portion of this sentence in order to allow
            him to have a suspended bad-conduct
            discharge and demonstrate that his stated
            desire to continue his enlistment is
            something that he can pull off.

                 I say that in light of the nice
            testimonials from two pastors and from his
            mother concerning his intended desire to do
            well in the Navy, as well as his youth, and
            realizing that hopefully, if he has learned
            from this experience and the brig can
            perform its rehabilitative function, that
            Seaman Recruit Williams may have an
            opportunity to fulfill that enlistment.

      On January 19, 2000, trial defense counsel submitted

matters to the convening authority on behalf of appellant

pursuant to RCM 1105, Manual for Courts-Martial, United States

(2000 ed.).2    The submission expressly requested, inter alia,

that the convening authority suspend the bad-conduct discharge.

However, it did not reference the military judge’s comments made

on the record.     The command judge advocate’s recommendation

(CJAR), dated April 19, 2000, includes the first paragraph of

the military judge’s comments quoted above, but not the second

paragraph.     Trial defense counsel acknowledged receipt of the

recommendation on May 24, 2000; however, the convening authority

issued his action the previous day, May 23, 2000.

      RCM 1106(f) requires the following:

         (1)    Service of recommendation on defense
                counsel and accused. Before forwarding the
2
  All Manual provisions cited are identical to those in effect at the time of
trial.


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United States v. Williams, No. 01-0675/NA


               recommendation and the record of trial to
               the convening authority for action under
               RCM 1107, the staff judge advocate or legal
               officer shall cause a copy of the
               recommendation to be served on counsel for
               the accused.

      The court below found failure to serve defense counsel

prior to the convening authority’s action in this case to be

harmless error since the commander’s action stated that he had

considered the CJAR, the accused’s RCM 1105 submissions, and the

record of trial.     On January 15, 2002, this Court granted

appellant’s motion to attach trial defense counsel’s sworn

declaration that the recommendation was not served on him until

after the convening authority had taken action in the case.       He

also stated:

      . . . I would have commented on the command judge
      advocate’s selective excerpting of the military
      judge’s clemency recommendation. I would have
      provided the omitted portion of the clemency
      recommendation to the convening authority with a
      request that he thoroughly consider the recommendation
      of the military judge in its entirety and that he
      accordingly suspend MSSR Williams’ bad-conduct
      discharge.

                                 DISCUSSION

      The Government’s contention is that appellant has failed to

make a colorable showing of prejudice under United States v.

Chatman, 46 MJ 321 (1997).       We have consistently held that

“service of the SJA’s recommendation on the accused’s counsel is

a critical part of the accused’s post-trial representation.”

United States v. Mark, 47 MJ 99, 101 (1997)(citing United States


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United States v. Williams, No. 01-0675/NA


v. Moseley 35 MJ 481, 484-85 (CMA 1992)).       Further, we agree

with Judge Gierke’s view espoused in Moseley that

      [t]he service requirement in Article 60(d), Uniform
      Code of Military Justice, 10 USC § 860(d) (1986), and
      RCM 1106(f), Manual for Courts-Martial, United States,
      1984, was intended to incorporate the procedures
      mandated by this Court in United States v. Goode, 1 MJ
      3 (CMA 1975). S.Rep. No. 53, 98th Cong., 1st Sess.
      20-21 (1983); Drafters' Analysis, Manual, supra at
      A21-73.   The purpose of the service requirement
      imposed in Goode was ‘to eliminate delays encountered
      in claims of error in post-trial reviews and the
      exhaustion of appellate resources when such error
      could easily and expeditiously be resolved prior to
      the convening and supervisory authorities' actions.’
      United States v. Hill, 3 MJ 295, 296 (CMA 1977).

Moseley, supra at 486 (concurring in part and dissenting in

part).

      In Chatman, we addressed the question of the standard to be

applied when a staff judge advocate fails to serve on the

defense a copy of an addendum that contains “new matter” to

which an accused has the right to respond.       See RCM 1106(f)(7).

We required an appellant to “demonstrate prejudice by stating

what, if anything, would have been submitted to deny, counter,

or explain the new matter.”       46 MJ at 323 (internal quotations

omitted).    We further indicated that “the threshold should be

low, and if an appellant makes some colorable showing of

possible prejudice, we will give that appellant the benefit of

the doubt and we will not speculate on what the convening

authority might have done if defense counsel had been given an

opportunity to comment.” Id. at 323-24 (internal quotations


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United States v. Williams, No. 01-0675/NA


omitted)(emphasis added).       In United States v. Howard, 47 MJ

104, 107 (1997), we extended this standard to cases involving

failure to serve the original recommendation on defense counsel.

      We accept without more trial defense counsel’s statement in

his declaration that he would have commented on the command

judge advocate’s failure to include the second part of the

military judge’s comments.3       We disagree with the Government that

the omitted part of the military judge’s comments was simply a

repeat of the first part.       In the second part of his comments,

the military judge stated the basis for his personal view that

appellant was worthy of the type of clemency he was

recommending.     These comments indicated that the "nice

testimonials from two pastors and from his mother concerning his

intended desire to do well in the Navy," considered by the

military judge during sentencing, had moved him to make this

particular clemency recommendation.         More importantly, the

second part of the military judge’s comments included his

favorable assessment of appellant’s rehabilitative potential.

Given the numerous offenses with which appellant was originally




3
  Neither the record nor defense counsel’s declaration mentions when counsel
became aware of the fact that the convening authority had already issued his
action by the time the CJAR was received. We remind counsel that RCM
1107(f)(2) allows the convening authority to recall and modify any action
prior to forwarding the record for review.



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United States v. Williams, No. 01-0675/NA


charged,4 the convening authority might logically have given the

on-the-record remarks little weight in the absence of the

military judge’s stated reasons for making them.

      “The essence of post-trial practice is basic fair play—

notice and an opportunity to respond.”          United States v. Leal,

44 MJ 235, 237 (1996).      It certainly would have been within the

convening authority’s discretion to decline the military judge’s

recommendation, even had counsel been provided the opportunity

to comment.    However, appellant had the right to have his

counsel served the recommendation in accordance with RCM

1106(f).    In this case, he also had the attendant right to

respond to the command judge advocate’s failure to include the

military judge’s favorable recommendation in its entirety.               We

hold that appellant was denied these rights when his counsel was

not served the recommendation prior to the convening authority’s

action, and that he has made a “colorable showing” of prejudice.5




4
  In addition to the offenses to which appellant entered pleas of guilty, he
was also charged with five specifications of failure to go, one specification
of disrespect to a chief warrant officer, one specification of disrespect to
petty officers, one specification of disobeying a commissioned officer, one
specification of disobeying a petty officer, two specifications of making
false officials statements, and one specification of communicating a threat.
These offenses were withdrawn without prejudice by the government just before
the military judge entered findings of guilty in accordance with appellant’s
pleas. They were ultimately dismissed by the Government at trial.
5
  We have become increasingly concerned with what we view as a lack of
attention to the post-trial process. For instance, the convening authority’s
action in this case purports to implement appellant’s automatic reduction to
E-1 under Article 58a, UCMJ, 10 USC § 858a. This is curious since appellant
was already at grade E-1 at the time of trial.


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United States v. Williams, No. 01-0675/NA


                                  DECISION

      The decision of the United States Navy-Marine Corps Court

of Criminal Appeals and the action of the convening authority

are set aside.     The record of trial is returned to the Judge

Advocate General of the Navy for remand to a convening authority

for a new post-trial recommendation and action.     Thereafter,

Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867, respectively,

will apply.




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United States v. Williams, No. 01-0675/NA


     CRAWFORD, Chief Judge (dissenting):

     While there must be accountability in eliminating errors as

to the command judge advocate’s (CJA) recommendation, appellant

is required to show a colorable claim of prejudice.     United

States v. Chatman, 46 MJ 321, 323-24 (1997); see also United

States v. Wheelus, 49 MJ 283, 286-87 (1998).     That has not been

done.   Nor is there any chance that appellant will be retained

in the service as a result of a new CJA recommendation and

action by the convening authority.     One only needs to ask

whether the Navy wants to have appellant or a new recruit off

the street in the service.   The answer, based on his offenses,

is obvious.

                               FACTS

     Appellant was an eighteen-year-old sailor with less than a

year of active service at the time of the offenses and was

assigned to the USS ABRAHAM LINCOLN at the Puget Sound Naval

Shipyard, Bremerton, Washington.   Over a four-month period,

appellant was absent without leave from his unit on four

separate occasions.   These absences occurred on May 6-11, June

1-4 and 7-25, and June 28-September 3, 1999.     Appellant offered

no excuses for his absences other that he just did not want to

go to work.   He stayed in the local area during his first three

absences and for a good portion of his last absence.     His last
United States v. Williams, No. 01-0675/NA


unauthorized absence terminated when he turned himself in at the

Great Lakes base in Chicago after traveling through Texas.

       On August 1, 1999, appellant stole $1,500.00 from the

Washington Mutual Bank in Everett, Washington.    He did so by

depositing a forged check into his checking account using the

ATM.    Over the next few days, he withdrew the funds from his

checking account.    He obtained the blank check from Senitria

Larue, whose account at Washington Mutual Bank had been closed.

Appellant forged Senitria Larue’s signature on the check and

made it payable to himself in the amount of $1,500.00.

       Appellant was convicted based on his pleas of guilty.

After announcing the sentence, the military judge made the

following comment:

          I would ask the trial counsel to pass to the
       convening authority the nature and content of the
       accused’s stated desire to have another chance and
       that he’s learned his lessons and that the convening
       authority and the chain of command that knows Seaman
       Recruit Williams take into consideration whether they
       want to defer or suspend any portion of this sentence
       in order to allow him to have a suspended bad-conduct
       discharge and demonstrate that his stated desire to
       continue his enlistment is something that he can pull
       off.
          I say that in light of the nice testimonials from
       two pastors and from his mother concerning his
       intended desire to do well in the Navy, as well as his
       youth, and realizing that hopefully, if he has learned
       from this experience and the brig can perform its
       rehabilitative function, that Seaman Recruit Williams
       may have an opportunity to fulfill that enlistment.




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United States v. Williams, No. 01-0675/NA


     On January 21, 2000, his defense counsel

submitted a request for clemency.     The CJA completed

his recommendation, dated April 19, 2000, and submitted it to

the defense counsel, who did not acknowledge

receipt of the CJA recommendation until May 24, 2000.     Neither

defense counsel nor appellant objected to the convening

authority taking action before acknowledgement of the receipt of

service.   The convening authority took action and approved

appellant’s sentence on May 23, 2000.      The action reflects that

“the record of trial, the results of trial, the defense’s

clemency request dated 21 January 2000, and the Command Judge

Advocate’s recommendation have been considered.”

     The court below found that the convening authority erred by

taking action before the CJA’s recommendation was served on the

detailed defense counsel.   In a footnote to its opinion, the

court below stated:

           The convening authority’s action states that the
           [C]JAR was submitted to the appellant’s defense
           counsel on 1 May 2000. Nonetheless, we choose to
           rely on the date of acknowledgment by the defense
           counsel.

Unpub. op. at 2 n.1.

                              DISCUSSION

     RCM 1106(f)(5) states:   “Counsel for the accused shall be

given 10 days from service of the record of trial under RCM

1104(b) or receipt of the recommendation, whichever is later, in


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United States v. Williams, No. 01-0675/NA


which to submit comments on the recommendation.”     The court

below acknowledged that the convening authority erred by taking

action before the ten days had expired.   I agree.

     Nonetheless, appellant is not entitled to relief unless he

is able to demonstrate prejudice.   The court below found no

prejudice because appellant’s earlier clemency submission of

January 21, 2000, was before the convening authority, and

appellant has failed to show what additional clemency matters he

would have submitted.

     Thus, I cannot conclude that appellant was prejudiced by

the failure of the CJA’s recommendation to include the second

paragraph of the military judge’s clemency recommendation.




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United States v. Williams, No .01-0675/NA

    SULLIVAN, Senior Judge (dissenting):


    I agree with the majority that the convening authority erred

by taking action in this case before defense counsel was served

with the command staff judge advocate’s recommendation.    See

generally United States v. Johnston, 51 MJ 227, 229 (1999).

Nevertheless, I am not convinced that appellant has made a

colorable showing of possible prejudice.    United States v.

Chatman, 46 MJ 321, 323-24 (1997);   see United States v. Schrode,

50 MJ 459 (1999).

    In this regard, I note that all defense clemency materials

were submitted to and considered by the convening authority prior

to his taking action in this case.   Moreover, the command staff

judge advocate in his post-trial review called the convening

authority’s attention to the military’s judge favorable comments

on the suspension of the bad-conduct discharge.    Finally,

although the command staff judge advocate did not repeat verbatim

the military judge’s comments, they were in the record of trial

and, therefore, before the convening authority.


    I further note that defense counsel himself in his earlier

clemency submissions in this case did not reference the military

judge’s post-sentence comments.   Such inaction may suggest error

by the defense counsel at trial; however, appellant did not raise

that issue on this appeal.   Moreover, the omission from

mentioning this matter in the clemency materials may reflect the

defense’s belief that the trial judge’s comments were not that
United States v. Williams, No. 01-0675/NA

helpful.   In all these circumstances, I would affirm on the basis

of harmless error.   See United States v. Kho, 54 MJ 63, 65 (2000)

(no plain error in failure to note military judge’s

recommendation on sentence where clearly not prejudicial under

circumstances of case).




                                 2
