United States v. Specialist CHRISTOPHER A. BORDEN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist CHRISTOPHER A. BORDEN
United States Army, Appellant
ARMY 20130493
Headquarters, U.S. Army Military District of Washington
Scott Lawson, Military Judge
Colonel Corey L. Bradley, Staff Judge Advocate (pretrial)
Lieutenant Colonel Paul E. Golden, Acting Staff Judge Advocate (recommendation)
Colonel James R. Agar, II, Staff Judge Advocate (addenda)
For Appellant: Colonel Kevin M. Boyle, JA; Captain Brian D. Andes, JA;
Lieutenant Colonel Jonathan F. Potter, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major Albert G. Courie , JA; Major
Daniel D. Derner, JA; Captain Christopher A. Clausen, JA (on brief).
6 July 2015
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OPINION OF THE COURT
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PENLAND, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of absence without leave terminated by
apprehension; one specification of failure to repair; one specification of willful
disobedience of a superior commissioned officer; and one specification of failure to
obey a lawful order in violation of Articles 86, 90 , and 92, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 892 (2012). The military judge
sentenced appellant to a bad-conduct discharge, confinement for 90 days, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence and credited appellant with 84 days against the sentence to confinement .
We review this case pursuant to Article 66, UCMJ. Appellant assigns one
error asserting he is entitled to a new review and action because his defense counsel
BORDEN—ARMY 20130493
failed to submit post-trial matters to the convening authority in accordance with
Rule for Courts-Martial [hereinafter R.C.M.] 1105. The government concedes a new
review and action is warranted. W e accept the government’s concession.
PROCEDURAL BACKGROUND
At trial, the military judge and appellant’s defense counsel advised him of his
post-trial and appellate rights. Part of the colloquy between the trial judge,
appellant, and defense counsel included the following discussion:
MJ: Do you understand that if your defense counsel
cannot locate you, it will be difficult for him to know what
to submit for you to the Convening Authority?
ACC: Yes, Your Honor.
MJ: If your defense counsel tries to contact you but is
unsuccessful, do you authorize him to submit clem ency
matters on your behalf to the Convening Authority as he
deems appropriate?
ACC: I do, Your Honor.
....
MJ: Captain [SM], will you be responsible for post -trial
actions in this case and will you be the person upon whom
the Staff Judge Advocate’s Post Trial Recommendation is
to be served?
DC: Most likely, sir. There--but I will discuss with the
court reporter and other people because of my possible
transition.
MJ: Okay. All right. Well, I recommend you do that and
discuss with [appellant], as well, obviously.
The Post-Trial and Appellate Rights Form (PTAR), attached to the record as
an appellate exhibit, mirrored the colloquy. The PTAR stated, inter alia, that: “I
understand that I must work with my defense counsel to assist him/her in co llecting
and preparing those matters I want to be submitted to the convening authority, and in
that regard I must remain in contact with my defense counsel even after my case has
been tried.” Appellant also requested in the PTAR that the record of trial (ROT) be
sent to him and his defense counsel, CPT SM. Finally, where the PTAR states,
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BORDEN—ARMY 20130493
“[p]ending action on my case, I can be contacted or a message may be left for me at
the following address,” appellant wrote “N/A.” However, appellant’s email address
is typed on the form. 1
On 22 July 2013, the convening authority’s Office of the Staff Judge
Advocate (OSJA) received the authenticated record of trial. On 29 July 2013, the
staff judge advocate’s recommendation (SJAR) was signed. The same day, the OSJA
mailed the ROT and SJAR to appellant at the address on his approved request for
excess leave; the ROT and SJAR arrived at this address on 8 August 2013 and the
carrier left a notice of attempted delivery. Unclaimed by appellant, the ROT and
SJAR were returned to the OSJA on 10 September 2013. Meanwhile, CPT SM
transitioned from the active to reserve component. On 1 August 2013, the OSJA
provided the SJAR and ROT to the Senior Defense Counsel, MAJ KS; the SJAR was
also emailed to CPT SM.
On 19 August 2013, the Trial Defense Service (TDS) office informed the
OSJA that CPT AP, a newly appointed defense counsel, would submit appellant’s
R.C.M. 1105 matters. Captain AP had received a copy of the ROT and SJAR two
weeks earlier. On 20 August 2013, CPT AP informed the OSJA that he intended to
submit a request for delay and asked whether appellant had been served with the
ROT. The OSJA responded the next day as follows: “the time started when MAJ
[KS] signed for the SJAR and Record in the absence of CPT [SM]. Th e accused did
not leave a forwarding address of where he wanted us to send the record, so it was
sent to the address listed on his leave paperwork.” Captain AP submitted a request
for delay the same day. On 27 August 2013, the OSJA informed CPT AP that his
delay had been granted until 10 September 2013.
On 10 September 2013, the OSJA sent an email reminding CPT AP that the
matters were due that day. Captain AP replied that “[t]he matters are ready to go,”
that he was “just waiting on confirmation on o ne last TDS administrative piece,” and
that he would make sure to send the matters. A few hours later, CPT AP again
emailed the OSJA to inform them that “there’s a hold placed on the clemency
matters. As such, I will not be submitting the matters today, as expected.” The
OSJA replied:
I am not aware of any “hold” placed on clemency, nor any
provision that allows for such. That said, I am aware that
1
The record establishes the additional facts necessary to this opinion . The
enclosures include: a memorandum for record contemporaneously drafted b y the
Chief of Military Justice; email traffic between defense counsel and the OSJA’s
military justice section; and shipment tracking information .
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BORDEN—ARMY 20130493
you may not have formed an attorney/client relationship
with the Soldier. That said, once we have compli ed with
our obligations under R.C.M. 1104, we will be moving the
packet forward whether or not the Soldier submits matters
as permitted by R.C.M. 1105.
Captain AP replied by asking for a digital copy of the authenticated record of trial to
be emailed to him. The record reflects that because CPT AP never formed an
attorney client relationship with appellant, he was not authorized to submit matters
on appellant’s behalf.
On 1 October 2013, CPT SM received the record of trial. On 9 October 2013,
MAJ KS informed the OSJA that CPT SM was attempting to make contact with his
client and that the TDS office planned to send a memorandum to appellant’s last
known address.
On 1 November 2013, the staff judge advocate (SJA) signed the first
addendum, stating: “The accused did not submit a request for clemency.” The OSJA
mailed the first addendum, along with the SJAR and ROT, to appellant’s leave
address on 7 November 2013. The package arrived on 14 November 2013 ; it was
marked unclaimed on 12 December 2013.
On 30 November 2013, CPT SM signed a “Certificate of Service” for the first
addendum, wherein he wrote: “I do not understand why I was served with a copy [of
the addendum] because, to my knowledge, [appellant] has not been served with the
record of trial or post-trial recommendation. The defense’s post -trial submission is
not due, and, usually, the addendum is served after the date the defense’s post -trial
submission is due and submitted.” On 20 December 2013, the SJA drafted a second
addendum, disagreeing with CPT SM’s opinion that appellant’s post-trial matters
were not due and noting that “[t]he record of trial was served on defense counsel and
there have been two attempts to serve . . . the accused at his leave address. The
packages were unclaimed by the accused.” The SJA again stated that appellant had
submitted no R.C.M. 1105 matters and, in his opinion, had waived his right to do so.
The SJA recommended the convening authority approve the adjudged findings and
sentence, which he did, taking initial action in appellant’s case the same day.
In a memorandum for record drafted on 6 January 2014, the OSJA’s Chief of
Justice further explained:
[Appellant’s PTAR] included a provision allowing his
defense counsel, CPT [SM] to submit R.C.M. 1105 matters
on his behalf in the event he could not be located. This
office exercised due diligence making every effort to
personally serve the record of trial on the accused. When
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those efforts failed, this office formally performed
substitute service on defense counsel, and obtained proof
of service. Personal service of the record of trial on the
accused was impracticable, and substitute service was
mandated by military exigency. The government considers
the 10 day period of time to submit R.C.M. 1105 matters to
have expired. The defense counsel’s failure to submit
matters on behalf of [appellant] is perceived as a waiver
IAW R.C.M. 1105(d)(1).
LAW AND ANALYSIS
We first outline the requirements set forth by the UCMJ and the Rules for
Courts-Martial regarding giving or serving ROTs and SJARs upon accused and the
time period prescribed for submission of post -trial matters by an accused.
Under Article 54(d), UCMJ, “[a] copy of the record of proceedings of each
general and special court-martial shall be given to the accused as soon as it is
authenticated.” (Emphasis added). Under R.C.M. 1104(b)(1)(A), “the trial counsel
shall cause a copy of the record of trial to be served on the accused as soon as the
record of trial is authenticated.” (Emphasis added). Rule for Courts-Martial
1104(b)(1)(B) in turn requires trial counsel to establish proof of service by either
causing “the accused’s receipt for the copy of the record of trial to be attached to the
original record of trial” or if impracticable, by preparing a certificate indicating that
a copy of the ROT has been transmitted to the accused. (Emphasis added). With
regard to the SJAR, both Article 60(d), UCMJ, and R.C.M. 1106(f)(1) require that
the SJAR “be served on the accused.” (Emphasis added).
Article 60(b)(1), UCMJ, requires submission of post-trial matters “within
10 days after the accused has been given an authenticated record of trial and, if
applicable, the recommendation of the staff judge advocate . . . .” Rule for Courts-
Martial 1105(c)(1) provides that an accused may submit post-trial matters within the
later of 10 days after a copy of the ROT, SJAR, or addendum containing new matter
“is served on the accused.”
While not quite legion, the challenges facing OSJAs and TDS offices in the
post-trial process are numerous and occasionally involve recently convicted soldiers
who do not acknowledge or answer mail. In this context, we must interpret whether
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BORDEN—ARMY 20130493
appellant was properly “given” or “served” the ROT and SJAR within the meaning
of the code and the rules. 2
Neither the statute nor the rules specify a particular method for serving the
ROT and SJAR to an accused. Similarly, we do not prescribe a manner of service
with this opinion, recognizing practitioners’ needs to adapt to unpredictable
circumstances. Mailing the ROT and SJAR to an accused’s last known address
satisfies this requirement. See United States v. Kincheloe, 14 M.J. 40, 43 (C.M.A.
1982) (citing Fed. R. Crim. P. 49(b); Fed. R. Civ. P. 5(b)) (“[S]ervice by mail . . .
which is authorized for the service of papers in criminal and civil actions in the
Federal courts, . . . is a permissible way to serve post-trial review.”). This not only
comports with practice in the civilian federal system, but also comports with the
custom of serving ROTs and SJARs in the Army by certified mail with return-receipt
requested. See Office of the Clerk of Court for the United States Army Court of
Criminal Appeals, The Post-Trial Handbook: A Guide for Military Justice
Practitioners, paras. 4-1(b), 4-2(d) (2012 ed.).
The question remains: when an accused is served the ROT and SJAR by
certified mail, when is service complete thereby triggering the accused’s ten-day
deadline for submission of post-trial matters? One possible answer may be found in
the Federal Rules of Criminal Procedure, which provide that “service is complete
upon mailing.” See Fed. R. Crim. P. 49(b); Fed. R. Civ. P. 5(b)(2)(C). However, we
decline to adopt this approach in light of R.C.M. 1104(b)(1)(B)’s requirement, which
makes proof of service contingent upon appellant’s receipt of the ROT. We now
hold that where the government elects to serve post-trial papers by certified mail,
service of such papers is complete upon the day the papers arrive at an accused’s
last known-address. This interpretation is consistent with the President’s
requirement that the accused’s receipt of the ROT (or if impracticable, certificate of
transmission) be attached to the ROT itself. Establishing completion of service upon
delivery to an accused’s last known add ress also encourages OSJAs to track ROTs
and SJARs and maintain accountability both of the documents themselves and the
time elapsed since mailing.
In this case, while appellant did not include a mailing address on the PTAR,
he provided his last known address in his excess leave request. We find that with
the technique the government chose, it fulfilled its responsibility to serve the ROT
2
We acknowledge that despite the difference in terms used by the statute and the
rule regarding the requirement to “give[]” or to “serve[]” a record of trial on the
accused, our superior court has recognized a formal service requirement of the
authenticated record of trial. Cf. United States v. Travis, 66 M.J. 301, 303 (C.A.A.F.
2008).
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and SJAR to appellant. As reflected in the record, the government accomplished this
task by mailing these items to appellant’s last known address. Service was complete
upon the first attempted delivery of the package . Appellant’s apparent lack of effort
to claim the delivery is immaterial. 3
Despite the fact that service was properly effected on appellant in accordance
with this opinion, the government requests we return appellant’s case to the
convening authority for a new review and action. Under the particular
circumstances of this case and in light of the government’s concession that appellant
has made a colorable showing of prejudice, we will grant the requested relief .
CONCLUSION
The convening authority’s action, dated 20 December 2013, is set aside. The
record of trial will be returned to The Judge Advocate General for a new action by
the same or a different convening authority in accordance with Article 60 (c)-(e),
UCMJ.
Senior Judge LIND and Judge KRAUSS concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
3
We have considered R.C.M. 1104(b)(1)(C), which provides for substitute service of
the ROT, and R.C.M. 1106(f)(1), which provides forwarding the accused’s copy of
the SJAR to defense counsel when it is impracticable to serve the acccused.
Considering our conclusion that appellant was actually served the ROT and SJAR,
this is not a “substitute service” case.
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