UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JEFFRY T. MILLER
United States Army, Appellant
ARMY 20110406
Headquarters, Fort Drum
Andrew J. Glass, Military Judge
Major Matthew H. Adams, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate (post-trial)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Barbara A. Snow-Martone (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Daniel D. Maurer, JA (on brief).
29 March 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge, sitting as a special court-martial convicted appellant,
pursuant to his plea, of one specification of absence from his unit without authority
for over thirty days, in violation of Article 86 Uniform Code of Military Justice, 10
U.S.C. § 886 [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad-conduct discharge and confinement for six months.
This case is before the court for review under Article 66, UCMJ. Appellant
claims he suffered prejudicial error because he was denied his right to request that
the convening authority defer automatic forfeitures. Appellant’s post-trial and
appellate rights form indicated that he wanted to request deferment of automatic
forfeitures. After court-martial, appellant’s counsel never requested deferral of
automatic forfeitures by the convening authority.
MILLER—ARMY 20110406
In response to appellant’s assignment of error on this issue, appellant’s trial
defense counsel submitted an affidavit addressing why he did not submit a request
for deferment on behalf of appellant. In this affidavit, the trial defense counsel said,
“I believe we must have discussed this . . .” and, “I cannot recall when I next spoke
to PFC Miller, but I do not believe that I eschewed submitting a request for
deferment . . . without obtaining [an] oral agreement with him first.” These
equivocal statements indicate that counsel could not specifically recall appellant
rescinding his prior decision to request deferral of forfeitures. Further, the trial
defense counsel admitted in his affidavit that appellant never revised his post-trial
and appellate rights form to indicate any change in his decision regarding the nature
of his post-trial submissions to the convening authority. Therefore, we have no clear
documentation or reliable recollection that appellant changed his mind and decided
not to submit a request for deferment of automatic forfeitures.
There is apparent error in the post-trial processing of appellant’s case because
we are not convinced appellant was “afforded a full opportunity to present matters to
the convening authority prior to his action on the case.” United States v. Fordyce,
69 M.J. 501, 504 (Army. Ct. Crim. App. 2010) (en banc) (quoting United States v.
Hawkins, 34 M.J. 991, 995 (A.C.M.R. 1992)). To prevail on an allegation of post-
trial error, appellant must show he was prejudiced as a result of that error. United
States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998). In matters affecting the
convening authority’s post-trial decision to grant clemency, “there is material
prejudice to the substantial rights of an appellant if there is an error and the
appellant ‘makes some colorable showing of possible prejudice.’” Id. at 289
(quoting United States v. Chatman, 46 M.J. 321, 323–24 (C.A.A.F. 1997)).
Under the facts of this case, we find appellant has demonstrated a “colorable
showing of possible prejudice.” See Wheelus, 49 M.J. at 289. As a result, we
exercise our discretion and set aside the convening authority’s action and order a
new staff judge advocate recommendation and action by the convening authority.
CONCLUSION
The action of the convening authority, dated 6 December 2011, is set aside.
The record of trial will be returned to The Judge Advocate General for preparation
of a new staff judge advocate recommendation and action by the same or a different
convening authority in accordance with Article 60(c)–(e), UCMJ.
FOR THE COURT:
KENNETH J. TOZZI
COL, JAJ. TOZZI
KENNETH
COL,
ActingJA Clerk of Court
Acting Clerk of Court
2
United States v. Private First Class JEFFRY T. MILLER
Combined Opinion