UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           COOK, CAMPANELLA, and HAIGHT
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                           Private E2 CORY S. LEBEAU
                           United States Army, Appellant

                                    ARMY 20111096

              Headquarters, Joint Readiness Training Center and Fort Polk
                            Virginia Carlton, Military Judge
                    Colonel Keith C. Well, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Kevin F. Sweeney, JA (on
brief).

For Appellee: Major Catherine L. Brantley, JA; Captain Jessica J. Morales, JA (on
brief).


                                       26 June 2013

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

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of failure to obey a lawful order and
wrongful use of heroin, in violation of Articles 92 and 112a of the Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 912a (2006) [hereinafter UCMJ]. The military
judge sentenced appellant to a bad-conduct discharge, twelve months of
confinement, and reduction to the grade of E-1. Pursuant to a pretrial agreement, the
convening authority approved only so much of the sentence as provided for a bad-
conduct discharge, confinement for five months, and reduction to the grade of E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error to this court, one of which merits discussion but no
relief. Appellant’s remaining assignment of error is without merit.
LEBEAU— ARMY 20111096

       In his second assignment of error, appellant alleges this court should grant
appellant appropriate sentence relief because the convening authority erred when he
failed to provide a specific basis for denying appellant’s request for deferment of
automatic forfeitures and rank reduction. See Rule four Court-Martial [hereinafter
R.C.M.] 1101(c)(3); United States v. Zimmer, 56 M.J. 869 (Army Ct. Crim. App.
2002).

       On 16 December 2011, appellant submitted a request for deferment of
automatic and adjudged forfeitures to the convening authority. * Appellant
specifically requested deferment of forfeitures until action so that he could “pay for
drug and alcohol rehabilitation upon his release from confinement.” On 19
December 2011, the staff judge advocate sent an email to the convening authority
informing him of appellant’s request for deferment. The convening authority
responded by email and stated that he denied appellant’s request. The convening
authority did not provide a basis for the denial of appellant’s request.

      Upon application of the accused, Articles 57(a) and 58b, UCMJ, enable a
convening authority to defer automatic forfeitures until the date on which the
convening authority approves the sentence under Article 60, UCMJ. Once a request
is submitted by the accused, “the action of the authority acting on the deferment
request shall be in writing and a copy shall be provided to the accused.” R.C.M.
1101(c)(3). A convening authority’s failure to identify any reason for the denial of
an appellant’s request to defer forfeitures is error. Zimmer, 56 M.J. at 874.

       Accordingly, there was error in this case. Id. However, “[e]ven though a
convening authority commits legal error when he denies a request to defer
punishment . . . without stating his reasons in writing, an individual appellant is not
entitled to relief unless the error ‘materially prejudices the substantial rights of the
accused.’” Id. (citing UCMJ art. 59a; United States v. Brown, 54 M.J. 289, 292-93
(C.A.A.F. 2000)). “Absent credible evidence that a convening authority denied a
request to defer punishment for an unlawful or improper reason, an erroneous
omission of reasons in a convening authority’s denial of a deferment request does
not entitle an appellant to relief.” Zimmer, 56 M.J. at 874. Here, appellant has
neither claimed an unlawful or improper purpose for the convening authority’s
denial of his request for deferment nor alleged that he was prejudiced in any specific
way by the convening authority’s denial. As such, appellant has failed to
demonstrate a material prejudice to his substantial rights.




*
  Despite the language of the assignment of error, counsel never requested
deferment of his adjudged reduction in rank. Furthermore, although counsel did
request deferment of both automatic and adjudged forfeitures, no forfeitures were
adjudged at trial.


                                           2
LEBEAU— ARMY 20111096

                                  CONCLUSION

       On consideration of the entire record and the submission by the parties, we
hold the findings of guilty and the sentence as approved by the convening authority
correct in law and fact. Accordingly, those findings of guilty and the sentence are
AFFIRMED.

                                       FOR THE COURT:




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




                                         3
