When to Act?
When to act? (see appeals)
- Cannot act before RCM 1105(c) time periods have expired or submissions have been waived.
- United States v. Lowe , 58 M.J. 261 (C.A.A.F. 2003). Prejudicial error for the CA to act on the case prior to service of the SJAR on the appellant’s defense counsel as required by RCM 1106(f)(1). The plain language of RCM 1106(f)(1) as well as Article 60, UCMJ establish, as a matter of right, the requirement for service of the SJAR prior to action. The court noted: 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 opportunity to respond.” United States v. Leal , 44 M.J. 235, 237 (C.A.A.F. 1996). Id . at 263. The appellant established some “colorable showing of possible prejudice” by showing that he was denied the opportunity to advise the CA of his gunshot wound and his future prognosis. Finally, the court provided some common sense guidance to military practitioners: Where there is a failure to comply with RCM 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. Id . at 264.