Another addendum sjar non-service grant

CAAF granted review today in United States v. Jones, __ M.J. ___, No. 07-0738/AF (C.A.A.F. Nov. 26, 2007), on the following issue: "WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS 'NEW MATTER' NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE." But CAAF directed that no briefs be filed.

The Air Force Court's unpublished opinion decision gives this account of the facts giving rise to the issue:

In response [to the SJAR], the appellant submitted a clemency package which, in addition to numerous other attachments, included letters from the appellant and his trial defense counsel. In these letters, the appellant and his counsel asked the convening authority to disapprove the bad-conduct discharge or in the alternative, set aside the guilty finding for Charge III, Specification 3. The reason for the request was based upon the following: the victim was the aggressor; the appellant had been
rehabilitated in confinement; and the statements made by the military judge on the record. The clemency petition from the trial defense counsel referenced a statement made by the military judge, in which the military judge indicated the sentence in this case had been a very difficult decision for him to make. . . .

The addendum to the SJAR addressed the defense request for clemency. . . . In the fourth paragraph of the addendum, the SJA made the following statement:

I recommend against granting [the appellant's] clemency request. A punitive discharge is appropriate for the offense [sic] for which the accused was convicted. The offenses involved sexual acts with a minor. Despite [the appellant's] characterization of the victim as the aggressor, he was the adult in this relationship. The judge considered the defense evidence and decided a bad conduct discharge is appropriate in this case, and I concur. . . .

United States v. Jones, ACM S31078 (A.F. Ct. Crim. App. May 30, 2007) (footnotes omitted).

The Air Force Court concluded that the Addendum SJAR didn't contain new matter and that even if it did, the result would have been the same even if it had been served on the accused.

But wouldn't it really have been a lot better for the Air Force had the SJA simply served the Addendum SJAR on the defense and provided an opportunity to respond if the defense so desired?