                           UNITED STATES, Appellee

                                           v.

                          Andre E. K. LOWE, Airman
                            U.S. Navy, Appellant


                                    No. 02-0493
                          Crim. App. No. 200000956


       United States Court of Appeals for the Armed Forces

                            Argued March 11, 2003

                             Decided June 5, 2003

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



                                       Counsel

For Appellant: Major Anthony C. Williams, USMC (argued); Major
   Eric P. Gifford, USMC (on brief).

For Appellee: Lieutenant Lars C. Johnson, JAGC, USNR (argued);
   Colonel Rose M. Favors, USMC (on brief).




Military Judge: D. M. White



        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Lowe, 02-0493/NA


      Judge BAKER delivered the opinion of the Court.

      In accordance with his pleas, Appellant was convicted by a

military judge of unauthorized absence and missing movement in

violation of Articles 86 and 87, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 886 and 887 (2000),

respectively.     The adjudged and approved sentence included

confinement for 90 days, forfeiture of $650 pay per month for

three months, and a bad-conduct discharge.       After Appellant’s

case was docketed with the Navy-Marine Corps Court of Criminal

Appeals, but before submission of any assignments of error,

appellate defense counsel moved the court for relief from post-

trial processing errors.       Specifically, counsel asserted that

the convening authority took action before the staff judge

advocate’s recommendation (SJAR) was properly served on trial

defense counsel pursuant to Rule for Courts-Martial 1106(f)

[hereinafter R.C.M.].      This motion was denied and the case was

submitted for review without specific assignments of error.

Shortly afterwards, the Court of Criminal Appeals affirmed the

findings and sentence in a short-form opinion.       United States v.

Lowe, NMCM No. 200000956 (N-M. Ct. Crim. App. August 30, 2001).

Thereafter, Appellant filed a motion for reconsideration of the

lower court’s decision.

      In conjunction with this motion, Appellant moved to attach

certain documentation regarding a gunshot wound he received


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United States v. Lowe, 02-0493/NA


after his court-martial while awaiting discharge in the

Transient Personnel Unit.       Appellant’s motion to supplement the

record with additional documentation was granted, but the motion

for reconsideration was ultimately denied.           We granted review of

the issue regarding the failure to serve the defense counsel

with the SJAR.

      Included with this documentation supporting the motion for

reconsideration is a naval message with a date-time group of

211330Z Jan 00 entitled, “Violent Crime Report - Assault With a

Deadly Weapon.”     This report states, “Approx. 0200L, 21Jan00

victim was outside the Golden Grill Mongolian Barbecue (a local

night club) . . . and an argument occurred.           The suspect pulled

a gun and shot the victim in the right arm.”1           An entry in

Appellant’s medical record states that he “will need very

aggressive therapy to restore his motion . . . . His long-term

prognosis is uncertain based on his healing and motion.”              A

letter from Appellant’s mother to the Navy-Marine Corps

Appellate Review Activity expressed concerns about her ability

to provide for her son’s medical care following discharge, and

she requested additional information on “the differences

[between] a Bad-Conduct Discharge and a Dishonorable Discharge,

including benefits and rights.”


1
  There is no indication in the appellate record of an investigation into the
shooting, or that Appellant was charged with any misconduct occurring in
conjunction with the shooting.


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United States v. Lowe, 02-0493/NA


                                     DISCUSSION

      Before this Court, Appellant renews his request for a new

post-trial review because his trial defense counsel was not

served with the SJAR prior to the convening authority’s action

pursuant to R.C.M. 1106(f).         As a result, Appellant argues, “the

convening authority should have been apprised of the significant

effect a bad-conduct discharge would have on Appellant’s ability

to receive medical care for an injury that occurred while he was

on active duty.”

      The Government argues that Appellant, in effect, waived any

objection to the Government’s failure to comply with R.C.M.

1106(f).    First, according to the Government, Appellant failed

to submit information concerning his physical condition for the

convening authority’s consideration despite four and a half

months to do so.     Second, citing R.C.M. 1107(f)(2), the

Government argues that Appellant could have submitted pertinent

materials after the convening authority acted and then requested

that the convening authority recall and modify his action.        The

Government further asserts that the record is devoid of any

evidence suggesting Appellant would have submitted material

concerning his physical condition to the convening authority.

Thus, Appellant has not shown any prejudice.

      The Government’s first argument is without merit.

Rule for Courts-Martial 1106(f)(1) states:


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United States v. Lowe, 02-0493/NA


                  Service of recommendation on defense
                  counsel and accused. Before forwarding
                  the recommendation and the record of
                  trial to the convening authority for
                  action under R.C.M. 1107, the staff judge
                  advocate or legal officer shall cause a
                  copy of the recommendation to be served
                  on counsel for the accused.

The text is plain.      The SJAR is required to be served on trial

defense counsel before the convening authority takes action.

This affords the accused an opportunity to communicate with the

convening authority on the question of clemency and other post-

trial matters at the same time the Government is heard.                In this

manner, the convening authority has the benefit of information

received through the adversarial process before he or she acts.

Moreover, Article 60, UCMJ, 10 U.S.C. § 860 (2000), provides the

accused the right to submit matters for the convening

authority’s consideration “within 10 days after the accused has

been given an authenticated record of trial and, if applicable,

the recommendation of the staff judge advocate[.]”2            Thus, the

fact that Appellant may have had time prior to service of the

recommendation is of little moment as long as the statute

provided him a period of time, as a matter of right, to submit

matters related to clemency after the recommendation was served

upon him.




2
  This statutory provision is implemented in Rule for Courts-Martial
1105(c)(1).


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United States v. Lowe, 02-0493/NA


      In Appellant’s case, the parties agree that the convening

authority took action on Appellant’s case before the SJAR was

served on trial defense counsel.        The SJAR is dated April 19.

The convening authority’s action is dated May 16.        The convening

authority’s action indicates that a copy of the SJAR was served

on trial defense counsel on April 28; however, trial defense

counsel’s signed acknowledgment of receipt of the SJAR is dated

June 6, three weeks after the convening authority’s action.

      In United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002), we

again recognized that while a convening authority has broad

discretion whether or not to grant clemency, R.C.M. 1106(f)

gives the accused a right to be served with the SJAR in a timely

manner.    In the wake of Williams, the Government has not

persuaded us that so long as an accused could have been heard

before or after the convening authority acted, he waives

objection to a violation of R.C.M. 1106(f) for having failed to

do so.    The opportunity to be heard before or after the

convening authority considers his action on the case is simply

not qualitatively the same as being heard at the time a

convening authority takes action, anymore than the right to seek

reconsideration of an appellate opinion is qualitatively the

same as being heard on the initial appeal.        “The essence of

post-trial practice is basic fair play -- notice and an




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United States v. Lowe, 02-0493/NA


opportunity to respond.”       United States v. Leal, 44 M.J. 235,

237 (C.A.A.F. 1996).

      The Government having not complied with R.C.M. 1106(f), the

outcome in Appellant’s case hinges on whether Appellant has made

a colorable showing of possible prejudice.

      In United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997), a

case involving new matter contained in the SJA’s addendum

without notice to defense counsel, we required an appellant to

not only demonstrate a lack of prior notice, but also to

“demonstrate prejudice by stating what, if anything, would have

been submitted to deny, counter, or explain the new matter.”

Id. at 323 (internal quotations omitted).       In light of the

discretionary nature of post-trial review, 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

(emphasis added)(internal quotations omitted).       In United States

v. Howard, 47 M.J. 104, 107 (C.A.A.F. 1997), we extended this

standard to cases involving the failure to serve the SJAR on

defense counsel.

      We believe Appellant has met this burden.      The Court of

Criminal Appeals admitted into the appellate record


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United States v. Lowe, 02-0493/NA


documentation regarding Appellant’s gunshot wound.       It is clear

from these documents that Appellant would have sought the

opportunity to inform the convening authority of his injury.

      We reject the Government’s contention at oral argument that

Appellant’s presence and subsequent injury at a bar at 1:00 a.m.

alone militate a conclusion that the convening authority would

not have considered clemency.       By definition, assessments of

prejudice during the clemency process are inherently

speculative.    Prejudice, in a case involving clemency, can only

address possibilities in the context of an inherently

discretionary act.      Therefore, the question for this Court and

the Court of Criminal Appeals is not whether we, individually or

collectively, would have granted clemency to Appellant, but

whether Appellant had a fair opportunity to be heard on clemency

before a convening authority, vested with discretion, acting in

his case.    Where an appellant makes a colorable showing that he

was denied the opportunity to put before the convening authority

matters that could have altered the outcome, this Court and the

courts of criminal appeals will not speculate as to what the

convening authority would have done.       United States v. Anderson,

53 M.J. 374, 378 (C.A.A.F. 2000).

      Finally, the Government is, of course, correct that

R.C.M. 1107(f)(2) allows the convening authority to recall

and modify his action prior to forwarding the record for


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United States v. Lowe, 02-0493/NA


review pursuant to Article 66, UCMJ, 10 U.S.C. § 866

(2000).   However, as we reminded in Williams, this is a

rule that permits the Government as well as an accused to

seek modification of an action.         Where there is a failure

to comply with R.C.M. 1106(f), a more expeditious course

would be to recall and modify the action rather than resort

to three years of appellate litigation.         The former would

appear to be more in keeping with principles of judicial

economy and military economy of force.         Again, we reiterate

the view espoused in United States v. Hill, 3 M.J. 295, 296

(C.M.A. 1977), that the purpose of the service requirement

imposed in United States v. Goode, 1 M.J. 3 (C.M.A. 1975),

and now embodied in R.C.M. 1106(f)(1), 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.”

                                    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,




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United States v. Lowe, 02-0493/NA


Article 66 and Article 67, UCMJ, 10 U.S.C. § 867 (2000),

respectively, will apply.




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United States v. Lowe, No. 02-0493/NA


     CRAWFORD, Chief Judge (dissenting):

     I, too, am troubled by sloppy post-trial practice that this

Court has seen all too frequently.    In United States v. Johnson-

Saunders, 48 M.J. 74, 76 (C.A.A.F. 1999), I noted a number of

options available to prevent sloppy practice.

          First, the Clerks of the Courts of Criminal
          Appeals could return records of trial to
          convening authorities if post-trial errors are
          noted. Second, the Courts of Criminal Appeals
          could take corrective action when necessary.
          Most importantly, the Judge Advocate General (or
          equivalent), or his or her designee, could track
          these errors and note who was serving as [the
          Staff Judge Advocate (SJA)] when the error
          occurred. This information then could be
          disseminated to the SJA or other appropriate
          individuals, including those who rate the SJA.
          Where a particular jurisdiction has too many
          errors, appropriate remedial action could be
          taken. This approach may be the most effective
          way to prevent continued errors in the post-trial
          phase. By the time a case reaches this Court,
          both the SJA and the convening authority have
          usually moved on to different assignments.

     Despite my concerns, when a case such as this is resolved

in the manner chosen by the majority, I have to ask what is left

of Article 59(a), Uniform Code of Military Justice, 10 U.S.C.

§ 859(a) (2000)?    Article 59(a) states:

     A finding or sentence of court-martial may not be held
     incorrect on the ground of an error of law unless the
     error materially prejudices the substantial rights of
     the accused.

(Emphasis added.)    We have held that an appellant must make a

colorable showing of possible prejudice under Article 59(a).
United States v. Lowe, No. 02-0493/NA


United States v. Chatman, 46 M.J. 321, 324 (C.A.A.F. 1997).

However, that does not mean a colorable showing in a vacuum.      On

the contrary, it means a colorable showing of Article 59(a)

prejudice.   More is required than merely raising any matter

affecting Appellant that was unknown to the convening authority

at the time of the review and action.

     Although we have said that we as a Court will not speculate

as to what a convening authority may do with new information,

our role is not to sit as “potted plants” either.    In

determining whether Appellant has met his burden of

demonstrating a colorable showing of prejudice under Article

59(a), we should conduct a reasoned analysis based upon our

experience and independent judgment.    By not doing so, I fear

that we have eviscerated Article 59(a) and effectively

established a rote, per se reversal rule anytime an appellant

raises any matter that he or she might have brought to the

convening authority’s attention post-trial.    Thus, the result

reached by the majority raises for me two troubling questions:

First, do we as judges have any role in exercising our

discretion to analyze and assess Article 59(a) prejudice based

upon our experience and independent judgment?    If not, does

Article 59(a) mean anything anymore in the post-trial area?

     In exercising my experience and independent judgment to

interpret Article 59(a), I conclude that the facts of this case


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United States v. Lowe, No. 02-0493/NA


clearly demonstrate Appellant did not suffer prejudice under

Article 59(a) by the post-trial error.   Appellant was anything

but a stellar sailor.   He missed movements on March 1, 4, 9, and

16, 1999.   He subsequently pleaded guilty to absence without

leave (AWOL) from February 23 to October 19, 1999, with the

absence terminated by a surrender rather than an apprehension.

The convening authority agreed to change the initial charge of

AWOL terminated by an apprehension to AWOL truncated by

suspension, consistent with Appellant’s pleas.   Appellant also

had a summary court-martial conviction on June 4, 1998, for AWOL

between April 9-May 4, 1998; missing movement on April 13, 1998;

AWOL between May 14-15, 1998; and AWOL between May 18-20, 1998.

     At this time, the remedy Appellant seeks is a new convening

authority review and action, undoubtedly hoping to set aside the

punitive discharge.   But in addition to Appellant’s poor

disciplinary record, his own actions indicate he does not want

to remain in the service.   Therefore, I conclude that he has

failed in his burden to demonstrate that he was prejudiced under

Article 59(a) by the SJA’s error in this case.

     This is certainly not the first time that, contrary to the

majority and after exercising my independent judgment and

analysis, I have concluded that an appellant has failed to meet

his burden of demonstrating a colorable showing of prejudice

under Article 59(a) and that, therefore, no reasonable convening


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United States v. Lowe, No. 02-0493/NA


authority would set aside the punitive discharge.   Numerous

cases like this have been returned for a new review and action

by a majority of the Court over the years and no favorable

convening authority actions have been taken.   See, e.g., United

States v. Johnston, 51 M.J. 227, 230 (C.A.A.F. 1999)(Crawford,

J., dissenting); United States v. Carnley, 46 M.J. 401, 401-02

(C.A.A.F. 1997)(summary disposition); United States v. Catalani,

46 M.J. 325, 330 (C.A.A.F. 1997)(Crawford, J., dissenting);

United States v. Parks, 46 M.J. 114 (C.A.A.F. 1996)(summary

disposition); United States v. Edwards, 45 M.J. 114, 117

(C.A.A.F. 1996)(Crawford, J., dissenting); United States v.

Tise, 43 M.J. 446, 446-47 (C.A.A.F. 1995)(summary disposition);

United States v. Dresen, 43 M.J. 372 (C.A.A.F. 1995)(summary

disposition); United States v. Dickey, 43 M.J. 170, 170-71

(C.A.A.F. 1995)(summary disposition); United States v. Williams,

43 M.J. 149 (C.A.A.F. 1995)(summary disposition).




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