Chris, I reread the Rules, and misread them before. Under the regulations, the SJA "shall" forward a recommendation prior to the convening authority taking action (can't do it until reviewing the SJAR) on "a record of trial by general court-martial" or "a record of trial by special court-martial that includes a sentence to a bad-conduct discharge or confinement for one year". I mistakenly put GCM/SPC together with the need for a BCD/DD and/or 1 year confinement; the qualifier only applies to SPCs. Every GCM must have an SJAR. I should have recognized that the specific language of "BCD" was limited to an SPC, as that is the severest form of discharge at an SPC. I guess we are going to have to wait for the SJAR to come out. Tell me if I'm wrong, but there seems to be no point to submitting the RCM 1105 matters earlier. We will still have 10 days to provide additional matters for review before the CA can take action, as they are also required to be reviewed by the CA. My understanding is that, under Moreno and Barker, the CA has 120 days from sentence to make that decision, although it becomes a balancing test and with "No Punishment" it would be hard to show any prejudice. By my calculation, the CA must take final action on or before 9 Jul 11 (which is a Saturday). Barker Balancing Test: balancing of the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the appellant's assertion of the right to a timely appeal; and (4) the prejudice to the appellant. Until the ROT is authenticated, the SJAR is submitted, and the CA takes final action, there is no way of determining the delay from a due process standard. At some point I need to assert the right to a "timely review" (similar to a "timely appeal"), I'm going to be screwed on "prejudice to the accused" (factor 4) except with novel assertions on career progression, delay in receipt of my law degree, etc., however, none of this will have much weight compared with cases where there was confinement or dismissal as a sentence. Therefore, in my thoughts, I will unlikely ever have a good case for a due process delay unless this takes a year or more. Unless we determine that sending the clemency package under RCM 1105 and requesting the CA grant a request for disapproval of the sole finding of guilty prior to the SJAR is possible, I'm inclined to not submit anything until the SJAR is received, which won't happen until have the record of trial is completed. The counter to this is that we submit the clemency package next week and I will add a special paragraph that asserts a request for timely review of this case, since there is no direct appeal to NMCCA and the statute of limitations for a 69(b) appeal is up to 2 years. Then, if the Gov't takes more than 120 days, we can at least show that we provided everything we possibly could for the SJA under 1107 (minus the ROT and the specific SJA recommendation of disposition). Although under my interpretation of the Rules, the CA can't take final action in the court martial, we may be able to get a preliminary decision from the CG on clemency as to whether he will disapprove the finding when the time comes. Let me know your thoughts. I plan to have a package ready to submit next week. And will continue to add supplements to it over time for when the SJAR finally is received. The benefit to waiting is that Capt Day and LtCol Sullivan would likely be out of the picture. The benefit to submitting early is to get a preliminary decision from the CG to start moving forward with the rest of the administrative processes: potential BOI, request for reinstatement to Major selection, action with the law school for my degree and reinstatement of my security clearance. S/F Doug Douglas S. Wacker Captain, USMC Future Operations Officer MWHS-3, 3D MAW douglas.wacker@usmc.mil Wk: 858-577-6730 DSN: 267-6730 Cell: 858-401-9392 "Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton
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