UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             LIND, KRAUSS, and BORGERDING
                                 Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                    Private First Class CLEVELAND J. LEWIS
                          United States Army, Appellant

                                       ARMY 20110350

                  Headquarters, 1st Cavalry Division (convened)
                  Headquarters, III Corps and Fort Hood (action)
  Headquarters, Fort Hood (United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R.
                           411 (C.M.A. 1967), hearing)
                     Jacqueline Emanuel, Military Judge (trial)
               Rebecca K. Connally, Military Judge (DuBay hearing)
           Colonel Mark H. Sydenham, Staff Judge Advocate (pretrial)
            Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)
      Colonel Richard W. Rousseau, Staff Judge Advocate (DuBay hearing)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA (on brief); Major Amy E. Nieman, JA;
Captain Sara E. Lampro, JA (additional pleading).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain T. Campbell Warner, JA (on brief).


                                        19 March 2014

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                    SUMMARY DISPOSITION ON FURTHER REVIEW
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KRAUSS, Judge:

       On 9 May 2011, a military judge sitting as a special court -martial convicted
appellant, pursuant to his pleas, of four specifications of absence without leave
(AWOL) (one of which alleged termination of the AWOL status by apprehension)
and three specifications of failure to go to his appointed place of duty in violation of
Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (200 6) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad -conduct discharge,
confinement for five months, and reduction to the grade of E-1. The convening
LEWIS — ARMY 20110350

authority approved the adjudged sentence and credited appellant with 42 days
confinement against the sentence to confinement.

      On 10 January 2013, appellate defense counsel filed a brief on behalf of
appellant, which included the following assignment of error:

             TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
             ASSISTANCE OF COUNSEL IN THE POST-TRIAL
             PHASE OF [APPELLANT’S] COURT-MARTIAL WHEN
             TRIAL DEFENSE COUNSEL FAILED TO ADVISE ON
             OR REQUEST DEFERRAL AND WAIVER O F
             AUTOMATIC FORFEITURES.

       On 23 July 2013, upon motion from government appellate counsel, we ordered
appellant’s trial defense counsel to provide an affidavit answering a series of
questions intended to elicit the facts of the matter involving appellant ’s request for
deferral and waiver of automatic forfeitures.

       On 29 August 2013, we ordered a DuBay hearing to establish the facts
necessary to resolve the matter of ineffective assistance of counsel. The DuBay
hearing was completed on 18 November 2013 . On 27 January 2014, we received the
record of trial, which included the military judge’s findings of fact and conclusions
of law. On 19 February 2014, appellant indicated his intent to submit no further
pleadings on the matter.

       We complete our review of this case under Article 66, UCMJ, and find no
merit to appellant’s three assignments of error and matters personally raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant’s
assertion of ineffective assistance of counsel wa rrants brief remark.

       Appellant’s complaint is based on the assertion that his trial defense counsel
“never advised [him] that I could ask the convening authority to defer or waive the
automatic forfeiture of [his] pay or defer the adjudged rank reduction ” and that he
“would have asked for both deferment and waiver had [he] known about them.” The
DuBay hearing, in conjunction with the record of trial, make abundantly clear that
appellant’s trial defense counsel did advise him that he could request deferme nt and
waiver of forfeitures and deferment in reduction of rank. In addition, appellant
admitted that he was informed by a counselor at the confinement facility of the
possibility to secure pay for his dependents , but he did nothing to address or pursue
that possibility despite his acknowledgement that it was his duty to maintain contact
with his defense counsel over matters of interest to his case. Although defense
counsel did not advise appellant whether he should or should not make a request for
deferment or waiver, nor did defense counsel positively secure a decision from
appellant on the matter, appellant nonetheless fails to meet his burden to establish a
basis upon which any relief might be warranted under the circumstances. See


                                           2
LEWIS — ARMY 20110350

Strickland v. Washington, 466 U.S. 668 (1984); United States v. Clemente, 51 M.J.
547 (Army Ct. Crim. App. 1999); United States v. Fordyce, 69 M.J. 501 (Army Ct.
Crim. App. 2010).

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge LIND and Judge BORGERDING concur.


                                      FOR THE COURT:




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




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