UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                           Private E1 KEITH D. VALENCIA
                            United States Army, Appellant

                                      ARMY 20090381

                            Headquarters, Fort Stewart
                   Tara A. Osborn, Military Judge (arraignment)
                      Kirsten Brunson, Military Judge (trial)
            Colonel Jonathan C. Guden, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Shane E. Bartee, Staff Judge Advocate (post-trial)

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Matthew T.
Grady, JA (on brief).

For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
Kenneth W. Borgnino, JA (on brief).

                                    28 September 2012
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

KERN, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of willfully disobeying a superior commissioned officer (two
specifications), fleeing apprehension, damage to government property, drunken
operation of a vehicle, assault consummated by battery (two specifications), and
wrongful communication of a threat, in violation of Articles 90, 95, 108, 111, 128,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 895, 908, 911, 928,
934 (2006) [hereinafter UCMJ]. A panel composed of officer and enlisted members
sentenced appellant to a bad-conduct discharge, confinement for three years, and
forfeiture of all pay and allowances. The convening authority approved only so
much of the sentence extending to a bad-conduct discharge, confinement for
seventeen months, and forfeiture of all pay and allowances. Appellant was credited
with 188 days of confinement against the sentence to confinement.
VALENCIA—ARMY 20090381

       Among appellant’s assignments of error for our review under Article 66,
UCMJ, is an allegation that he was denied his Sixth Amendment right to effective
assistance of counsel in the post-trial phase of his court-martial. Prior to the
convening authority’s action, appellant’s defense counsel submitted post-trial
matters pursuant to Rules for Courts-Martial [hereinafter R.C.M.] 1105 and 1106. In
this submission, appellant’s defense counsel included a request for Discharge in
Lieu of Trial by Court-Martial under the provisions of Chapter 10, Army Reg. 635-
200, Personnel Separations: Active Duty Enlisted Administrative Separations
(2005). However, the request for discharge was not signed by appellant, nor was
there an indication whether appellant desired to personally submit matters along
with the request. This is inconsistent with the provisions of the regulation.

        Appellant now claims in an affidavit that his trial defense counsel never
coordinated or consulted with him regarding his R.C.M. 1105 post-trial submission.
As relief, appellant requests that this court set aside his action and order a new post-
trial recommendation and action. In an affidavit in response to an order from this
court, appellant’s defense counsel states that he contacted appellant after his trial,
and “it was settled that the Chapter 10 request would be the centerpiece of the post-
trial submission.” However, this discussion occurred months before the record of
trial was authenticated and the recommendation of the staff judge advocate (SJA)
was served. Appellant’s defense counsel felt, however, that he had enough
information from his earlier interactions with appellant to sufficiently represent him
during the post-trial phase of his case.

       This court would normally attempt to resolve the conflicting affidavits
between appellant and his defense counsel concerning appellant’s post-trial
representation in a hearing conducted in accordance with United States v. DuBay,
17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) (per curiam). See United States v. Ginn,
47 M.J. 236, 243 (C.A.A.F. 1997). In this case, however, we need not resolve the
conflict 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)). Therefore, we are
compelled to grant appellant the relief he requests.

       First, it appears that the combination of defense counsel inaction in reviewing
the record of trial for errata and the government not moving the case forward for
authentication by the military judge allowed the case to sit for several months. This
delay had a particular impact in this case because it significantly lengthened the time
between appellant discussing his post-trial submissions with his defense counsel and
the date when matters were submitted. Both the defense counsel and appellant point
out in their affidavits that they were able to communicate immediately after the trial,
but had difficulty communicating during the time frame when the R.C.M. 1105
matters were submitted. The government could have avoided these problems had it

                                           2
VALENCIA—ARMY 20090381

proceeded with authentication under R.C.M. 1103(g)(1)(B), which contains an
exception to allowing defense counsel to examine the record where unreasonable
delay will result. Nevertheless, difficulties in communication do not excuse a lack
of client consultation. If a significant amount of time passes between post-trial
discussions and submission of matters, defense counsel should be persistent in
contacting his client at a time in closer proximity to the time of any clemency
submission to ensure the client’s clemency interests have not changed.

        Second, in the SJA’s addendum to his post-trial recommendation, there is no
mention of the irregularity that the submitted request for discharge was not signed
by appellant. The SJA merely stated a request for discharge was enclosed and
adhered to his recommendation that the convening authority approve the sentence as
adjudged with the confinement limitation from the pretrial agreement. A more
prudent course of action for the SJA would have been to raise the irregularity with
the trial defense counsel to have it corrected, or alternatively, to note the irregularity
in the addendum and serve that on defense counsel, if necessary.

       Our superior court has noted an accused’s best chance for clemency rests with
the convening authority. See United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F.
1998); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). In addition,
“the convening authority’s obligation to consider defense submissions is uniquely
critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997).
In this case, we find that our concerns with the post-trial processing listed above
prejudiced appellant by preventing him from fully presenting matters and receiving
meaningful consideration of his clemency request. See Fordyce, 69 M.J. at 504.

                                    CONCLUSION

       The convening authority’s initial action, dated 28 September 2010, is set
aside. The record of trial is returned to The Judge Advocate General for a new staff
judge advocate recommendation and a new action by the same or different convening
authority in accordance with Article 60(c)–(e), UCMJ. In addition, appellant will
receive assistance from a new defense counsel.

      Judges ALDYKIEWICZ and MARTIN concur.

                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:



                                          JOANNE P. TETREAULT ELDRIDGE
                                         JOANNE
                                          Deputy ClerkP.of TETREAULT
                                                           Court     E
                                         Deputy Clerk of Court



                                            3
