                                   CORRECTED COPY


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

                            UNITED STATES, Appellee
                                         v.
                       Second Lieutenant JOSEPH L. BROWN
                           United States Army, Appellant

                                     ARMY 20180316

               United States Army Combined Arms Support Command
                          Andrew J. Glass, Military Judge
                 Colonel James D. Levine II, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Captain Benjamin A.
Accinelli, JA; Captain Zachary A. Gray, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Major Anne Savin, JA (on brief).


                                        29 May 2020

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

       We review this case under Article 66, Uniform Code of Military Justice, 10
U.S.C. § 866 [UCMJ]. On appeal, appellant asserts two assignments of error: (1)
whether appellant received ineffective assistance of counsel when he was advised
that his pending Resignation For the Good of the Service (RFGOS) could still be
approved if he pleaded guilty and was sentenced to be dismissed; and (2) whether
appellant’s guilty plea was improvident because he did not understand the
consequences of his pleas and pretrial agreement. These alleged errors merit
discussion, but no relief pursuant to appellant’s arguments. We grant relief in our
decretal paragraph pursuant to this court’s reasoning in United States v. Vance,
BROWN—ARMY 20180316

ARMY 20180011, 2020 CCA LEXIS 112 (Army Ct. Crim. App. 8 Apr. 2020) (mem.
op.).

                                  BACKGROUND

       Appellant commissioned into the Army from the Reserve Officers’ Training
Corps (ROTC) and incurred a service obligation as a result of the college
scholarship he received. On 9 November 2017—long before he completed his initial
service obligation—appellant was apprehended for shoplifting from various on-post
stores at Fort Lee, Virginia.

      On 26 February 2018, the government preferred charges against appellant. On
1 March 2018, appellant submitted a RFGOS pursuant to Army Reg. 600-8-24,
Personnel-General: Officer Transfers and Discharges, para. 3-13 (12 Apr. 2008;
Rapid Action Revision 13 September 2011) [AR 600-8-24]. Appellant’s chain of
command, including the General Court-Martial Convening Authority (GCMCA)
recommended disapproval of the RFGOS.

       On 28 March 2018, appellant’s military defense counsel submitted a delay
request asking that the GCMCA not refer charges to a general court-martial “for
ninety (90) days or before the Secretary of the Army or its delegate acts on the
[RFGOS]. . . .” The request explained appellant’s RFGOS had been submitted on 1
March and was still pending a decision. The GCMCA effectively denied this request
by referring the charges to a general court-martial on 4 April 2018. On 24 April,
appellant was arraigned by the military judge who scheduled the court-martial for 4
June 2018. Appellant submitted an offer to plead guilty on 27 April 2018. 1

       On 4 June 2018, a military judge sitting as a general court-martial convicted
appellant, consistent with his pleas, of three specifications of larceny and one
specification of obstruction of justice, in violation of Articles 121 and 134, UCMJ.
The military judge sentenced appellant to forfeit all pay and allowances, and to be
confined for seventy-five days and dismissed from the service.

      On 12 July 2018, the Deputy Assistant Secretary of the Army (Review
Boards), (the “DASA”) approved appellant’s RFGOS, directing that any court-
martial proceedings—both findings and sentence—be vacated and appellant be
administratively discharged with a General (Under Honorable Conditions) (GEN)


1
 While awaiting his court-martial, appellant contacted the United States Army
Human Resources Command (HRC) to inquire about the estimated processing time
for his RFGOS request and request that it be expedited to receive a decision before
his June trial date. HRC advised appellant that it would be two to three months as
his RFGOS was pending a decision regarding his ROTC scholarship recoupment.



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characterization of service. On 12 July 2018, appellant received orders directing the
issuance of his administrative discharge under GEN conditions. Appellant was
released from confinement the same day.

       On 16 October 2018, the GCMCA took initial action and disapproved the
findings and sentence in appellant’s case. 2 On 20 November 2018, 3 the Staff Judge
Advocate (SJA) provided the GCMCA a Post-Trial Recommendation that
specifically referenced an initial post-trial action taken by the GCMCA on 16
October 2018. According to the SJA’s Post-Trial Recommendation to the GCMCA:

                On 16 October, you took initial action in this case and dismissed
                all charges and specifications IAW the directive of the [DASA].
                In light of the recent decision by the Army Court of Criminal
                Appeals, In re Vance, no. Army 20180011, 2018 CCA Lexis 532
                (A. Ct. Crim. App. Nov. 5, 2018), that action was void ab initio.

       In accordance with the SJA’s Recommendation, the GCMCA approved the
findings and only so much of the sentence as provided for dismissal from the
service.

                                LAW AND DISCUSSION

                       Appellant’s Effective Assistance of Counsel

       Appellant asserts that he received ineffective assistance of counsel when he
received “out-of-date and erroneous legal advice that led him to proceed with his
court-martial without waiting for action on his [RFGOS].” Having ordered and
received affidavits from appellant’s civilian and military defense counsel and
considering appellant’s own affidavit, we find appellant has failed to demonstrate
any alleged deficiency in his counsel’s performance resulted in prejudice.

       “In order to prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate both (1) that his counsel’s performance was deficient,
and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J.
360, 361 (C.A.A.F. 2010) (citing United States v. Strickland, 466 U.S. 668, 687
(1984)). Appellate courts may address these prongs in any order because
“[a]ppellant must meet both in order to prevail.” Green, 68 M.J. at 362 (citing
Strickland, 466 U.S. at 697; Loving v. United States, 68 M.J. 1, 6 (C.A.A.F. 2009)).


2
  The original post-trial action dated 16 October 2018 is not included in the record of
trial but is referred to by the Staff Judge Advocate’s post-trial recommendation.
3
    Corrected



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When it is apparent that the alleged deficiency has not caused prejudice, it is not
necessary to decide the issue of deficient performance. See Loving, 68 M.J. at 2.

      To establish prejudice within the context of a guilty plea, appellant bears the
burden of establishing he would not have pleaded guilty but for his counsel’s
allegedly deficient advice. See United States v. Bradley, 71 M.J. 13, 17 (C.A.A.F.
2012). To make such a showing, appellant’s affidavit must not only assert that he
would not have pleaded guilty but for the erroneous advice, but he must also satisfy
a separate, objective inquiry; he must show that if he had been advised properly, it
would have been rational for him not to plead guilty. See id. (citing Padilla v.
Kentucky, 559 U.S. 356 (2010).

       Here, appellant made no such showing. First, he has not asserted that he
would have pleaded not guilty but for his counsel’s advice regarding the effect of a
RFGOS approved post-trial. Rather appellant asserts in his affidavit, “I would not
have pleaded guilty if I had known that doing this would void an approved
resignation by the Department of the Army. I would have waited for the Department
of the Army to make a decision regarding my resignation.” This was not a viable
option. See Vance, 2020 CCA LEXIS 112, at *8. In other words, appellant had two
choices: to plead guilty or to plead not guilty. It was not appellant’s prerogative to
delay entry of his plea at a court-martial or otherwise delay a court-martial
proceeding to wait for the DASA’s action on his pending RFGOS. 4




4
 Appellant also contends his defense counsel were ineffective because they should
have requested a continuance from the military judge and, if they had, appellant
“could have delayed his guilty plea until secretarial action.” We reject appellant's
claim because he has not carried “his burden to show that his counsel would have
been successful if he had filed . . . [a] timely motion” for a continuance. United
States v. Jameson, 65 M.J. 160, 164 (C.A.A.F. 2007). In his affidavit, appellant
suggests that his counsels’ performance was deficient asserting they advised him not
to submit his RFGOS in January 2018, and that if he “had submitted [his]
resignation in January, [the] resignation would have been approved before [he] made
a guilty plea at a court-martial (this is based on the actual amount of time the
Department of the Army took to approve my resignation).” Appellant’s assertion—
which is largely based on hindsight and speculation—is without merit. First, there is
no set time upon which the DASA must act on a RFGOS. See AR 600-8-24, para. 3-
13e; AR 27-10, para. 5-26c. Second, had appellant submitted his RFGOS in January
2018, it would likely have been rejected as being in contravention of AR 600-8-24,
para. 3-13a, because appellant’s case was not preferred until 26 February 2018. This
paragraph indicates in pertinent part that an officer may submit a RFGOS once
court-martial charges have been preferred against the officer.



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BROWN—ARMY 20180316

       Appellant has also made no showing that if he had been advised properly, it
would have been rational for him not to plead guilty. Rather, the record indicates
the opposite in that it was objectively reasonable for appellant to have pleaded guilty
for the benefit of a favorable pretrial agreement with the GCMCA. 5 The
government’s case was strong and included video surveillance capturing some of
appellant’s criminal activity. Additionally, appellant had no reason to believe his
RFGOS would be approved given that his entire chain of command recommended
against approval.

       Accordingly, we find appellant has failed to establish that he would not have
pleaded guilty but for his counsel’s allegedly deficient advice and therefore, he has
suffered no demonstrable prejudice.

                 The Military Judge’s Acceptance of the Guilty Plea

       In appellant’s second assignment of error, he asserts that his guilty pleas were
not provident because he did not understand the consequences of his pleas and
pretrial agreement. Appellant alleges the military judge should have advised him
that the GCMCA could not disapprove a finding of guilty of two specifications to
which he pleaded guilty because their associated maximum punishment includes
confinement exceeding two years. Based on this alleged error, appellant requests we
find his plea improvident and set aside the findings and sentence.

       The issue before this court is whether the military judge abused his discretion
in accepting appellant’s plea. United States v. Murphy, 74 M.J. 302, 305 (C.A.A.F.
2015) (citing United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). An
abuse of discretion occurs when a military judge fails to obtain from an accused an
adequate factual basis to support the plea or has an erroneous view of the law. Id.

      We find no merit to appellant’s assertion that the military judged erred. First,
appellant’s guilty plea did not preclude the DASA’s approval of his previously
submitted RFGOS post trial. See Vance, 2020 CCA LEXIS 112, at *16 (citing
United States v. Woods, 26 M.J. 372, 375 (C.M.A. 1998)).

       Second, the military judge was not obligated to walk appellant through the
process of administrative separation or the GCMCA’s post-trial authority in order to
find his pleas provident. As we recently noted in Vance, “administrative discharges,
to include those resulting from a discharge in lieu of a court-martial, are collateral



5
 Appellant bargained for a pretrial agreement that reduced his total number of
potential convictions from seven to four and significantly capped the amount of
confinement time to which he could be sentenced.



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BROWN—ARMY 20180316

administrative matters.” 6 See Vance, 2020 CCA LEXIS 112, at *12. To show the
military judge erred in accepting his guilty plea, appellant must demonstrate his
“misunderstanding of the consequence (a) results foreseeably and almost inexorably
from the language of a pretrial agreement; (b) is induced by the trial judge's
comments during the providence inquiry; or (c) is made readily apparent to the
judge, who nonetheless fails to correct that misunderstanding.” United States v.
Bedania, 12 M.J. 373, 376 (C.M.A. 1982).

       Nothing in the record supports that one of these conditions has been met.
Appellant clearly understood and accepted the terms of his pretrial agreement, which
was not conditioned upon his RFGOS. Moreover, during the providence inquiry, the
military judge neither induced a misunderstanding nor failed to correct a
misunderstanding on the part of appellant regarding the acceptance of his RFGOS.
Having thoroughly reviewed the record, we find appellant completed a knowing,
voluntary, and intelligent plea of guilty to the charged offenses, including a proper
inquiry pursuant to United States v. Care, 40 C.M.R. 247 (1969).

                  Effecting the Secretary’s Approval of the RFGOS

       Although we reject appellant’s assertions, our analysis continues in order to
determine how to give effect to the DASA’s approval of appellant’s RFGOS. The
GCMCA properly approved the findings and sentence, in accordance with the SJA’s
sound post-trial recommendation. The DASA also properly executed her authority,
approving appellant’s RFGOS and ordering an administrative discharge just as she
did in Vance. See 2020 CCA LEXIS 112, at *21; see also Army Reg. 600-8-24,
para. 3-13h. As such, we have a valid court-martial conviction and a valid
administrative discharge issued by a proper authority. Following the rationale in
Vance, we set aside appellant’s dismissal to give effect to the administrative
discharge. See 2020 CCA LEXIS 112, at *18-19.



6
  As we did in Vance, we decline appellant’s invitation to treat action on appellant’s
RFGOS in the same fashion as the requirement to register as a sex offender. Vance,
220 CCA LEXIS 112, at *12 (this court distinguishing United States v. Riley, 72
M.J. 115 (C.A.A.F. 2013)). Likewise, we reject appellant’s notion that the effect of
a guilty plea on a pending administrative discharge is analogous to the direct
collateral consequence of deportation as a result of a guilty plea. See Lee v. United
States, 137 S. Ct. 1958 (2017). Whereas a guilty plea to a sexual offense brings
about the direct consequence of the obligation to register as a sex offender and a
guilty plea by those in certain immigration statuses may directly result in
deportation by operation of law, appellant’s guilty plea bore no effect on the
DASA’s prerogative to approve or deny his RFGOS.



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                                  CONCLUSION

      Having thoroughly reviewed the record and in light of the reasons set forth
above, the findings are hereby AFFIRMED. As the adjudged dismissal is the only
approved portion of the sentence, the sentence is SET ASIDE. All rights, privileges,
and property, of which appellant has been deprived by virtue of that portion of his
sentence set aside by this decision are ordered restored. See UCMJ arts. 58(b )( c)
and 75(a).

      Senior Judge ALDYKIEWICZ and Judge WALKER concur.

                                          FOR THE COURT:
                                                                      .
                                                                          =-

                                          Chief Deputy Clerk of Court




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