UNITED STATES, Appellee, v. Specialist Michael S. GARZA, United States Army, Appellant, 61 M.J. 799

OPINION OF THE COURT ON RECONSIDERATION MERCK, Senior Judge: A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of unlawful entry and indecent assault, in violation of

Article 134, Uniform Code of Military Justice, 18 U.S.C. § 934 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to Private El. Pursuant to a pretrial agreement, the convening authority approved only so much of the adjudged sentence as provides for a bad-conduct discharge, confinement for nine months, and reduction to Private El. On 16 June 2004, this court set aside the action of the original convening authority and ordered a new staff judge advocate recommendation (SJAR) and action. United States v. Garza, ARMY 20030760 (Army Ct.Crim.App. 16 June 2004) (unpub.). Pursuant to

Article 66(e), UCMJ, 10 U.S.C. § 866(e), The Judge Advocate General returned the case to a new convening authority with direction to act in accordance with our decision. The convening authority signed a new action on 3 December 2004. The new action did not include any reference to the bad-conduct discharge. The case is before us for further review pursuant to

Article 66, UCMJ. On further review, a panel of this court initially affirmed the approved findings and sentence (which did not include the bad-conduct discharge). United States v. Garza, ARMY 20030760 (Army Ct.Crim.App. 18 Mar. 2005) (unpub.). The government requested en banc reconsideration of the court’s memorandum opinion on further review. On 23 August 2005, this court granted the government’s motion for reconsideration en banc.

FACTS In the SJAR, dated 22 October 2004, the staff judge advocate (SJA) stated: I recommend you approve only so much of the sentence as provides for a bad-conduct discharge, confinement for nine months, and reduction to private El. The automatic forfeiture of all pay and allowances required by

Article 58b, UCMJ[, 10 U.S.C. § 858b], was deferred effective 12 August 2003 until the date of action, waived effective 12 August 2003 until 21 November 2003, and paid to the accused’s spouse. The accused should be credited with 10 days of confinement against the sentence to confinement. The sentence to confinement has been served. An action to accomplish this is located at the signature tab.

The defense submission to the convening authority under Rule for Courts-Martial [hereinafter R.C.M.] 1105, dated 23 November 2004, requested that the convening authority “disapprove the Bad-Conduct Discharge.” The SJA’s 3 December 2004 addendum states that the SJA disagrees with the defense request for clemency and adheres to his 22 October 2004 recommendation.

The SJA’s addendum repeats the same recommendation language as contained within his SJAR and concludes that “[a]n action to accomplish [this recommendation is] located at the signature tab (TAB A).” The new convening authority’s action, dated 3 December 2004, states: A recommendation having been received pursuant to Rule for Courts-Martial 1106, the following is my action on the record of trial: having considered the Recommendation of the Staff Judge Advocate dated 22 October 2004, the addendum thereto, the Record of Trial, and all matters submitted by defense counsel, only so much of the sentence as provides for confinement for nine months, and reduction to [Pjrivate El is approved and will be executed.

The automatic forfeiture of all pay and allowances required by

Article 58b, UCMJ, was deferred effective 12 August 2003 until the date of action, waived effective 12 August 2003 until 21 November 2003, and paid to the accused’s spouse. The accused is credited with 10 days of confinement against the sentence to confinement. The sentence to confinement has been served. The action was published in General Court-Martial Order Number 218, dated 3 December 2004. The record was again received by this court on 30 December 2004 for further review pursuant to

Article 66, UCMJ. On 12 January 2005, appellate defense counsel filed a “Response to Court Order Dated 11 January 2005 on Behalf of Appellant.” In a footnote, appellate defense counsel asserted error in the addendum to the SJAR, but asserted no prejudice “in light of the convening authority’s disapproval of the bad-conduct discharge.” On 21 January 2005, appellate government counsel filed a Brief on Behalf of Appellee asserting that the 3 December 2004 action by the convening authority contained a clerical error and that the bad-conduct discharge should be approved.

In support of this assertion, appellate government counsel moved to attach to the record an affidavit from the convening authority who took action on appellant’s case on 3 December 2004. The affidavit, dated 13 January 2005, stated, inter alia: 3. I was advised by the Staff Judge Advocate to approve only so much of the sentence as provide[s] for a bad[-] conduct discharge, confinement for nine months, and reduction to [Private] El. 4.

In signing the action in this case, it was my intent to accept the advice of the Staff Judge Advocate and approve only so much of the sentence as provided for a bad[-]conduet discharge, confinement for nine months, and reduction to [Private] El. 5. The language pertaining to the bad[-]conduct discharge was inadvertently removed from the action as the result of a clerical error. My intent in signing the action was to approve every aspect of the punishment in the Staff Judge Advocate’s recommendation — including the bad[-]conduct discharge.

Appellant opposed the motion to attach the affidavit to the record, urging this court to disregard the convening authority’s affidavit because it is “wholly self-serving and irrelevant” and “unnecessary.”. Appellant claims the affidavit is an attempt on the part of the convening authority to modify his previous action. A panel of this court originally denied the government motion to attach the affidavit and affirmed the sentence approved on the face of the action signed by the convening authority.

Upon granting the government’s motion for reconsideration en banc, the court also reconsidered and granted the government’s motion to attach the affidavit of the convening authority to the record. LAW Rule for Courts-Martial 1107 provides several avenues for modifying or correcting an action taken by a convening authority. Rule for Courts-Martial 1107(f)(2) defines the circumstances in which the convening authority can modify an action. First, he may “recall and modify [his action] at any time before it has been published or before the accused has been officially notified.” R.C.M. 1107(f)(2).

Second, he may “recall and modify any action at any time prior to forwarding the record for review, as long as the modification does not result in action less favorable to the accused than the earlier action.” Id. Third, in the case of a special court-martial, the convening authority can recall and correct “an illegal, erroneous, incomplete, or ambiguous action at any time before completion of review under R.C.M. 1112, as long as the correction does not result in action less favorable to the accused than the earlier action.” Id.

Finally, “[w]hen so directed by a higher reviewing authority or the Judge Advocate General, the convening authority shall modify any incomplete, ambiguous, void, or inaccurate action noted in review of the record of trial under

Article 64, 66, 67, or examination of the record of trial under

Article 69.” Id. While R.C.M. 1107(f)(2) defines the convening authority’s ability to change his original action, it is not the only rule that discusses correction of a convening authority’s action. Rule for Courts-Martial 1107(

g) states: Incomplete, ambiguous, or erroneous action When the action of the convening or of a higher authority is incomplete, ambiguous, or contains clerical error, the authority who took the incomplete, ambiguous, or erroneous action may be instructed by an authority acting under

Article 64, 66, 67, or 69 to withdraw the original action and substitute a corrected action. Thus, R.C.M. 1107(

g) provides a mechanism for appellate authorities to order a convening authority’s action to be corrected in appropriate cases. DISCUSSION The convening authority’s action in this case is not incomplete, ambiguous, or erroneous on its face. In order to resolve this case, we must address two questions, both of which are issues of first impression in this context. First, can we consider the affidavit of the convening authority as an indication that the convening authority’s action was erroneous?

Second, even if we consider the affidavit, does the error described by the convening authority come within the scope of R.C.M. 1107(g)? Consideration of the Convening Authority’s Affidavit Our superior court has recognized “that there are legitimate and salutary reasons for the now-Court of Criminal Appeals to have the discretion to obtain evidence by affidavit, testimony, stipulation, or a factfinding hearing, as it deems appropriate.” United States v. Boone, 49 M.J. 187, 193 (C.A.A.F.1998).

While we are not authorized to “‘determine innocence on the basis of evidence not presented at trial,’ ” we do have “ ‘factfinding powers on collateral claims.’ ” Id. (quoting United States v. Ginn, 47 M.J. 236, 242 (C.A.A.F.1997)). Collateral claims are those that do not go “directly to the issue of the guilt or innocence of the accused.” United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F.2004); United States v. Dykes, 38 M.J. 270, 272 (C.M.A.1993). The issue in this case involves the sentence approved by the convening authority and is properly categorized as collateral.

As such, we can properly exercise our factfinding powers under

Article 66(c), UCMJ. Post-trial affidavits are a typical evidentiary mechanism for addressing questions regarding post-trial issues. Military courts have approved the use of such affidavits in interpreting ambiguities in an action by a convening authority, United States v. Pineda, 54 M.J. 298, 299 n. 1 (C.A.A.F.2001), determining whether the convening authority considered all required matters in taking action, and analyzing post-trial assertions of ineffective assistance of counsel. United States v. Mays, 33 M.J. 455 (C.M.A.1991).

However, these cases did not address whether such affidavits can be considered over defense objection. A similar question was raised, but not resolved, in United States v. Robbins, 61 M.J. 60 (C.A.A.F.2005). In that case, the convening authority’s action did not explicitly approve the punitive discharge, but stated that the sentence, “except for the part of the sentence extending to the bad-conduct discharge” would be executed. Robbins, 61 M.J. at 60.

The government submitted an affidavit from the convening authority to the Navy-Marine Court of Criminal Appeals indicating that the convening authority had intended to approve the discharge. Id. at 60-61. In his brief, appellant objected to the Navy-Marine Court of Criminal Appeals’ consideration of the affidavit to resolve the ambiguity in the convening authority’s action. Id. at 61.

In determining whether to consider the affidavit, the service court relied on language in Pineda, 54 M.J. at 299 n. 1, in which the Court of Appeals for the Armed Forces considered an affidavit from the convening authority that had been submitted “without appellant’s objection” on the same issue. Id. (quoting Pineda, 54 M.J. at 299 n. 1). The lower court in Robbins used the affidavit to resolve the ambiguity and corrected the action based on the convening authority’s asserted intent. Id.

In Robbins, our superior court found that, because the appellant objected to consideration of the affidavit, the language in Pineda did not control the case’s resolution. Id. Instead, the court found that consideration of the affidavit was unnecessary as the convening authority’s action regarding the bad-conduct discharge was ambiguous, so it could be returned for correction under R.C.M. 1107(g). Id. The court did not resolve the issue of whether we may consider an affidavit such as the one at issue in this case over defense objection.

We find no authority for allowing one party to prevent relevant facts on the administrative processing of a case from being presented to the court merely by lodging an objection. Instead, our analysis should focus on whether there is a legal basis underlying the objection for preventing the consideration of the affidavit. We will look at the proffered reasons for appellant’s objection to determine whether we should consider the affidavit in resolving this case. The defense has asserted that the affidavit is both irrelevant and unnecessary.

In the trial context, “relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Mil. R. Evid. 401. We find the same definition useful in the post-trial arena. In this case, the convening authority’s affidavit clearly makes it more probable that his action is erroneous in that it does not reflect his true intent in taking action on appellant’s ease.

The defense assertion that the affidavit is “unnecessary” is another way of saying that there is no facial defect apparent in the action, so no outside evidence is necessary to interpret it. The real question then is whether outside evidence can be used to determine whether an action, which is facially correct, comes within the realm of R.C.M. 1107(g). A useful starting point in resolving the issue is R.C.M. 1107(

g) itself. The rule contains three separate situations in which we may return an action for correction to a convening authority. It states, in the disjunctive form, that we may return an action to a convening authority when it is incomplete, ambiguous, or contains clerical error. The plain reading of this rule is that an action need not be incomplete or ambiguous to be erroneous. Put another way, an action that is facially complete and unambiguous may nonetheless be erroneous. Moreover, there is no requirement that the action be erroneous on its face to come within the scope of R.C.M. 1107. Compare R.C.M. 1107(

g) with R.C.M. 1008 (stating that where a sentence is proper “on its face,” it cannot be impeached unless there is evidence of outside or unlawful influence on the sentencing authority). See also United States v. Johnson, 29 M.J. 288 (C.M.A.1989) (summary disposition) (finding ambiguity in convening authority’s action created by notation in the SJAR). In fact, if an action is complete and unambiguous, it would likely be difficult for us to tell, solely from the action itself, that it is erroneous.

As with many post-trial, collateral claims, it is necessary for us to consider evidence outside of the action as an indication that error has occurred. See generally United States v. Parker, 36 M.J. 269, 271-72 (C.M.A.1993) (stating that post-trial affidavits play a role in “triggering” further factfinding on an unlawful command interference issue because “-‘command control is scarcely ever apparent on the face of the record’ ”) (quoting United States v. DuBay, 17 U.S.C.M.A. 147, 149, 37 C.M.R. 411, 413, 1967 WL 4276 (1967)).

Our dissenting brother, Senior Judge Bar-to, places greater emphasis on enforcing the “finality” of the initial action than on allowing the true intent of the convening authority to prevail. We are concerned about the consequences this could impose in future cases, particularly where a convening authority omits an intended clemency measure, such as suspension of a portion of the sentence, from an action. According to Judge Barto’s

interpretation of R.C.M. 1107, we could not consider any extrinsic evidence of the convening authority’s intent to grant clemency. Judge Barto asserts that this court could nonetheless “temper [this requirement] by application of accepted notions of military due process in such a case.” We do not share his confidence that an appellant would be so protected if R.C.M. 1107(

g) is given the

interpretation he advocates. Our superior court long ago explained the concept of “military due process” by saying: There are certain standards in the military accusatorial system which have been specifically set by Congress and which we must demand be observed in the trials of military offenses. Some of these are more important than others, but all are of sufficient importance to be a significant part of military law. We conceive these rights to mold into a pattern similar to that developed in federal civilian cases.

For lack of a more descriptive phrase, we label the pattern as ‘military due process’ and then point up the minimum standards which are the framework for this concept and which must be met before the accused can be legally convicted. The Uniform Code of Military Justice ... contemplates that he be given a fair trial and it commands us to see that the proceedings in the courts below reach that standard. United States v. Clay, 1 C.M.R. 74, 77, 1951 WL 1512 (C.M.A.1951).

We are aware of no aspect of military due process which would allow an appellant to introduce evidence to supplement the convening authority’s action where the government cannot. As such, we believe the more judicious

interpretation of R.C.M. 1107(

g) is to allow reviewing courts to retain the discretion to determine when, and under what circumstances, consideration of such evidence is necessary and correct. Appellant also asserts that the affidavit is an attempt by the convening authority to modify his original action in violation of R.C.M. 1107(f)(2). In his dissenting opinion, Judge Clevenger also makes this assertion, pointing to our superior court’s opinion in United States v.

Diaz, 40 M.J. 335, 345 (C.M.A.1994) where the court stated: As long as the case remains within the power of the convening authority, he may correct any administrative error in the promulgating order or take any ministerial action that is appropriate. Once he has taken his action, however, and once that action has been served on the accused or on defense counsel, a convening authority cannot so arbitrarily change his earlier action in some substantive way in order to correct a mistake. Id. at 345 (footnote omitted).

This argument fails to recognize that R.C.M. 1107 describes several stages at which an action can be modified or corrected. Rule for Court-Martial 1107(f)(2) provides three situations in which the convening authority can, unilaterally, modify or correct his original action. None of those situations are present in this case. However, the issue we are confronted with is not whether the convening authority can modify his action unilaterally, but whether we can, and indeed should, order such corrective action. Both R.C.M. 1107(f)(2) and 1107(

g) recognize that even after a convening authority has lost jurisdiction of a case, he may be ordered to take corrective action by certain reviewing authorities, including this court. Our superior court implicitly recognized this dichotomy in Diaz.

While the court held that the convening authority could not unilaterally change his original action after it had been published, the court also acknowledged, “[w]e could, of course, set aside the original action and return the record for a new action, preceded by an SJA recommendation that would correctly inform the convening authority and followed by appellate review under Articles 66, 67, and potentially 67a, UCMJ, 10 USC § 867a.” Diaz, 40 M.J. at 345.

As a result, we find that we can properly consider the affidavit of the convening authority to determine whether this case falls within the scope of R.C.M. 1107(g). Determination of Whether the Action is “Erroneous” It is important to recognize that our superior court has identified two steps in analyzing potential post-trial, collateral issues. The first is the “triggering” process in which an affidavit is submitted that identifies a potential error. Parker, 36 M.J. at 272. Once such an error is asserted, it must next be decided how to properly resolve the issue. See United States v.

Ginn, 47 M.J. 236, 242-43 (C.A.A.F.1997). Because we have determined that we can consider the affidavit to “trigger” further consideration of the issue, we must now decide if we can resolve the question of whether the convening authority’s action was erroneous, within the scope of R.C.M. 1107(g), based solely on the convening authority’s affidavit. We are not permitted to use our factfinding authority under

Article 66(

e) to decide “disputed questions of fact pertaining to a post-trial claim, solely or in part on the basis of conflicting affidavits submitted by the parties.” United States v. Fagan, 59 M.J. 238, 242 (C.A.A.F.2004). However, this is not a situation where we are analyzing conflicting affidavits. We have one affidavit, submitted by the convening authority, explaining that he erroneously signed an action which omitted language approving the bad-conduct discharge. Appellant has offered no evidence to dispute this claim. Consequently, we can decide the issue of whether the convening authority’s action falls within the realm of R.C.M. 1107(

g) based on the record now before us. Rule for Courts-Martial 1107(

g) indicates that an action is “erroneous” when it contains clerical error. The Manual for Courts-Martial does not define “clerical error,” however, a common meaning for this term has been recognized as “[a]n error resulting from a minor mistake or inadvertence, especially in writing or copying something on the record, and not from judicial reasoning or determination.” Black’s Law Dictionary 563 (7th ed.). Cf. United States v.

Jones, 34 M.J. 270, 271 (C.M.A.1992) (stating that error by the military judge in omitting announcing the portion of the adjudged sentence relating to confinement was “of a clerical nature”); United States v. Baker, 32 M.J. 290, 293 (C.M.A.1991) (classifying error by the president of the court-martial in failing to announce part of the adjudged sentence as “clerical”). But see United States v. Klein, 55 M.J. 752, 756 (N.M.Ct.Crim.App.2001) (declining to classify as “clerical error” an error in convening authority’s action which was due to “administrative oversight”).

Thus, a clerical error is one that results from inadvertence rather than the considered decision of the official authorized to take an action or make a judgment. Rule for Courts-Martial 1107(b)(1) provides that “[t]he action to be taken on the findings and sentence is within the sole discretion of the convening authority. Determining what action to take on the findings and sentence of a court-martial is a matter of command prerogative.” This authority cannot be delegated. R.C.M. 1107(

a) discussion. Consequently, clerical error in the context of the convening authority’s action means any error that results in an inaccurate reflection of the convening authority’s intent. When the action in this case is considered in conjunction with the subsequent affidavit of the convening authority, it is clear that a clerical error has occurred. The convening authority states that he intended to approve the bad-conduct discharge adjudged at appellant’s court-martial. Inadvertently, he signed an action that omitted any reference to the discharge.

Because this omission was not the result of his considered decision, we find that the action contains a clerical error. As a result, this case falls within the scope of R.C.M. 1107(

g) and we may return it to the convening authority so he may withdraw the erroneous action and substitute one that accurately reflects his true intent at the time of his original action. While we have the authority to return the action to the convening authority under R.C.M. 1107(g), the question remains as to whether we should. We disagree with Judge Barto’s assertion that allowing corrective action in this ease exceeds our authority because it is contrary to appellant’s interest. We do not believe that appellant should receive the benefit of a clerical error that caused a significant part of his sentence to be omitted from the convening authority’s action. In fact, R.C.M. 1107(

g) specifically provides us with the authority to rectify actions affected by such errors. Undoubtedly, appellant would be in a better position if we held the government to the erroneous action. However, the only thing appellant loses by corrective action in this case is the unintended bonus he received. Appellant did not have a right to this erroneously awarded windfall and cannot reasonably complain of being deprived of its benefit.

Consequently, while a decision to allow corrective action in this case may be construed as contrary to appellant’s interest in a broad sense, it is not contrary to any legitimate interest he holds or has any legal entitlement to demand we protect. Accordingly, the record is returned to The Judge Advocate General of the Army for remand to the same convening authority with directions to withdraw the action dated 3 December 2004. Because of the confusion surrounding the post-trial processing of this case, we direct that a new SJAR be prepared in accordance with

Article 60(d), UCMJ, 10 U.S.C. § 860(d), prior to the convening authority taking corrective action in the case. Once the convening authority takes action on the case, he shall then return the record of trial to this court for further review. Senior Judge SCHENCK, Judge SMITH, Judge JOHNSON, Judge MAHER, Judge OLMSCHEID, Judge HOLDEN, Judge KIRBY, and Judge WALBURN concur. . In the past, this has included the consideration of affidavits submitted by the government to supplement the record on the post-trial processing of a case.

For example, military courts have routinely allowed the government to submit an affidavit from the convening authority to supplement the record and meet the requirement that the record demonstrate that the convening authority considered an accused's clemency submission. See, e.g., United States v. Joseph, 36 M.J. 846, 850 (A.C.M.R.1993); United States v. Briscoe, 56 M.J. 903, 910 (A.F.Ct.Crim.App. 2002); United States v. Crawford, 34 M.J. 758, 761 (A.F.C.M.R.1992); United States v. Godreau, 31 M.J. 809, 812 (A.F.C.M.R.1990); United States v. Blanch, 29 M.J. 672, 673 (A.F.C.M.R.1989). . See, infra, note 1. .

There are undoubtedly collateral issues on which consideration of a post-trial affidavit would be improper and beyond the scope of our factfinding ability. See, e.g., Military Rule of Evidence [hereinafter Mil. R. Evid.] 606(b) (pre-eluding, with certain exceptions, the use of a court-martial member’s affidavit in an inquiry into the validity of the findings or sentence of a court-martial). . For example, in Johnson, 29 MJ. at 288, the SJA and the military judge recommended suspension of the adjudged punitive discharge.

The convening authority's action approved the discharge without suspension, but the SJAR contained "a handwritten notation 'OK' [next to the recommendation for suspension] in writing which appear[ed] similar to the initials of the convening authority.” Using Judge Barto's analysis, if the convening authority had intended to suspend the discharge, but had not noted "OK" on the SJAR, we would be unable to consider any outside evidence of the convening authority's intent and the action would have to stand on its own, depriving appellant of the clemency the convening authority intended to bestow upon him. .

We have, therefore, reconsidered and reversed the court’s prior decision to deny the government’s motion to attach the affidavit of the convening authority. We recognize that Rule 17.1 of this court’s Internal Rules of Practice and Procedure states that "proceedings” that may be reconsidered en banc do not include "interlocutory matters, such as a motion that would not finally dispose of a case.” However, pursuant to Rule 25, we find that there is good cause to suspend that restriction under the specific facts of this case. .

Appellant implies that the convening authority’s assertion that he intended to approve the discharge is untruthful and argues that the action "serves as the best indicator of [the convening authority's] intent at the time he acted on appellant's case.” Appellant further asserts that, ”[a]l-though it appears that the convening authority, upon reflection, now regrets the decision he made in disapproving appellant’s bad-conduct discharge, his affidavit in no way entitles either him or the government to a 're-do.' ” We disagree with the implication that the convening authority's affidavit conflicts with his action.

Nothing in the action contradicts the convening authority’s statement that he mistakenly omitted language approving the discharge.