UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                       WOLFE, SALUSSOLIA, and ALDYKIEWICZ
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist CHAD T. NGUYEN
                          United States Army, Appellant

                                   ARMY 20170467

                          Headquarters, Fort Campbell
              Matthew Calarco and Teresa Raymond, Military Judges
                Colonel Andras M. Marton, Staff Judge Advocate


For Appellant: Major Todd W. Simpson, JA; Major Joseph T. Marcee, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.4, no response filed.


                                    23 August 2018

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of absence without leave (AWOL),
one specification of desertion, and one specification of possession of a controlled
substance in violation of Articles 86, 85, and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 886, 885, and 912a (2012) (UCMJ). The military judge
sentenced appellant to a bad-conduct discharge, confinement for ten (10) months,
and reduction to the grade of E-1. Pursuant to a pre-trial agreement, the convening
authority reduced the confinement to ninety (90) days, but otherwise approved the
adjudged sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted this case to this Court without any assignments of error. We notice one
issue regarding appellant’s waiver of his Rule for Courts-Martial (R.C.M.) 1105
matters that warrants discussion, but not relief.
NGUYEN—ARMY 20170467

                                   BACKGROUND

       Appellant left his unit without authority for nearly four months in late 2007.
Eleven days after returning, appellant left his unit, again. This time, appellant left
with the specific intent to avoid the hazardous duty associated with his unit’s
upcoming deployment to Afghanistan. The second absence would last over eight
years.

       Appellant returned to his unit, the 101st Combat Aviation Brigade, on 29
April 2016. About 292 days later, the government preferred charges against the
accused for AWOL and desertion. After preferral of charges, a vehicle inspection
found a small amount of marijuana in a prescription pill bottle hidden in appellant’s
car. On 21 June 2017, charges of AWOL, desertion, and possession of a controlled
substance were referred to a general court-martial.

       On 7 August 2017, about 465 days after appellant returned to his unit,
appellant plead guilty to all offenses. Appellant waived his right to submit matters
to the convening authority. See generally R.C.M. 1105. In submitting the waiver,
the defense counsel stated the following:

             Recognizing your limitations under Article 60, UCMJ,
             SPC Nguyen requested to waive his rights under RCM
             1105 in order to speed up processing of his automatic
             appeal.

                              LAW AND DISCUSSION

       Our concern is that counsel’s statement appears to presume that the convening
authority’s power under Article 60 was limited. When instead, because at least one
offense predates 24 June 2014, the convening authority’s power was nearly
unfettered. See R.C.M. 1107, note (2016 ed.); R.C.M. 1107(c), (d) (2012 ed.).

       Appellant has not alleged a claim that his counsel gave him poor advice or
provided him ineffective assistance. And, importantly, appellant’s desire to “speed
up” the post-trial and appellate processing of his case was a separately valid basis to
waive the submission of clemency matters. In our own review under Article 66(c),
UCMJ, we also do not find appellant is entitled to any relief. See generally
Strickland v. Washington 466 U.S. 668, 687 (1984); United States v. Lee, 52 M.J. 51,
53 (C.A.A.F. 1999).




                                           2
NGUYEN—ARMY 20170467

                                 CONCLUSION

      Finding no prejudicial error, and upon consideration of the entire record, the
findings of guilty and the sentence as approved by the convening authority are
AFFIRMED.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:



                                       JOHN P. TAITT
                                       JOHN   P. TAITT
                                       Acting Clerk of Court




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