UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           JOHNSON, KRAUSS, and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Specialist NICHOLAS B. WATKINS
                         United States Army, Appellant

                                   ARMY 20110040

                    U.S. Military Entrance Processing Command
                          Gregory A. Gross, Military Judge
              Lieutenant Colonel James J. Gibson, Staff Judge Advocate


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

For Appellee: Major Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain
Ryan D. Pyles, JA (on brief).


                                      30 May 2012
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of failure to obey a lawful order, and six
specifications of larceny, in violation of Articles 92 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 921 (2006) [hereinafter UCMJ]. Appellant was
sentenced to a bad-conduct discharge, confinement for eleven months, and reduction
to the grade of E-1. The convening authority approved only so much of the sentence
as provides for a bad-conduct discharge, confinement for eight months, and
reduction to the grade of E-1.

      Appellant’s case is now before this court for review under Article 66, UCMJ.
Appellant raises one assignment of error, alleging ineffective assistance of counsel
and arguing a new review and action must be ordered in this case because his
defense counsel failed to submit a request to the convening authority for deferral of
WATKINS—ARMY 20110040

automatic forfeitures. We need not address the issue of ineffective assistance of
counsel; a new review and action is required under these circumstances.

       In a Post-Trial and Appellate Rights form, appellant specifically asked his
defense counsel to submit a request for deferral of automatic forfeitures to the
convening authority. Appellant expressed great concern for the care and support of
his wife and child, both during his trial and in his post-trial clemency submissions.
However, the defense counsel failed to actually request deferral of automatic
forfeitures.

       In light of the defense counsel’s error, appellant argues that he did not receive
constitutionally adequate representation during the post-trial process. See Strickland
v. Washington, 466 U.S. 668, 687 (1984); United States v. Lee, 52 M.J. 51, 52
(C.A.A.F. 1999). Although appellant casts his argument as one of ineffective
assistance of counsel, this court has also afforded relief without reaching this
constitutional issue where an accused is deprived of the right to “a full opportunity
to present matters to the convening authority prior to his action on the case.” United
States v. Fordyce, 69 M.J. 501, 504 (Army Ct. Crim. App. 2010) (quoting United
States v. Hawkins, 34 M.J. 991, 995 (A.C.M.R. 1992)). In this case, appellant was
deprived of exactly that opportunity. Despite his expressed desire to request a
deferral of automatic forfeitures, no such request was submitted to the convening
authority, and nothing in the record establishes that the convening authority’s
actions in this case could be considered a denial of such. Under the facts of this
case, we are unable to say with any certainty that the convening authority would not
have granted this request if it had been submitted. See United States v. Wheelus, 49
M.J. 283, 289 (C.A.A.F. 1998) (requiring only “some colorable showing of possible
prejudice” for errors connected with a convening authority’s post-trial review).

        Accordingly, the convening authority’s initial action is set aside. The record
of trial is returned to The Judge Advocate General for a new SJAR and action by the
same or a different convening authority in accordance with Article 60(c)–(e), UCMJ.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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