Waiver rules. The accused may waive the right to make a submission under RCM 1105 by:
- Failing to make a timely submission.
- United States v. Maners , 37 M.J. 966 (A.C.M.R. 1993). CA not required to consider late submission, but may do so with view toward recalling and modifying earlier action.
- But see United States v. Carmack , 37 M.J. 765 (A.C.M.R. 1993). Government “stuck and left holding the bag” when defense makes weak or tardy submission, even though no error or haste on part of the government.
- United States v. Doughman , 57 M.J. 653 (N-M. Ct. Crim. App. 2002). Failure to submit matters in a timely manner constitutes a waiver of the right to submit matters. Article 60, UCMJ, 10 U.S.C. § 860, affords an accused the right to submit matters for the convening authority’s consideration, prior to the convening authority taking action on the case . . . . With this statutory right . . . also comes a responsibility: to submit matters in a timely fashion. Both Article 60, UCMJ, and RCM 1105 clearly require that matters in clemency be submitted within 10 days of the service of the record of trial or the staff judge advocate’s recommendation (SJAR), whichever is later, unless an extension is sought or granted. Id . at 654. Held: absent evidence of an approved extension, the appellant waived the right to submit matters. Despite finding waiver, a review of the record revealed no prejudice since the appellant’s submissions were in the proper place in the record and the action post-dated the appellant’s submission. Citing United States v. Stephens , 56 M.J. 391 (C.A.A.F. 2002), the court noted that nothing requires the CA to list everything considered prior to taking action; in the absence of evidence to the contrary, the presumption is that the CA considered clemency matters submitted by the appellant prior to taking action.
- By making a partial submission without expressly reserving in writing the right tosubmit additional matters. United States v. Scott , 39 M.J. 769 (A.C.M.R. 1994).
- Filing an express, written waiver.
- Being AWOL so that service of the ROT on the accused is impossible and no counselis qualified or available under RCM 1106(f)(2) for service of the ROT. This circumstance only waives the right of submission during the ten day period after service of the ROT.
- United States v. Travis , 66 M.J. 301 (C.A.A.F. 2008). Defense requested two shortdelays after the initial ten day response period to gather a letter from LtGen Mattis (now Gen Mattis, Commander, USCENTCOM). Addendum served and three days later, CA took action. Defense submitted letter from LtGen Mattis; filed writ to NMCCA claiming prejudice because no clemency matters were considered by CA. Denied. The CAAF held that there was no material prejudice to the appellant because CA purported to withdraw his action later, and approve the sentence as adjudged after considering the letter from LtGen Mattis. Note: CA had no authority to withdraw his first action because case had been forwarded to NMCCA. Also, because SJA was in Iraq and defense counsel was at Camp Pendleton, much of this was communication related. Take affirmative action to ensure matters are received before action taken.
- United States v. Rosenthal , 62 M.J. 261 (C.A.A.F. 2005). Waiver of submission ofmatters in first post-trial process does not automatically mean appellant waives submission of matters in second or subsequent post-trial process. Appellant must be afforded the opportunity to submit matters.
Submission of matters contrary to client’s directive. United States v. Williams , 57 M.J. 581(N-M. Ct. Crim. App. 2002). Error for the defense counsel to submit a Memorandum for Record that documented his advice to his client and his client’s decision not to submit clemency matters; however, the appellant suffered no harm as a result of the error. See also United States v. Blunk , 37 C.M.R. 422 (C.M.A. 1967).