United States v. Gipson, ARMY 2007 0521 (A. Ct. Crim. App. 28 September 2009).
This case has an unusual [if mundane] procedural history.. . .
Appellant claims on appeal he was prejudiced by the SJA’s failure to serve him with new matters in the addendum, in violation of R.C.M. 1106(f)(7); and this court erred in its Reinert holding that (1) the government’s writ of prohibition was an extraordinary matter, and (2) the military judge did not have authority to grant appellant additional days of confinement.
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The convening authority’s initial action, dated 8 August 2008, is set aside. The record of trial will be returned to The Judge Advocate General for a new SJAR and a new initial action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ.
The bottom line teaching point for SJA’s and defense counsel goes to what is or isn’t “new matter,” and if there is new matter is it so prejudicial appellate relief is warranted. And the other point is to the trial participants. The court addresses an Army decision of United States v. Reinart, ARMY MISC 20071195, 2008 CCA LEXIS 526 (A. Ct. Crim. App. August 7, 2008)(unpub.), on what a military judge could order.
The military judge granted appellant twenty days credit, and required that the government conduct two remedial steps. First, he ordered the government to “cause each of [the] noncommissioned officers named in the defense motion to be taken to a brigade level commander or sergeant major” and counseled about Article 13, UCMJ. Second, the military judge further directed the government to “conduct training, orientation, or guidance to every drill sergeant on [Fort Leonard Wood] to make sure that they understand that when a [s]oldier is accused of misconduct they cannot go out of their way to punish the accused prior to trial in violation of Article 13, UCMJ.” The military judge concluded by saying that if the government failed to comply with his orders, he would grant appellant five additional days of confinement credit.
But, . . . (2) the military judge lacked plenary authority to order the government to generally train soldiers. See United States v. Reinart.