(concurring in part and in the result):
Although I agree with much of the majority opinion, I do not agree with its speculation concerning possible tactical reasons for defense counsel’s failure to make any clemency submissions to the convening authority during post-trial processing of this case. This is a situation in which defense counsel, for no *23apparent tactical reason, failed to bring sympathetic clemency materials to the attention of the convening authority prior to the convening authority’s action. As this Court has emphasized, the convening authority’s action is an accused’s last “best hope for sentence relief.” See United States v. Jones, 36 MJ 438, 439 (CMA 1993), quoting United States v. Bono, 26 MJ 240, 243 n. 3 (CMA 1988).
As noted by the Court of Criminal Appeals, appellant’s wife testified on sentencing that she suffered “permanent brain damage resulting from being rear-ended by a drunk driver on a freeway” and that “[bjecause of her medical condition, the family was deeply in debt.” Unpub. op. at 4. Despite such sympathetic clemency information, defense counsel made no attempt to persuade the convening authority to grant any clemency with respect to appellant’s sentence to a dishonorable discharge, confinement and partial forfeitures for 12 months, and reduction to the lowest enlisted grade.
Trial defense counsel submitted no petition for clemency under RCM 1105, Manual for Courts-Martial, United States (1994 ed.), and failed to respond to the staff judge advocate’s (SJA) recommendation under RCM 1106 that the convening authority approve the adjudged sentence. Such submissions entail virtually no risk, because the convening authority cannot increase the severity of an accused’s punishment. RCM 1107(d)(1).
Under Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,2065, 80 L.Ed.2d 674 (1984), and its progeny, counsel’s competence is presumed, and the burden falls on an appellant to demonstrate that counsel’s acts or omissions were outside the range of professionally competent assistance. The majority opinion speculates that defense counsel might have seen an advantage in the post-trial delays because, under the law then in effect, appellant continued to receive pay and allowances until the convening authority took final action. Whatever tactical advantages may have flowed from such delays, there was no further advantage to be gained through inaction once the convening authority was prepared to act on the sentence. Trial defense counsel’s failure to make any effort on his client’s behalf under RCM 1105 or 1106 prior to the convening authority’s action appears to be inexplicable, and a substantial argument can be made that at that point— under the particular circumstances of this case — counsel’s performance was outside the range of professionally competent assistance.
Strickland, however, requires more than a showing that counsel’s performance was deficient. Appellant also must show that the deficiency prejudiced him by denying him a fair proceeding — in this case, fair consideration by the convening authority. Id. at 692, 104 S.Ct. at 2067. I agree with the majority insofar as it relies upon appellant’s failure to meet this aspect of the Strickland test. Appellant has not provided any information as to the financial condition of his family at the time of the convening authority’s action, and the information concerning the long-term effects on his wife is sketchy at best. We do not know whether the issues raised 12 months earlier at trial remained serious or largely were moot at the time of the convening authority’s action.
These matters involve facts that were and are uniquely available to appellant. In the absence of any presentation to this Court by appellant as to what facts he would have presented to the convening authority in a clemency petition or response to the SJA recommendation, I agree that he cannot meet the prejudice element of Strickland’s two-pronged test.