          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600297
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                          AMBER N. ATKINS
    Hull Maintenance Technician Second Class (E-5), U.S. Navy
                           Appellant
                    _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

      Military Judge: Captain Charles N. Purnell, JAGC, USN.
 Convening Authority: Commanding Officer, Naval Medical Center,
                          Portsmouth, VA.
   Staff Judge Advocate’s Recommendation: Lieutenant Regina A.
                      Davis-Niles, JAGC, USN.
  For Appellant: Lieutenant Colonel Richard A. Viczorek, USMCR.
 For Appellee: Major Cory A. Carver, USMC; Lieutenant Megan P.
                       Marinos, JAGC, USN.
                      _________________________

                         Decided 28 March 2017
                         _________________________

Before C AMPBELL , R UGH , and H UTCHISON , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   RUGH, Judge:

   A military judge sitting as a special court-martial convicted the appellant,
consistent with her pleas, of conspiracy to commit larceny, wrongful use of
controlled substances, and larceny—violations of Articles 81, 112a, and 121,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a, and 921
(2012). The military judge sentenced the appellant to eight months’
                     United States v. Atkins, No. 201600297


confinement, reduction to pay grade E-3, and a bad-conduct discharge. The
convening authority (CA) approved the sentence as adjudged, suspending all
confinement in excess of 6 months for a period of confinement served plus 24
months pursuant to a pretrial agreement.
    The appellant now raises two assignments of error (AOE): (1) that the
court-martial order misstates several of the pleas, findings and specifications;
and (2) that the order also mistakenly purports to execute the appellant’s
punitive discharge. The government concedes both errors. We agree and
order corrective action in our decretal paragraph. Otherwise, finding no error
materially prejudicial to the appellant’s substantial rights, we affirm the
findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
   From November 2015 to January 2016, the appellant regularly used
heroin, cocaine, codeine, amphetamines, methamphetamines, and morphine.
At the same time, in support of her various addictions, the appellant
conspired with a civilian to trick several other junior Sailors into giving her
cash in exchange for worthless checks. Additionally, she shoplifted nearly
$800.00 in goods from the Navy Exchange.
                                II. DISCUSSION
A. Errors in the court-martial order
    On 22 August 2016, the CA, Commanding Officer, Naval Medical Center
Portsmouth, Virginia, approved and ordered executed the appellant’s
sentence and promulgated the results via Special Court-Martial Order (CMO)
No. 1-16. As identified by the appellant and conceded by the government, the
CMO contains numerous errors in the specifications, the pleas, and the
findings. Although such persistent inattention to detail is disconcerting, the
appellant does not assert, and we do not find, any prejudice resulting from
these errors. Nevertheless, the appellant is entitled to have the CMO
accurately reflect the results of the proceedings. United States v. Crumpley,
49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order corrective action
in our decretal paragraph.
   Additionally, the CMO provides that “the sentence is approved and will be
executed.”1 Under Article 71(c)(1), UCMJ, a punitive discharge cannot be
ordered executed until there is a final judgment as to the legality of the
proceedings after the completion of direct appellate review. As a result, to the
extent that the CMO purported to execute the bad-conduct discharge, it was


   1   CMO No. 1-16 at 5.



                                       2
                     United States v. Atkins, No. 201600297


a legal nullity. United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009). With that
noted, no further action is required under these circumstances. Id.; United
States v. Furkin, No. 201400005, 2014 CCA LEXIS 804, *2 (N-M. Ct. Crim.
App. 28 Oct. 2014) (per curiam).

B. Post-trial ineffective assistance of counsel
   Although not raised by the parties, we note that the trial defense
counsel’s request for clemency on behalf of the appellant provided:
       [Art. 60, UCMJ, and RULES FOR COURTS-MARTIAL 1101(a),
       1105, and 1106, MANUAL FOR COURTS-MARTIAL (2012 ed.)] give
       you the power, as convening authority, to modify both the
       findings and the sentence of the court-martial, as long as they
       are not increased. As [Art. 60, UCMJ] states, this is “a matter
       of command prerogative in the sole discretion of the convening
       authority.”2
    Relying on this authority, the trial defense counsel requested that the CA
disapprove the appellant’s bad-conduct discharge as his only act in clemency.3
The staff judge advocate’s (SJA) addendum to her previous recommendation
did not comment on this misstatement of the law or on the requested relief.
    Under changes to Article 60, UCMJ, effective now for over two-and-a-half
years, a CA may not “disapprove, commute, or suspend in whole or in part an
adjudged sentence of . . . dismissal, dishonorable discharge, or bad conduct
discharge” unless certain exceptions exist.4 As a result of these changes, the
CA was prohibited from granting trial defense counsel’s sole, requested relief.
United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016) (holding
such an action by the CA to be ultra vires).
    “By virtue of Article 27, UCMJ, 10 U.S.C. §827, as well as the Sixth
Amendment of the Constitution, a military accused is guaranteed the
effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88
(C.M.A. 1987) (citations omitted). That right extends to post-trial
proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). In
reviewing claims of ineffective assistance of counsel, we “look at the questions
of deficient performance and prejudice de novo.” United States v. Datavs, 71

   2 Trial Defense Counsel Clemency Request dtd 15 Jul 2016 at ¶ 2. The request
was received by the CA’s staff judge advocate on 15 August 2016.
   3 While the appellant’s counsel submitted the request four days late, it was still
provided to the CA for his review prior to acting.
   4  National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66,
127 Stat. 672, 956-57 (2013). None of the exceptional circumstances are present in
this case.

                                         3
                    United States v. Atkins, No. 201600297


M.J. 420, 424 (C.A.A.F. 2012). However, we ‘“must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”’ United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F.
2007) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Thus, the
appellant bears the burden of demonstrating (1) that his counsel’s
performance was deficient to the point that he “was not functioning as the
‘counsel’ guaranteed . . . by the Sixth Amendment” and (2) that the deficient
performance prejudiced the defense. Id. (citations and internal quotation
marks omitted).
   In evaluating post-trial ineffective assistance of counsel for prejudice,
courts must give the appellant the benefit of the doubt and find that “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.’”
United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United
States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)).
    Even considering the strong presumption of competence, the trial defense
counsel’s request in this case was so plainly flawed as to be deficient.
Regardless, we conclude that the appellant has not made a colorable showing
of possible prejudice. The appellant has not articulated any specific prejudice
that resulted from the request for unauthorized relief, and has submitted no
evidence indicating how her trial defense counsel’s clemency submission
contrasted with her wishes.5 Likewise, there has been no description of what
the CA “might have done to structure an alternative form of clemency.”
United States v. Capers, 62 M.J. 268, 270 (C.A.A.F. 2005). Nevertheless, we
encourage all counsel and SJA to re-familiarize themselves with the current
state of Article 60, UCMJ.
                                III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed. The
supplemental CMO shall correctly reflect that:
   In the sole specification of Charge II, the appellant pleaded guilty by
exceptions and substitutions and was found guilty by the military judge, with
an additional exception and substitution, the specification thus reading:
       In that Hull Maintenance Technician Second Class Amber N.
       Atkins, U.S. Navy, Naval Medical Center Portsmouth, on
       active duty, did, at or near Norfolk, Virginia, about November
       and December 2015, conspire with Ms. Julie Hall to commit


   5 See United States v. Pierce, 40 M.J. 149, 151 (C.M.A. 1994) (finding that vague
or general intimations with regards to what the appellant would have submitted to
the convening authority were insufficient to show prejudice).

                                         4
                   United States v. Atkins, No. 201600297


       offenses under the Uniform Code of Military Justice, to wit:
       larceny of money of a value of over $500.00, the property of
       various other persons, and in order to effect the object of the
       conspiracy, the said Hull Maintenance Technician Second
       Class Amber N. Atkins, U.S. Navy, and Ms. Julie Hall did
       knowingly ask at least one person to cash a valueless check.
   In Specifications 2, 3 and 4 under Charge IV, the military judge excepted
the word, “Portsmouth” substituting therefore the word, “Norfolk,” and found
the appellant guilty of the specifications as excepted and substituted.
    In Specification 5 under Charge IV, the specification should read, in part:
“steal cash of a value of about $500.00, the property of . . .”
   In the sole specification under Charge VI, the specification should read, in
part: “on or about 26 May 2015, with intent to deceive and for the payment of
a past due obligation, wrongfully and unlawfully make and utter to Aviation
Machinist’s Mate Second Class [CB], U.S. Navy, a certain check upon the
Navy Federal Credit Union in words and figures as follows, to wit…”
   Senior Judge CAMPBELL and Judge HUTCHISON concur.
                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




                                      5
