The Coast Guard Court has issued this published opinion, which sets aside a CA’s action due to a deficient SJAR.  United States v. Sanchez, __ M.J. ___, No. 1320 (C.G. Ct. Crim. App. July 29, 2010).  Chief Judge McClelland wrote for a unanimous panel.

The SJAR noted the findings and sentence and the absence of previous convictions, referenced a previous NJP, and listed four negative administrative remarks.  The SJAR failed to note the accused’s length of service, awards, decorations, positive administrative remarks, or evaluations.  The TDC offered no objections or comments.

The Coast Guard Court held that the omission of the accused’s awards and decorations was error and that the error was plain and obvious, since R.C.M. 1106 requires that they be noted in an SJAR.  The court further concluded that where the omitted information included two Coast Guard Achievement medals, two Good Conduct Medals, and a letter of commendation, the omission was prejudicial, thus satisfying all the prongs of a plain error analysis.

8 Responses to “CGCCA issues published opinion ordering new SJAR and CA’s action”

  1. Anonymous says:

    Hmmm…bet it is a hollow victory. Send it back, include the info. and then approve only 3 months, suspending all but 60 days. Relief without relief. Let me hear it defense hacks…

  2. lolol says:

    convenient “administrative” error

  3. Brian the dog says:

    Here is my complaint with the way we currently handle these administrative mistakes: The more the courts correct post trial errors (even obvious ones as in this case), the more the post trial process is turned into an empty ritual.

    The ideal of the SJAR (and pretrial advice) was to have the SJA communicate to the convening authority his legal opinion and advice. While SJAs will state (usually) the required language, I doubt CAs anywhere are ever really getting substantive written advice. The courts have given the SJAs every incentive to eliminate their actual analysis, and state as little as possible. (Actual advice usually being provided orally).

    I, for one, would favor a system in which SJAs could write whatever they wanted, and truly explain why the accused should or should not get relief or clemency. The DC would be free to correct any omissions or not. Any errors not noted by the DC would be waived (which is kind of what the rules says anyways).

    What we have now is a system that requires some effort, but provides worthless advice to the CA; little incentive for DCs to spot error; and meaningless appellate relief. There is countless man-hours spent processing post-trial paperwork (and reviewing it all on appeal), for little gained.

  4. John O'Connor says:

    Agree completely with The Dog.

  5. Tim says:

    Is no one on this case aware of Executive Order 13468 (28 July 2008), which revises 1106(d)? The way I read it, the E.O. eliminates the requirement to summarize the accused’s service record. There was no mention of this in the opinion. In any case, it was dirty for the SJA to include only negative info.

  6. RCM says:

    The Coast Guard got it wrong. R.C.M. 1106(d)(3) was changed in Executive Order 13468-2008, 73 Fed. Reg. 43,827, Annex Section 1 (h)(Jul. 28, 2008), which eliminated R.C.M. 1106(d)(3)(C). There is no requirement for a summary of awards and decorations.

  7. Anon says:

    As one of those who spent countless hours drafting post-trial memos, the worst is when your CA asks a meaningful question on the day before you bust metric (due to a 2 month period of DC or MJ nonavailability), and points out the drivel you gave him/her is the polar opposite of the usual BLUF advice he/she expects. They’re not stupid, and mine was no rubber stamp.

    In these situations, my SJA/DSJA were so intent on avoiding appellate scrutiny that they’d avoid rendering advice at all costs, and so hardened that even a comma’s deviation from the regulatory sample meant heads rolled. We did whatever it took to keep a pristine paper trial and mirror the regs, but hated the stated rationale: “Sir/Ma’am, the law requires we do it this way. I can’t say any more or this process will drag out another 10 days.” My CA hated it too, and our shop lost a lot of credibility in post-trial.

    I took to quietly backbriefing the senior enlisted advisor or unit commander in the cases I felt deserved some clemency or were not slam-dunks, lobbying for an unusually good PTA for an accused, or fighting for that extra sentence in the SJAR to tell the full story. Not exactly our finest hour, and I lost a good amount of sleep over whether we dealt evenhandedly, but at least a few folks caught a break and could move on.

    And it’s confessions like this that make us junior folks glad this site allows anonymous comments. This problem is real, and it’s turning into a sham review.

  8. Anon says:

    “It’s turning into a sham review?” Good grief when was it not a sham review. We move mountains to avoid having the case bounce on a post-trial SJAR error. Then when it does we run around praying it doesn’t again and nobody really gets substantive clemency. Often because there isn’t a form letter for that and we fear the appellate defense will then tear into that one also looking for even more.