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

                           UNITED STATES, Appellee
                                        v.
                  Private First Class JUSTINO N. MONGKEYA
                          United States Army, Appellant

                                   ARMY 20111151

                     Headquarters, United States Army Alaska
                          David L. Conn, Military Judge
                   Colonel Tyler J. Harder, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief). Major
Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on reply brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Catherine L.
Brantley, JA; Captain Michael J. Frank, JA (on brief).


                                    11 October 2013

                              -----------------------------------
                                SUMMARY DISPOSITION
                              -----------------------------------

Per Curiam:

       A military judge sitting as a general court -martial convicted appellant,
contrary to his pleas, of one specification of abusive sexual contact, in violation of
Article 120, Uniform Code of Military Justice. 10 U.S.C. 920 (2006 & Supp. IV
2011), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for three years, and
reduction to the grade of E-1. The convening authority approved two years of
confinement and otherwise approved the sentence . 1



1
 The convening authority also deferred the automatic forfeiture of pay and
allowances until action.
MONGKEYA—ARMY 20111151

       This case is before this court for review under Article 66, UCMJ. Appellant
raises three assignments of error. One assignment of error alleges ineffective
assistance of counsel in the post-trial phase of his court-martial when, contrary to
appellant’s intent, defense counsel did not request that the convening authority defer
the adjudged rank reduction. Without reaching the question of ineffective assistance
of counsel, we set aside the convening authority’s initial action to provide appellant
the opportunity to request deferment of rank reduction. This relief moots one of the
other assignments of error, which alleges that appellant was not afforded the full
opportunity to present clemency matters to the convening authority. Our relief
makes appellant’s remaining assignment of error regarding dilatory post -trial
processing premature for this court’s resolution. The matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) lack
merit.

       On 15 December 2011, the day before appellant’s trial, appellant completed a
Defense Counsel Assistance Program [hereinafter DCAP] form addressing post -trial
and appellate rights. Part of that form detailed appellant’s ability to seek deferment
of automatic and adjudged forfeitures, along with deferment of adjudged reduction
in rank. Appellant noted on the form that he wished to request deferment of
forfeitures and reduction in rank. On 22 December 2011, appellant’s defense
counsel, Captain [hereinafter CPT] WN, requested that the convening authority defer
appellant’s automatic forfeitures until action. 2 In this request, appellant noted the
financial hardship facing his wife and six children. Appellant noted that his wife
only worked part-time. In further support of this request, appellant attached a power
of attorney, granting appellant’s wife the autho rity to act on his behalf. CPT WN
did not request that the convening authority defer appellant’s reduction in rank until
action. As noted above, the convening authority deferred the automatic forfeitures
until action.

       On appeal, appellant alleged that he received ineffective assistance of counsel
in the post-trial phase of his court martial when CPT WN did not request deferment
of rank reduction. In support of his claim, appellant filed an affidavit with this court
stating that he informed CPT WN that he wanted to request deferment of reduction
in rank. Appellant stated that he intended for CPT WN to make this request. In his
own affidavit, CPT WN stated that he thought it unlikely that the convening
authority would defer any reduction in rank for app ellant, given appellant’s sexual
assault conviction. He advised appellant as such. However, CPT WN did not review
the relevant DCAP form before making his request for deferment of forfeitures and,



2
 Captain WN was promoted to Major sometime after trial and signed his affidavit
using his new rank. We will continue to refer to him as CPT WN for clarity.




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MONGKEYA—ARMY 20111151

thus, did not realize that appellant indicated on that form that he wished to request
deferment of rank reduction. 3

       We note our superior court has held an accused's best chance for clemency
rests with the convening authority. 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). If
the convening authority “has not seen a convicted servicemember's clemency
submission, it is well established that he has not been afforded his best hope for
sentence relief.” United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991). 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 light of the miscommunication between appellant and CPT WN,
we will set aside the convening authority’s action and allow appellant the
opportunity to request deferment of rank reduction. 4 We consequently do not reach
the question of whether CTP WN provided ineffective assistance of counsel.

                                   CONCLUSION

       The convening authority’s initial action, dated 11 October 2012, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation (SJAR) and new action by the same or a
different convening authority in accordance with Article 60(c) -(e), UCMJ.
Appellant should also receive a newly-appointed defense counsel to assist with the
preparation of his clemency matters.



3
  According to his affidavit, CPT WN maintained contact with appellant through out
the post-trial process, and appellant never expressed any dissatisfaction when
appellant received pay at the E-1 rate.
4
  We conclude that appellant has met his burden of establishing some colorable
showing of possible prejudice. United States v. Wheelus, 49 M.J. 282, 289
(C.A.A.F. 1998). The President, under his Article 36, UCMJ rule-making authority,
has mandated certain requirements for an accused requesting deferment of
punishment. See Rule for Courts-Martial 1101(c)(2)-(3). Appellant met these
requirements to the apparent satisfaction of his convening authority with respect to
deferral of automatic forfeitures. These requirements apply with equal force to
deferment of rank reduction. In this case, the convening authority’s amenability to
appellant’s first deferment request establishes a colorable inference of his
amenability to deferring appellant’s adjudged rank reduction. At the same time, this
observation in no way limits the convening authority’s discretion to grant or deny
any future deferment request.




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MONGKEYA—ARMY 20111151


                         FOR THE
                         FOR THE COURT:
                                 COURT:




                         MALCOLM H. SQUIRES, JR.
                         MALCOLM     H. SQUIRES, JR.
                         Clerk of Court
                         Clerk of Court




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