UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                  HAIGHT, PENLAND, and WEIS 1
                                    Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                Chief Warrant Officer Three WENDELL W. BENJAMIN
                           United States Army, Appellant

                                         ARMY 20130092

                      Headquarters, United States Army Alaska
                             David Conn, Military Judge
         Colonel Tyler J. Harder, Staff Judge Advocate (pretrial & addendum)
     Lieutenant Colonel Keven J. Kercher, Staff Judge Advocate (recommendation)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief); Colonel Kevin Boyle, JA; Major Amy E. Nieman,
JA; Captain Payum Doroodian, JA (on brief on specified issue).

For Appellee: Major A.G. Courie III, JA; Major Daniel D. Derner, JA; Captain
Christopher A. Clausen, JA (on brief).


                                         29 October 2015

                                    ----------------------------------
                                     MEMORANDUM OPINION
                                    ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WEIS, Judge:

       A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of one specification of rape by force and one specification of
adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10
U.S.C §§ 920, 934 (2006 & Supp. V) [hereinafter UCMJ]. The panel sentenced
appellant to confinement for ten years and forfeiture of all pay and allowances. The
convening authority approved the adjudged sentence.

        Appellant’s case is before us for review pursuant to Article 66, UCMJ. In his
initial brief to this court, appellant raised two assignments of error and also

1
    Judge WEIS took final action on this case while on active duty.
BENJAMIN — ARMY 20130092

personally raised matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), one of which prompted this court to specify an issue for further
briefing by the parties. Specifically, this court directed briefing as to the following
issue:

             WAS APPELLANT — A COMMISSIONED CHIEF
             WARRANT OFFICER WITH MORE THAN TWENTY
             YEARS OF MILITARY SERVICE AT THE TIME OF HIS
             ARRAIGNMENT — PROVIDED WITH EFFECTIVE
             ASSISTANCE OF COUNSEL, BEFORE AND AFTER HIS
             TRIAL, REGARDING HIS RIGHT TO SUBMIT A
             RESIGNATION OR REQUEST RETIREMENT FROM
             THE ARMY IN LIEU OF COURT-MARTIAL.

       In appellant’s brief on the specified issue, he contends he was denied
effective assistance of counsel during the post-trial portion of his case because his
trial defense counsel failed to properly submit a request for resignation to the
convening authority following his conviction.

       Without reaching the ultimate issue of ineffective assistance of counsel, we
conclude post-trial error and a colorable showing of possible prejudice have been
sufficiently established. As a result, we set aside the action of the convening
authority to provide appellant the requested opportunity to submit a resignation
request to the Secretary of the Army through the convening authority. The
remaining assignments of error are not ripe at this time.

                                      I. FACTS

       Prior to trial, appellant discussed with his civilian defense counsel 2 and
detailed military defense counsel, Captain (CPT) Y.C., the possibility of submitting
a “Resignation for the Good of the Service in Lieu of General Court-Martial”
[hereinafter RFGOS] pursuant to Army Regulation 600-8-24. Army Reg. 600-8-24,
Officer Transfers and Discharges [hereinafter AR 600-8-24], para. 3-13 (12 Apr.
2006) (Rapid Action Revision, 13 Sep. 2011). Appellant was advised by both
civilian and military defense counsel that a RFGOS request could be submitted
before trial or after trial up to the point the convening authority took action on the
findings.

      Because it was “believed that an acquittal was reasonably possible” and
appellant was retirement-eligible, both civilian and military defense counsel advised
appellant that “it was best to wait until after trial to submit a RFGOS request in the


2
 It is not disputed that civilian defense counsel was not involved in the post-trial
processing matters.
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BENJAMIN — ARMY 20130092

event of a conviction.” Appellant made an informed decision to not submit a
RFGOS request to the convening authority until after trial “because he wanted to
save his retirement if at all possible.” After appellant was convicted, the defense
achieved its strategy in convincing the panel to forgo a dismissal in sentencing.

      After the sentence was adjudged but prior to action by the convening
authority, appellant advised CPT Y.C. that he “wanted to submit the RFGOS.”
Captain Y.C. did not submit a RFGOS request on behalf of appellant.

       Subsequently, due to “communication problems” coupled with the
reassignment of CPT Y.C., appellant released CPT Y.C. and a new defense counsel,
CPT L.D., was detailed to represent appellant. Appellant advised CPT L.D. that “he
was no longer concerned with receiving retirement benefits if it meant he would
have to serve out the period of confinement” and that his new goal was “to request a
remedy that would effectuate his release from confinement.” Appellant further
advised CPT L.D. that he believed he had the option of submitting either a RFGOS
request or a post-trial “Chapter 10” request and that he wished to “submit whichever
was permitted pursuant to Army Regulation” and “would have the greatest
probability of being approved by the Convening Authority.”

       Captain L.D. consulted with her supervisor as to which would present the best
option for appellant. The first draft of post-trial clemency submission matters
included a request for “Discharge in Lieu of Trial by Court-Martial” pursuant to
Army Regulation 635-200. Army Reg. 635-200, Active Duty Enlisted
Administrative Separations [hereinafter AR 635-200] (6 Jun. 2005) (Rapid Action
Revision, 6 Sep. 2011). However, CPT L.D. discussed with appellant concerns over
whether an officer could submit a resignation request pursuant to AR 635-200.
Appellant indicated to CPT L.D. that he understood the concern and further
indicated his desire “to request resignation conditioned upon disapproval of the
findings and sentence.” As a result, any specific reference to AR 635-200 was
deleted from the draft clemency submission.

       Captain L.D. submitted finalized clemency matters on behalf of appellant
wherein it was requested that the “Convening Authority disapprove the findings and
sentence adjudged at the general court martial . . . and instead grant CW3 Wendell
Benjamin’s request for resignation, conditioned on the disapproval of the findings
and sentence.” The clemency submission also referenced reasons supporting the
resignation request. Appellant’s letter requesting a “post-trial Chapter 10” was also
attached to the clemency submission. The clemency submission did not specifically
reference either AR 600-8-24 or AR 635-200 nor was the request for resignation
submitted on the form or format required by controlling regulations. The convening
authority did not formally recommend approval or disapproval of the “resignation
request” nor was anything forwarded to the Secretary of the Army.



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BENJAMIN — ARMY 20130092

                                      II. LAW

        Claims of ineffective assistance of counsel are reviewed de novo. United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012); United States v. Wiley, 47 M.J.
158, 159 (C.A.A.F. 1997). The Sixth Amendment to the United States Constitution
guarantees an accused the right to “effective assistance of counsel.” United States v.
Cronic, 466 U.S. 648, 653-656 (1984); United States v. Scott, 24 M.J. 186, 187-188
(C.M.A. 1987). The right to effective assistance of counsel extends to advice
concerning post-trial matters. United States v. Knight, 53 M.J. 340, 342 (C.A.A.F.
2000); United States v. Fordyce, 69 M.J. 501, 509 (Army Ct. Crim. App. 2010)(Ham,
J., concurring). Defense counsel must submit requested clemency matters in post-
trial clemency submissions to the convening authority. United States v. Lewis, 42
M.J. 1, 4 (C.A.A.F. 1995).

       There is a “strong presumption” that counsel was competent. Strickland v.
Washington, 466 U.S. 668, 689 (1984); Cronic, 466 U.S. at 658. Courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689; see also United
States v. Rose, 71 M.J. 138, 143 (C.A.A.F 2012); United States v. Axtell, 72 M.J.
662, 664 (Army Ct. Crim. App. 2013). Strickland established a two-part test for
ineffective assistance of counsel: an appellant must demonstrate both (1) that
counsel’s performance was deficient; and (2) that counsel’s deficient performance
resulted in prejudice. 466 U.S. at 687; see also United States Green, 68 M.J. 360,
361 (C.A.A.F. 2010).

       Both prongs of the Strickland test are mixed questions of law and fact.
Strickland, 466 U.S. at 698. As to the first prong of Strickland, an appellant must
demonstrate that counsel’s performance was deficient—that is, “counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.” Id. at 687. As to the second prong of Strickland, an appellant must
demonstrate, due to the highly-discretionary nature of the power of the convening
authority, only “some colorable showing of possible prejudice.” United States v.
Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998); see also United States v. Lee, 52 M.J.
51, 53 (C.A.A.F. 1999); United States v. Fordyce, 69 M.J. 501, 503 (Army Ct. Crim.
App. 2010). While an appellant does not make a colorable showing of possible
prejudice by “sheer speculation,” United States v. Brown, 54 M.J. 289, 293
(C.A.A.F. 2000), an appellant meets this burden where he demonstrates that his
actions, in response to proper advice and guidance from his defense counsel, “could
have produced a different result.” Id.; see also United States v. Frederickson, 63
M.J. 55, 57 (C.A.A.F. 2006).




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                                  III. DISCUSSION

       When, as here, an appellant submits a declaration averring ineffective
assistance of counsel, we must determine whether the claim can be resolved without
recourse to a post-trial evidentiary hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

        This court may decide an issue based upon uncontroverted and undisputed
facts set forth in affidavits. See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997). In Ginn, our superior court announced six principles to be applied by courts
of criminal appeals in disposing of post-trial affidavit-based claims of ineffective
assistance of counsel. Id. Here, we believe this court may decide appellant’s claim
without ordering a fact-finding DuBay hearing, under the third Ginn principle, which
states:

             [I]f the affidavit is factually adequate on its face to state a
             claim of legal error and the Government either does not
             contest the relevant facts or offers an affidavit that
             expressly agrees with those facts, the court can proceed to
             decide the legal issue on the basis of those uncontroverted
             facts.

Ginn, 47 M.J. at 248,

       In the instant case, appellant’s declaration is not rebutted, but rather is
supported, by the affidavits of defense counsel. Additionally, we accept the
concessions of the government that appellant was entitled to submit a post-trial
RFGOS request up to the point in time that the convening authority took action on
the case. Accordingly, we find that the defense counsel erred in not submitting
appellant’s request for resignation in the proper format. Nevertheless, under these
specific circumstances, we decline to make a further finding that Strickland’s
presumption of professional competence has been overcome.

       Moreover, we are confident that a DuBay hearing could not possibly place
appellant in a better position than the relief we provide. In order to protect the
interests of justice and to promote judicial economy, we will order a new
recommendation and action. United States v. Starks, 36 M.J. 1160, 1164 (A.C.M.R.
1993) (citing United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991)); United States v.
Sosebee, 35 M.J. 892 (A.C.M.R. 1992). We do so because we are “not convinced
appellant was ‘afforded a full opportunity to present matters to the convening
authority [or, in this case, the Secretary of the Army] prior to his action on the
case.’” Fordyce, 69 M.J. 501, 504 (Army Ct. Crim. App. 2010) (citing United States
v. Hawkins, 34 M.J. 991, 995 (A.C.M.R. 1992)).



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       Appellant contends he “suffered prejudice by losing a meaningful opportunity
to submit his RFGOS to the Secretary of the Army” in light of the broad discretion
accorded the Secretary. The government counters that there is no colorable
prejudice because “there is no reasonable basis to believe that appellant would have
received the relief requested, had it been submitted correctly” and that the reasons
presented to support the resignation request fail to present “a compelling argument
for setting aside a rape conviction and 10 years of confinement.”

       In this case, it is uncontroverted that appellant desired to submit a post-trial
resignation request. Appellant has submitted a declaration averring his request in
that regard and established from the record of trial and affidavits of counsel a basis
to support such request. The supposition that the convening authority might have
exercised discretion to favorably recommend the request for resignation and that the
Secretary of the Army may have approved it represents a shade of colorable
prejudice. This is especially so in light of the fact that there was no adjudged
dismissal in this case.

       Regarding prejudice, this court need not decide how the convening authority
or Secretary of the Army might act on the RFGOS request. Moreover, through
addressing the appellant’s assignment of error, this court is by no means attempting
to limit, expand or disturb the exercise of statutory authority or discretion by either
the convening authority or the Secretary of the Army. Rather, we solely address the
appellant’s right to formally and properly submit a post-trial RFGOS request through
the convening authority to the Secretary of the Army. United States v. Van Vliet, 64
M.J. 539, 542 (A.F. Ct. Crim. App. 2006).

                                   CONCLUSION

       The convening authority’s initial action, dated 26 February 2014, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation and new action by the same or different
convening authority in accordance with Article 60(c)-(e).This remedy will afford
appellant the requested opportunity to submit a RFGOS request to the convening
authority. Appellant shall also receive a newly-appointed defense counsel to assist
with the preparation of the RFGOS request.

      Senior Judge HAIGHT and Judge PENLAND concur.
                                       FOR THE COURT:
                                        FOR THE COURT:



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

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