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

                          UNITED STATES, Appellee
                                       v.
                      Captain KATHRYN T. DEVONSHIRE
                         United States Army, Appellant

                                   ARMY 20110356

                 U.S. Army Fires Center of Excellence and Fort Sill
                         Gregory A. Gross, Military Judge
                  Colonel Jonathan A. Kent, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard D. Gorini, JA; Captain Meghan M. Poirier, JA (on
brief). Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA;
Major Richard D. Gorini, JA; Captain James F. Ingram, JA (on reply brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Daniel D. Maurer, JA (on brief).


                                   25 February 2013

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


Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to her pleas, of seven specifications of violating a lawful general order,
four specifications of wrongfully using a controlled substance, one specification of
wrongfully possessing a controlled substance, and two specifications of wrongfully
distributing a controlled substance in violation of Articles 92 and 112a, Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 912a (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a dismissal, to be confined for five years, and
to forfeit all pay and allowances. Pursuant to a pretrial agreement, the convening
authority (CA) approved only so much of the sentence as provided for a dismissal,
confinement for six months, and total forfeiture of all pay and allowances. This case
is before us for review pursuant to Article 66, UCMJ.
DEVONSHIRE— ARMY 20110356

       In her assignment of error, 1 appellant alleges she was denied effective
assistance of counsel when her defense counsel failed to request deferment of
adjudged and automatic forfeitures pursuant to Article 57(a)(2), UCMJ. While
ultimately leaving the issue of ineffective assistance of counsel unresolved, we find
appellant has established “the requisite showing of possible prejudice” and
therefore, consistent with appellant’s request, order a new review and action. United
States v. Fordyce, 69 M.J. 501, 502 (Army Ct. Crim. App. 2010).

                                       FACTS

       As part of the post-trial and appellate rights advisement process, appellant and
her detailed trial defense counsel, Captain (CPT) S, reviewed and completed a six-
page written form two days before trial (App. Ex. IV). This form serves to
memorialize that CPT S advised appellant of her post-trial and appellate rights.
Pursuant to this form, appellant indicated in writing a desire to request deferment of
automatic and adjudged forfeitures (App. Ex. IV at 4). Both appellant and CPT S
signed this form (App. Ex. IV at 6). As reflected by the record and post-trial
affidavits submitted by appellant and CPT S, a request for deferment of forfeitures
was not submitted to the convening authority and the convening authority did not
approve a deferment of forfeitures.

      Appellant and CPT S 2 have submitted post-trial affidavits (Def. App. Ex. A
and Gov’t. App. Ex. 1, respectively) that address the issue of why a request for
deferment of forfeitures was not submitted. Appellant, pursuant to her affidavit,
wanted CPT S to submit a request for deferment on her behalf. Appellant cited to
her own financial hardships as well as her continued financial support of her parents
to support her reasons for requesting deferment of forfeitures.

      In his affidavit, CPT S stated he advised appellant, immediately following her
court-martial, that deferral of forfeitures was unlikely due to her “lack of DEERS
dependents” and “the overall circumstances of her case based on [his] experience
and informal discussions with government counsel.” Captain S further stated, in
subsequent conversations discussing the preparation of her clemency matters,
appellant did not mention deferral of forfeitures because her focus was to achieve
“an administrative discharge as opposed to the [adjudged] dismissal.” Significantly,



1
 APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE
POST-TRIAL PHASE OF HER COURT-MARTIAL WHEN TRIAL DEFENSE
COUNSEL FAILED TO REQUEST DEFERRAL OF FORFEITURES ON
APPELLANT’S BEHALF.
2
  Captain S was promoted to Major sometime after trial and signed his affidavit
using his new rank. We will continue to refer to him as CPT S for clarity.


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DEVONSHIRE— ARMY 20110356

CPT S does not allege appellant explicitly stated she no longer desired to submit a
request to defer forfeitures.

      In the R.C.M. 1105 and 1106 matters, CPT S requested clemency on
appellant’s behalf in the form of disapproving the adjudged dismissal.

                              LAW and DISCUSSION

       In evaluating ineffective assistance of counsel allegations, we apply the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). This
standard requires appellant to demonstrate: (1) “that his counsel’s performance was
deficient, and (2) that this deficiency resulted in prejudice.” Id.

       Our ability to resolve this post-trial issue is further affected by two factors.
First, pursuant to United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997), we are
prohibited from “deciding disputed questions of fact pertaining to a post-trial claim,
solely or in part on the basis of conflicting affidavits submitted by the parties.”
Second, we are required to grant relief in regards to post-trial matters that involve a
convening authority’s decision “if there is an error and the appellant makes some
colorable showing of possible prejudice.” Fordyce, 69 M.J. at 504 (internal
citations omitted.)

       As reflected in their affidavits, CPT S and appellant are in conflict as to
whether appellant implicitly agreed to forgo a request to defer forfeitures. Neither
appellant nor CPT S alleges appellant ever explicitly agreed to withdraw her request
to defer forfeitures. In applying the principles set forth in Ginn, we are not only
unable to simply discount appellant’s affidavit and decide the issue without further
proceedings, but we are also prevented from formally making a finding regarding
whether defense counsel’s performance was deficient without the benefit of a Dubay
hearing. However, as our court has previously decided in similarly situated cases, 3 a
Dubay hearing does not afford the best solution in resolving the issue before us.

       In addressing the prejudice prong under Strickland, pursuant to Article
57(a)(2), UCMJ and R.C.M. 1101(2) and (3), appellant’s counsel could have
submitted a request to the convening authority (CA) to defer automatic and adjudged
forfeitures. Additionally, a CA’s decision to approve a request for forfeiture
deferment is discretionary, United States v. Rosenthal, 62 M.J. 261, 263 (C.A.A.F
2005) and R.C.M. 1101(3). As such, based on the possibility the CA might have
deferred appellant’s forfeitures had such a request reached him, coupled with



3
  United States v. Fordyce, 69 M.J. 501, 502 (Army Ct. Crim. App. 2010); United
States v. Villanueva, ARMY 20090967 (Army Ct. Crim. App. 28 Mar. 2011); United
States v. Beckner, ARMY 20080605 (Army Ct. Crim. App. 7 May 2010).


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DEVONSHIRE— ARMY 20110356

appellant only needing to make a colorable showing of prejudice, we find appellant
has established the requisite level of prejudice. See Fordyce, 69 M.J. at 503.

       In the current case, we are convinced a DuBay hearing could not put appellant
in a better position than the relief we provide, which happens to be the relief
appellant seeks. There is also no need to further explore the issue of ineffective
assistance of counsel. Therefore, to protect the interests of justice and promote
judicial economy, we order a new review and action.

                                  CONCLUSION

      The convening authority’s initial action, dated 30 August 2011, is set aside.
The record of trial is returned to The Judge Advocate General for a new SJA
recommendation and a new action by the same or a different convening authority in
accordance with Article 60, UCMJ. This remedy will afford appellant the
opportunity to submit a request for deferment of automatic and adjudged forfeitures.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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