                       UNITED STATES, Appellee

                                    v.

                     Matthew K. TRAVIS, Sergeant
                    U.S. Marine Corps, Appellant

                              No. 07-0482

                       Crim. App. No. 200600519

       United States Court of Appeals for the Armed Forces

                        Argued March 10, 2008

                         Decided May 15, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY and RYAN, JJ., joined. BAKER, J.,
filed a separate dissenting opinion.


                                 Counsel


For Appellant: Captain S. Babu Kaza, USMC (argued); Lieutenant
Aimee M. Souders, JAGC, USNR (on brief).

For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN (on brief); Lieutenant David H. Lee,
JAGC, USN.

Military Judge:   D. M. Jones


       This opinion is subject to revision before final publication.
United States v. Travis, No. 07-0482/MC

     Judge ERDMANN delivered the opinion of the court.

     Sergeant Matthew K. Travis was a Marine guard and

supervisor at a detention facility in Iraq.      In conjunction with

other guards, Travis devised a scheme to deal with an unruly

Iraqi detainee by attaching electrical wires to the detainee’s

cage to prevent the detainee from grabbing the cage.      When this

failed to electrify the cage, other guards attached the wires

directly to the detainee’s body.       Pursuant to his pleas, Travis

was found guilty of willful dereliction of duty, attempted

cruelty and maltreatment of an Iraqi national detainee,

conspiracy to commit cruelty and maltreatment of an Iraqi

national detainee, and false official statement.

     He was sentenced to a bad-conduct discharge, confinement

for fifteen months, and reduction to the lowest enlisted grade.

The United States Navy-Marine Corps Court of Criminal Appeals

affirmed the findings but granted sentence relief under Article

66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

866(c) (2000), by reducing the confinement to twelve months.

United States v. Travis, No. NMCCA 200600519, 2007 CCA LEXIS 68,

2007 WL 1701351 (N-M. Ct. Crim. App. Feb. 27, 2007).

     We granted review to determine whether the lower court

erred in finding that Travis was not prejudiced when the staff

judge advocate (SJA) failed to submit clemency matters to the

convening authority prior to action and when the SJA



                                   2
United States v. Travis, No. 07-0482/MC

subsequently did not forward those clemency materials to the

convening authority for over a year.      Because there was a second

action taken by the same convening authority after consideration

of Travis’s clemency submission, we conclude that Travis

suffered no material prejudice.

                             Background

     Post-trial processing of this case involved back and forth

electronic communication between Travis and his defense counsel

who were located at Camp Pendleton, California, and the SJA and

convening authority who were deployed in Iraq.     The SJA

recommendation was completed on September 29, 2004.     On November

8, the recommendation was served on the defense counsel for

comment pursuant to Rule for Courts-Martial (R.C.M.) 1106(f)(1).

On November 17, defense counsel requested an additional twenty-

four hours within which to submit clemency matters because he

had not received a letter from Lieutenant General (LTG) Mattis.

The request was granted.

     On November 22, 2004, defense counsel noted that he was

still waiting on the clemency letter from LTG Mattis.     In an

addendum to the SJA recommendation dated December 1, 2004, the

SJA noted that the defense had been given two extensions of time

up to November 29 to submit clemency matters and no clemency

matters had been received.   Action was taken on December 4, and

no clemency matters were considered by the convening authority.



                                  3
United States v. Travis, No. 07-0482/MC

        Upon reviewing the action on December 9, 2004, defense

counsel noted that there was no reference to consideration of

clemency materials.    In acknowledging receipt of the convening

authority’s action, defense counsel inquired about the clemency

materials.    The SJA responded that no clemency matters had been

received.    In response, on December 13, 2004, the defense was

able to retrieve a copy of an electronic message purporting to

show that Travis’s clemency request and supporting materials had

been sent to the SJA on November 29th.    A copy of this clemency

package was subsequently provided to the SJA.    Upon receipt of

these materials, the SJA notified defense counsel that the

matters were late and that they would not be forwarded to the

convening authority.

        On January 10, 2005, Travis filed a petition for

extraordinary relief in the form of a writ of mandamus with the

Court of Criminal Appeals.    He requested that the Navy-Marine

Corps court order the convening authority to withdraw the action

dated December 4, 2004, and take new action after considering

his clemency submissions.    Travis’s request for extraordinary

relief was denied by the Navy-Marine Corps court on January 13,

2005.

        On November 30, 2005, a second addendum to the SJA

recommendation was prepared.    This addendum recommended that the

convening authority withdraw the prior action because “the



                                   4
United States v. Travis, No. 07-0482/MC

previous Convening Authority’s Action did not note a companion

case” and also recommended that the convening authority consider

the clemency matters that were “submitted by the defense after

the time for submission had expired.”   Pursuant to this

addendum, the same officer who took the initial action on the

case withdrew his previous action and on December 2, 2005, took

a new action approving the sentence as adjudged.   The new action

specifically acknowledged consideration of the defense clemency

submissions.

     When Travis’s case was reviewed by the Court of Criminal

Appeals, that court considered issues of post-trial delay and

the impact of the SJA’s failure to forward clemency matters to

the convening authority.   Travis, 2007 CCA LEXIS 68, at *3, 2007

WL 1701351, at *1.   Concerning the clemency issue, the court

stated, “Based on the record before us we are unable to

determine whether these [clemency] matters were submitted before

or after [the convening authority’s December 4, 2004 action].”

Id. at *5-*6, 2007 WL 1701351, at *2.    The Navy-Marine Corps

court went on to hold that if the clemency matters were received

prior to the December 4, 2004, action there was error, but that

error was cured when the December 2, 2005, action was taken

after consideration of the clemency submissions.   Id. at *6,

2007 WL 1701351, at *2.    Alternatively, the lower court

indicated that if the clemency matters were received after the



                                  5
United States v. Travis, No. 07-0482/MC

December 4, 2004, action, there was no error.      Id.    In either

event, the lower court held that there was no material prejudice

to Travis’s substantial rights.    Id. at *5, 2007 WL 1701351, at

*2.

                            Discussion

      A convicted servicemember has the right to submit matters

to the convening authority that reasonably tend to affect the

decision whether to approve or disapprove any findings of guilt

or to approve, reduce, or disapprove the adjudged sentence.

Article 60(b)(1), UCMJ, 10 U.S.C. § 860(b)(1) (2000); R.C.M.

1105(a), (b).   These matters may be submitted within ten days

after the authenticated record of trial and SJA recommendation

are served on the accused, and additional time may be requested

for good cause shown.   Article 60(b)(1), UCMJ; R.C.M.

1105(c)(1).   “Failure to submit matters within the time

prescribed by this rule shall be deemed a waiver of the right to

submit such matters.”   R.C.M. 1105(d)(1).     A convening authority

must consider matters submitted by the accused.      Article

60(c)(2), UCMJ; R.C.M. 1107(b)(3).

      Under these rules, the threshold determination in this case

is when Travis’s clemency matters were submitted.        However, on

this record the lower court could not determine when the

clemency matters were submitted.       2007 CCA LEXIS 68, at *5-*6,

2007 WL 1701351, at *2.   As a court of law, we lack the



                                   6
United States v. Travis, No. 07-0482/MC

authority to make factual determinations.   See United States v.

Wise, 64 M.J. 468, 470 (C.A.A.F. 2007); United States v. Ginn,

47 M.J. 236, 244-45 (C.A.A.F. 1997); see also United States v.

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

     In terms of when clemency matters are “submitted”, we agree

that “submission” of clemency matters is less formal than

“service” required by other rules in the Manual for Courts-

Martial.1   However, in this case it is not necessary to define

the qualitative subtleties that may or may not distinguish

completed “submission” from completed “service.”   Regardless of

when the defense “submitted” the clemency matters or how long it

took the SJA to forward the clemency package to the convening

authority, if Travis would not be entitled to relief under any

construction of the facts, any alleged error would be harmless.

“‘Whether an error, constitutional or otherwise, was harmless,

is a question of law that we review de novo.’”   United States v.

Hall, 66 M.J. 53, 54 (C.A.A.F. 2008) (quoting United States v.

McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003)).

     We conclude, as did the court below, that Travis has not

suffered any material prejudice to a substantial right.   Article


1
  See, e.g., R.C.M. 602 (service of charges), R.C.M. 702(h)(3)
(service of objections to written interrogatories), R.C.M.
703(e)(2)(D) (service of subpoenas), R.C.M. 905(h)(i) (service
of written motions), R.C.M. 1104(b)(1)(A) (service of
authenticated record of trial), R.C.M. 1104(d)(3) (service of
certificate of correction), and R.C.M. 1106(f)(1) (service of
SJA recommendation).

                                 7
United States v. Travis, No. 07-0482/MC

59(a), UCMJ, 10 U.S.C. § 859(a) (2000).    We cannot and do not

substitute our judgment about the merit of a request for

clemency or the weight to be given any specific clemency

recommendation by a convening authority.   Clemency is a “‘highly

discretionary’” command function of a convening authority.

United States v. Rosenthal, 62 M.J. 261, 263 (C.A.A.F. 2005)

(per curiam) (quoting United States v. Wheelus, 49 M.J. 283, 289

(C.A.A.F. 1998)).    Where a servicemember has been deprived of

full and fair clemency consideration by a convening authority,

we are not reluctant to return a case for an otherwise proper

review and action.   See, e.g., id.   In this case, however, we

have the benefit of knowing what the results of a proper

clemency consideration would have yielded, and a remand for a

new action is not required.

     Major General (MG) Natonski took action on both December 4,

2004, and December 2, 2005.   The offenses in this case are

serious.   Travis’s conduct reflects disdain for the human

dignity of detainees under American control and custody, as well

as an abandonment of his supervisory role as a noncommissioned

officer.   The record reflects that at the time of the second

action, MG Natonski had before him all the required documents

and submissions, including Travis’s complete clemency package

with LTG Mattis’s clemency letter.    In taking this action, MG

Natonski stated that he “considered the results of trial, the



                                  8
United States v. Travis, No. 07-0482/MC

clemency submitted by the defense counsel on behalf of the

accused in accordance with Rule for Courts-Martial 1105, MCM,

(2002 Ed.), the Staff Judge Advocate’s Recommendation and the

entire record of trial.”   With all that in mind, MG Natonski

approved the sentence as adjudged.

     There is nothing to suggest that in taking the second

action MG Natonski did not perform his duty as convening

authority fully, fairly, and in accordance with law.   This

action demonstrates clearly and convincingly that even if

Travis’s clemency materials had been considered at the time of

the initial action, he would have been afforded no clemency.    In

assessing prejudice, we also take into account that the Court of

Criminal Appeals reduced the period of confinement when it

granted sentence relief under Article 66(c), UCMJ, to address

post-trial delay.   Travis, 2007 CCA LEXIS 68, at *8, 2007 WL

1701351, at *3.   We conclude, therefore, that any possible error

relating to the post-trial processing of clemency materials in

this case was harmless.

     We note that although the defense counsel and the SJA were

acting in good faith, simple steps could have been taken to

prevent this situation from arising in the first place.    We

recognize that the distance between Camp Pendleton, California,

and Iraq is substantial, and that both distance and combat

operations compound the usual difficulties of communication and



                                 9
United States v. Travis, No. 07-0482/MC

post-trial processing.   So too should the parties recognize that

they are functioning in a more complex environment and, as a

result, devote more attention to detail.

     Defense counsel should take reasonable steps to guarantee

that clemency submissions have in fact been received under any

circumstances but particularly where communications are

problematic.   An SJA should be attentive to whether the defense

intends to submit clemency matters and, where there are clear

indications that the defense intends to submit matters, the SJA

need not rush to action in the absence of the anticipated

clemency material -– particularly where communications are

problematic.   We urge a commonsense approach to guarantee a

convicted servicemember gets full and fair clemency

consideration and that convening authorities have everything

they need to prudently exercise their unique clemency function

at action.

                             Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                10
United States v. Travis, No. 07-0482/MC


     BAKER, Judge (dissenting):

     Although Appellant’s conduct was egregious, I do not

share the majority’s confidence that the second convening

authority’s action remedied any error or potential

prejudice resulting from the convening authority’s failure,

during his first review, to consider the letter from

Lieutenant General (LtG) J. N. Mattis.

     First, the letter in question did not recommend

clemency generally, or negate the seriousness of the

offenses at issue.   Rather, the recommendation was limited

to a recommendation for confinement relief on behalf of a

member of his command during combat operations in Iraq.

     Second, the letter was from LtG Mattis.    While the

text of the letter is relatively perfunctory, its

recommendation is not.   Moreover, the letter is from the

Marine ground combat commander who led the 1st Marine

Division’s push to Baghdad, and thus is a member of the

Marine Corps’ “warrior elite.”    (His successor in command

at the First Marine Division would, of course, know this,

as would any other Marine).   During my tenure on the Court,

I have not seen a clemency letter from a general, let alone

one from a general with the combat stature of LtG Mattis.

In the context of the Marine Corps, a letter from a warrior

general to a subordinate commander might well have resulted
United States v. Travis, No. 07-0482/MC


in some measure of confinement clemency, at least on the

order of symbolic relief.

     Third, the second convening authority’s action could

not have addressed any potential prejudice resulting from

the delay in submitting the Mattis letter because at the

time of the second action Appellant had already served the

duration of his confinement.   Also, LtG Mattis’s

recommendation for clemency addressed confinement relief

alone.   Thus, we do not “have the benefit of knowing what

the results of a proper clemency consideration would have

yielded.”    United States v. Travis, 66 M.J. __ (8)

(C.A.A.F. 2008).

     Nor is it possible in such a context to conclude, as

does the majority, that Appellant’s clemency request

received full and fair consideration.   The majority’s

analysis might ordinarily work as a matter of legal logic,

that is, a second action might normally cure the error in

the first action in which no relief was given.   However, it

falls short when considered in the actual military context

presented.   LtG Mattis recommended confinement clemency for

a combat veteran of battles the general himself directed.

A convening authority who acts without benefit of such a

recommendation cannot be said to have acted on the “full”




                               2
United States v. Travis, No. 07-0482/MC


package.   Neither is the review “fair,” if the letter is

subsequently considered after its recommendation is moot.

     As a result, I would grant meaningful confinement

relief and respectfully dissent.




                              3
