Haytham, That is what I thought too. But it seems like Maj Schuller isn't planning to write one. Our request should be one for "disapproval" of the finding of guilty on the sole specification. Clemency is somewhat of a nebulous term because it can be granted before or after approval/disapproval of the findings and sentence. If the CG disapproves the findings and the sentence, then there is no p. 13 entry in my OQR in regard to the court martial, which would obviously be better than an entry and then clemency. I want to put the package together, but I need to know what I'm going up against from the SJA. If the SJA is of the mindset to just grant disapproval/clemency outright, then great. There is very little that needs to be done. If the SJA is going to write a more detailed justification as to what action the CG should take after a disapproval/clemency, then I need to come prepared with everything. I have no problem agreeing to a NPLOC and a letter to USD. But if there is going to be an NJP, I need to know what the SJA's recommendation for action is. I'm past the 2 year statute of limitations on NJP, so there would have to be a PTA. I'm not inclined to do that at this point without knowing what the SJA is planning to do. I almost feel as though I can submit a package for clemency now, and wait to see if the SJA is going to submit a letter on final action. If the CG grants clemency, then there it is done even before the SJA submits the letter. If the SJA is waiting for an authenticated record, I should still have 10 days under RCM 1105 to submit additional matters to the CG if he didn't grant clemency on my grounds and waited for the SJA's recommendation. Let me know what you think. 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 -----Original Message----- From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Sent: Monday, April 11, 2011 9:16 To: Wacker Capt Douglas S; Hur Capt Christian P Cc: douglas.wacker@gmail.com Subject: RE: Clemency ICO Capt Wacker I am sure he will Doug. The record of trial is not completed or authenticated yet. They have to wait for that. Under the rules an accused can always request clemency but must make the request within 10 days under R.C.M. 1106 if the request is to be considered before the CA approves the sentence. -----Original Message----- From: Wacker Capt Douglas S [mailto:douglas.wacker@usmc.mil] Sent: Monday, April 11, 2011 12:07 PM To: Hur Capt Christian P Cc: douglas.wacker@gmail.com; haytham@puckettfaraj.com Subject: RE: Clemency ICO Capt Wacker Chris, Maj Schuller needs to send us the SJA recommendation under RCM 1106. Then we have 10 days to send it to the CG under 1105 and Art. 60. If the SJA is not intending to send a recommendation, then we need to know that. Based on what the chain of command has told me the SJA is involved in the matter. It seems to me that Maj Schuller thinks that we are the first to have to act, which is not correct, unless the SJA is not providing an 1106 letter. The SJA is not required to do so if there is not a sentence to a BCD or 1 year in confinement. Under App. 21, RCM 1106(d) para. 3 (1995 Amendment): "Subsection (d)(3)(B) is new. It requires that the staff judge advocate's or legal advisor's recommendation inform the convening authority of any clemency recommendation made by the sentencing authority in conjunction with the announced sentence, absent a written request by the defense to the contrary. Prior to the amendment, an accused was responsible for informing the convening authority of any such recommendation. The amendment recognizes that any clemency recommendation is so closely related to the sentence that staff judge advocates and legal advisors should be responsible for informing convening authorities of it. The accused remains responsible for informing the convening authority of other recommendations for clemency, including those made by the military judge in a trial with member sentencing and those made by individual members." In my case the recommendation was made by the members as a whole and written on the ROT, therefore it is the SJA's responsibility to inform the CG. We provided the individual letters from each member as is required if we obtain them. Bottom line: we need to know if the SJA is putting forth a written recommendation to the CG under RCM 1106. If so, we will wait for it. If not, then we can proceed as we want. 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 -----Original Message----- From: Hur Capt Christian P Sent: Monday, April 11, 2011 8:53 To: Wacker Capt Douglas S; douglas.wacker@gmail.com Subject: FW: Clemency ICO Capt Wacker FYI -----Original Message----- From: Schuller Maj Alan L Sent: Saturday, April 09, 2011 22:54 To: Hur Capt Christian P Subject: Clemency ICO Capt Wacker Capt Hur, JLC Miramar is in receipt of your request for clemency ICO Capt Wacker. In the interests of giving your client the best possible opportunity for favorable consideration by the CG, I recommend you add a few items to the request. First, your letter does not specify what you are asking the CG to do in his action. I recommend you add this, along with reasoning that is supported by the enclosures. Second, if you are asking the CG to disapprove the GCM conviction and instead impose NJP, I recommend you draft a post-trial agreement that is signed by counsel and Capt Wacker, so that the CG could simply sign off on the agreement. This would be the mechanism by which the CG could grant what I assume you are asking for. These are simply courtesy recommendations. If you would rather we process the request "as is" just let me know. If I don't hear back from you, we'll process your request accordingly. Thanks. v/r/s, Maj Schuller Major Alan L. Schuller, USMC Deputy Staff Judge Advocate 3d Marine Aircraft Wing (858) 577-4822
Attachment:
smime.p7s
Description: S/MIME cryptographic signature