The Coast Guard Court’s original opinion in United States v. Sanchez, No. 1320, cited and relied on a portion of R.C.M. 1106 that was repealed in 2008 (but that remains in the MCM we all use on a daily basis even now).  Two of our readers pointed out the mistake (good show, TIm and RCM!) and the Coast Guard Court then withdrew its original Sanchez opinion.

The Coast Guard Court is now back with a new published Sanchez opinion, reaching the same result as the first.  United States v. Sanchez, __ M.J. __, No. 1320 (C.G. Ct. Crim. App. Nov. 19, 2010).   While the President removed R.C.M. 1106(d)(3)’s requirement that the SJAR “include length and character of service, awards and decorations received, and any records of non-judicial punishment and previous convictions,” the Coast Guard Court held that if the SJAR provides a summary of the accused’s service record, it must be balanced.   

Despite the absence of an objection from the trial defense counsel, the Coast Guard Court held that the unbalanced SJAR was obvious error that prejudiced the accused, thus requring a new SJAR and action.  The court reasoned that “an unbalanced selection from an accused’s service record, containing considerable negative information but none of the more recent positive information,” isn’t accurate.  Sanchez, No. 1320, slip op. at 4-5.  The court held:

If service record information is included in the SJAR, it must provide a fair portrayal, not a misleading one.  . . .  [T]he presentation of negative information accompanied by the omission of significant positive information, substantially misrepresenting the character of Appellant’s service, constituted error.

Id., slip op. at 5.

The Coast Guard Court also held, contrary to its previous decision in United States v. Thomas, 39 M.J. 1078 (C.G.C.M.R. 1994), that an omission of a non-combat decoration can rise to the level of plain error.  Sanchez, No. 1320, slip op. at 6.  The Coast Guard Court found such plain error in this case, where the omitted information included a Coast Guard Achievement Medal and a letter of commendation.

7 Responses to “CGCCA rejects SJAR painting unbalanced portrait of accused’s record”

  1. Anonymous says:

    Footnote 1 is classic CGCCA. “Yeah, we cited incorrect law, but the parties did it too. You don’t expect us to do real research on this law stuff, do you?”

  2. Anon says:

    Complete fishing expedition to save face by the CGCCA (also to save face of the future TJAG sitting on the court). I like how they just reach down and find an “unbalanced” SJAR. Where in the RCM does it say the words “balanced”? It doesn’t.

  3. Bill C says:

    Undoubtedly after receiving the “balanced” SJAR, the CA will grant considerable clemency relief. Not.

  4. Brien Le Chien says:

    This again leads us down the path towards even more meaningless SJARs. If an SJAR has to be ballanced, and ommitting an achievement medal (the lowest medal) is not just unballanced, but ammounts to plain error, what SJA in their right mind would ever write anything more than the absolute minimum.

    In the effort to be “ballanced” and “fair” we are making the SJAR meaningless. This pushes the SJAs to give their advice orally (and not subject to review) which is certainly not in any accused’s best interest.

  5. who's your daddy says:

    Silly opinion that is detached from reality. The accused, with the assistance of counsel, has ample opportunity to present as much positive records and letters etc… that are far more informative than SRB/OQRs. Hard to take our system serious when there is so little respect and expectation from the attorneys that practice within it. Bill C is mostly right for the lion-share of cases, but setting aside that viewpoint, it makes more sense to rely on the defense counsel to do their job via 1105/06 matters. This is an effective mechanism to paint the accused in a positive light.

  6. John O'Connor says:

    Agree 100%. Good post.

  7. Brien Le Chien says:

    Agree. Although I find it difficult to articulate well, I think many of the CCA/CAAF silly/paternalistic oppinions stem from their disinclination to test for IAC.

    DC performs an aspect of his job poorly. This creates a perception of unfairness, which our system is VERY sensitive to. But, the CCA can’t test for IAC because the Strickland test is a very high bar. As a result, we get opinions like this. The “unfairness” is corrected (in appearance only – see previous post), but only by skewing the system.