       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                   FOR THE   ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                 v.

              Francis L. CAPTAIN, Sergeant
             United States Marine Corps, Appellant
                          No. 15-0172
                    Crim. App. No. 201300137
       Argued October 27, 2015—Decided February 4, 2016
                  Military Judge: John Maksym
   For Appellant: Lieutenant David W. Warning, JAGC, USN
   (argued); Captain David A. Peters, USMC (on brief); Lieu-
   tenant Carrie E. Theis, JAGC, USN.
   For Appellee: Captain Cory A. Carver, USMC (argued);
   Major Suzanne M. Dempsey, USMC, and Brian K. Keller,
   Esq. (on brief).

   Chief Judge ERDMANN delivered the opinion of the
   court, in which Judges STUCKY, RYAN, and OHLSON,
   and Senior Judge LAMBERTH joined.
                       _____________

   Chief Judge ERDMANN delivered the opinion of the
court. 1
    Sergeant Francis L. Captain was convicted, pursuant to
his pleas, of a single specification of abusive sexual contact,
in violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2012). He was sentenced to a dis-
honorable discharge, confinement for five years and six
months, forfeiture of all pay and allowances, reduction to
pay grade E-1, and a fine of $50,000. The convening authori-
ty disapproved the fine, but purported to approve the re-
mainder of the sentence, which he characterized as “forfei-

   1  Senior Judge Royce C. Lamberth, of the United States Dis-
trict Court for the District of Columbia, sat by designation, pursu-
ant to Article 142(f), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 942(f) (2012).
              United States v. Captain, No. 15-0172/MC
                        Opinion of the Court

ture of all pay and allowances, confinement for 5 years, 6
months, 0 days, and reduction to the lowest enlisted grade.”
In accordance with the pretrial agreement, the convening
authority also suspended the period of confinement in excess
of four years. The United States Navy-Marine Corps Court
of Criminal Appeals affirmed the findings and sentence as
approved by the convening authority in an unpublished
opinion. United States v. Captain, No. NMCCA 201300137,
2014 CCA LEXIS 518, at *8, 2014 WL 5386765, at *4 (N-M.
Ct. Crim. App. July 29, 2014) (as corrected Oct. 16, 2014,
and Nov. 4, 2014) (per curiam) (unpublished). The lower
court did not acknowledge any inconsistency between the
adjudged sentence and the sentence approved by the conven-
ing authority. Id.
    To establish ineffective assistance of counsel, an appel-
lant must demonstrate both “(1) that his counsel’s perfor-
mance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. McIntosh, 74 M.J. 294, 295
(C.A.A.F. 2015) (citation omitted) (internal quotation marks
omitted). In addition, a Court of Criminal Appeals may act
only with respect to the findings and sentence as approved
by the convening authority. United States v. Wilson, 65 M.J.
140, 142 (C.A.A.F. 2007). We granted review of this case to
determine whether Captain received ineffective assistance of
counsel during the sentencing portion of his court-martial,
and whether the lower court had jurisdiction to affirm a dis-
honorable discharge where the convening authority failed to
“explicitly state” his approval of the discharge in his action.2
As to the issue of ineffective assistance of counsel, we turn
first to the prejudice prong of the analysis and hold that
Captain has failed to establish prejudice. As to the jurisdic-

   2   We specified the following issues for review:
           I. Whether trial defense counsel provided ineffec-
           tive assistance of counsel by failing to offer evi-
           dence, other than an unsworn statement, in ex-
           tenuation or mitigation, and by conceding the
           appropriateness of a dishonorable discharge.
           II. Whether the United States Navy-Marine
           Corps Court of Criminal Appeals erred in affirm-
           ing a sentence that included a dishonorable dis-
           charge when the convening authority’s action did
           not approve one.



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             United States v. Captain, No. 15-0172/MC
                       Opinion of the Court

tion of the Court of Criminal Appeals to affirm the dishonor-
able discharge, we hold that the convening authority’s action
is ambiguous and the case is therefore returned for correc-
tive action under Rule for Courts-Martial (R.C.M.) 1107(g).
                           I. Background
    On appeal to the Navy-Marine Corps Court of Criminal
Appeals, Captain challenged the effectiveness of his trial de-
fense counsel, claiming that his attorney failed to offer evi-
dence in extenuation and mitigation at sentencing and erro-
neously conceded the appropriateness of a dishonorable
discharge without his consent. Captain, 2014 CCA LEXIS
518, at *2–3, 2014 WL 5386765, at *1–2. After receiving af-
fidavits from both Captain and trial defense counsel, the
lower court concluded it could not resolve Captain’s claims
without further fact-finding and ordered a hearing pursuant
to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411
(1967).
   Following a DuBay hearing, the DuBay military judge3
made extensive findings of fact, which we summarize as fol-
lows:
       Captain’s testimony: Captain provided his counsel
       with a list of prospective sentencing witness who
       had agreed to testify on his behalf; when Captain
       later checked with the potential witnesses, they
       had not been contacted by his defense counsel; Cap-
       tain emphasized that his primary goal was to avoid
       substantial incarceration; his defense counsel had
       convinced him that the possibility of additional
       charges was real, placing him in danger of greater
       exposure to punishment; his counsel also explained
       the benefits of a pretrial agreement, explained the
       maximum sentence under the agreement and ex-
       plained the impact of a dishonorable discharge if
       one should be awarded; counsel informed Captain
       that he would ask for a sentence of a couple of
       years but never mentioned that he would ask for a
       punitive discharge; Captain recalled the military

   3  The same military judge presided over the DuBay hearing
and the court-martial. However, neither party requested that the
DuBay military judge recuse himself despite being afforded ample
opportunity to do so. Indeed, according to the DuBay military
judge’s findings of fact, “[t]he appellant both directly and via coun-
sel w[as] emphatic that [there was] no objection and wished for
[the same military judge] to preside over the DuBay hearing.”



                                  3
            United States v. Captain, No. 15-0172/MC
                      Opinion of the Court

       judge referencing his combat experience during the
       sentencing proceedings.
       Defense counsel’s testimony: Following his initial
       review of the evidence, defense counsel believed
       that the government’s evidence was very strong, in-
       cluding DNA evidence that linked Captain to the
       crime; when he informed Captain of his conclusion,
       Captain asked him to investigate the possibility of
       establishing a motive to lie on the part of the al-
       leged victim and her husband; defense counsel in-
       vestigated and found no evidence of a motive to
       fabricate; defense counsel made it clear that Cap-
       tain did not have a strong case and it was in his in-
       terest to plead guilty under a pretrial agreement;
       defense counsel had been informed that additional
       serious charges might be brought against Captain
       on the basis of an anonymous tip that the Naval
       Criminal Investigative Service (NCIS) was investi-
       gating; in negotiating a pretrial agreement, defense
       counsel’s goal was to minimize the number of
       charges Captain would have to face and obtain a
       confinement cap; when defense counsel learned of a
       change in the presiding judge, he advised Captain
       that the new military judge had a reputation for
       awarding serious punishment; defense counsel ad-
       vised Captain that he would almost certainly be
       sentenced to a dishonorable discharge and recom-
       mended they request a dishonorable discharge as
       part of their sentencing strategy, in order to obtain
       a lesser period of confinement; Captain agreed to
       request a dishonorable discharge, but defense
       counsel did not document this conversation or Cap-
       tain’s consent; defense counsel’s sentencing strate-
       gy was to present the events in question as simply
       one “bad day in the greater life of a very good Ma-
       rine”; based on his familiarity with the sentencing
       practices of the trial judge, defense counsel believed
       Captain’s combat experience would have already
       been noted by the judge; 4 defense counsel also be-
       came concerned that if he called sentencing wit-
       nesses, they could be cross-examined as to the new
       misconduct that the NCIS had uncovered, thereby


   4 In an affidavit submitted by trial defense counsel, counsel
explains that he “elected to rely upon the fact that the military
judge was already aware of [Captain’s] deployments,” rather than
submitting documentation of Captain’s military record.



                                 4
           United States v. Captain, No. 15-0172/MC
                     Opinion of the Court

      damaging the sentencing strategy; defense counsel
      made a tactical decision not to seek relief from the
      dishonorable discharge in clemency, but to concen-
      trate on the eradication of the $50,000 fine; defense
      counsel explained this to Captain, who agreed with
      the approach.
    The Court of Criminal Appeals found no error with the
DuBay military judge’s findings of fact and adopted them.
Captain, 2014 CCA LEXIS 518, at *2, 2014 WL 5386765, at
*1. The lower court held that counsel’s decision not to call
character witnesses or present Captain’s military record at
sentencing was tactical “to avoid opening the door to poten-
tially damaging evidence that the Government could offer in
rebuttal,” and did “not rise to the level of a Sixth Amend-
ment violation.” 2014 CCA LEXIS 518, at *5–6, 2014 WL
5386765, at *3. Similarly, despite counsel’s failure to memo-
rialize a record of Captain’s acquiescence to the request for a
dishonorable discharge, the lower court held that the de-
fense counsel was credible when he testified that he had ful-
ly discussed the matter with Captain and, therefore, coun-
sel’s performance was not deficient. 2014 CCA LEXIS 518,
at *7–8, 2014 WL 5386765, at *3.
                         II. Discussion
   Ineffective Assistance of Counsel
   This court reviews claims of ineffective assistance of
counsel de novo, giving substantial deference to a military
judge’s findings of fact unless they are clearly erroneous.
United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).
   Captain contends his trial defense counsel was deficient
during the sentencing phase of his court-martial when he
withheld evidence of good military character and failed to
develop a record of Captain’s alleged agreement to concede a
punitive discharge. According to Captain, these deficiencies
were prejudicial because the errors increased the likelihood
that he would be dishonorably discharged from the military
when a lesser sentence was reasonably attainable.
    The government counters by arguing that trial defense
counsel was advancing a sentencing theory that would have
been destroyed had he opened the door to damaging rebuttal
evidence. Furthermore, the government asserts that defense
counsel secured Captain’s consent to argue for a dishonora-
ble discharge in an attempt to reduce the confinement period
adjudged. The government also argues Captain was not


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            United States v. Captain, No. 15-0172/MC
                      Opinion of the Court

prejudiced because the military judge was unlikely to im-
pose a sentence that did not include a dishonorable dis-
charge regardless of defense counsel’s sentencing request or
presentation.
   To prevail on an ineffective assistance claim, the appel-
lant bears the burden of proving that the performance of de-
fense counsel was deficient and that the appellant was prej-
udiced by the error. Strickland v. Washington, 466 U.S. 668,
698 (1984).
       With respect to Strickland’s first prong, courts
       “must indulge a strong presumption that counsel’s
       conduct falls within the wide range of reasonable
       professional assistance.” 466 U.S. at 689.
       As to the second prong, a challenger must demon-
       strate “a reasonable probability that, but for coun-
       sel’s [deficient performance] the result of the pro-
       ceeding would have been different.” Strickland, 466
       U.S. at 694. “[T]he question is whether there is a
       reasonable probability that, absent the errors, the
       factfinder would have had a reasonable doubt re-
       specting guilt.” Id. at 695. “It is not enough to show
       that the errors had some conceivable effect on the
       outcome….”
United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012)
(citations omitted).
    When there is an allegation that counsel was ineffective
in the sentencing phase of the court-martial, we look to see
“whether there is a reasonable probability that, but for
counsel’s error, there would have been a different result.”
United States v. Quick, 59 M.J. 383, 386–87 (C.A.A.F. 2004).
We need not apply the Strickland test in any particular or-
der; rather, “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, … that
course should be followed.” Strickland, 466 U.S. at 697;
Datavs, 71 M.J. at 424–25.
    Captain entered a guilty plea to aggravated sexual as-
sault under Article 120 and, in doing so, executed a stipula-
tion of fact in which he admitted that he engaged in abusive
sexual contact with the wife of his friend and fellow soldier,
by digitally penetrating her buttocks and anus while she
was substantially incapacitated or substantially incapable of
declining participation. The maximum sentence for the of-
fense was a dishonorable discharge, seven years of confine-
ment, forfeiture of all pay and allowances, reduction to pay


                                 6
            United States v. Captain, No. 15-0172/MC
                      Opinion of the Court

grade E-1, and a fine. The prejudice analysis requires that
we determine whether there was a reasonable probability
that, but for the alleged errors, the adjudged sentence would
have been less than that provided in the pretrial agreement.
    As to the failure to call any sentencing witnesses to testi-
fy to Captain’s good military character, the DuBay military
judge found that all the potential sentencing witnesses iden-
tified by Captain had “anemic prospective value.” None of
the witnesses identified by Captain had served in combat
with him or even knew him prior to the initiation of the
criminal proceedings. Therefore, it was “markedly doubtful
that [presentation of this evidence] would have made any
difference whatsoever in the sentencing dynamic of this
case.” Certainly the government could have exploited the
testimony of any witness who had known Captain only since
he had been criminally charged by arguing that the conduct
of anyone awaiting trial for such a serious offense might not
offer a good indication of that individual’s overall military
character. Furthermore, trial defense counsel was successful
in having the confinement capped at four years in a pretrial
agreement. Therefore, for a finding of prejudice, the testi-
mony of the prospective witnesses would have had to reduce
the sentence awarded by the military judge to something
less than four years and no fine. Under these circumstances,
such an outcome is not reasonably probable.
    Although defense counsel failed to present documentary
evidence of Captain’s military record, the military judge ex-
plicitly recognized Captain’s multiple awards and decora-
tions prior to the plea colloquy at the court-martial. He also
expressly considered and gave “great credit” to Captain’s
combat zone deployments. In light of these considerations
and Captain’s unsworn statement, the military judge noted
that “the most egregious” nature of the crime seemed incon-
gruous with Captain’s career and left the court “simply won-
dering,” indicating that defense counsel’s sentencing strate-
gy had some effect. In any event, the record reflects that the
military judge considered Captain’s military record and gave
it “great credit.” It is therefore not reasonably probable that
a documentary presentation of this evidence would have im-
pacted the sentence adjudged.
    Moving to counsel’s sentencing request for a dishonora-
ble discharge, we begin by noting that while defense counsel
is not prohibited from advocating for an accused’s wishes in
favor of a particular punishment to the exclusion of others,


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            United States v. Captain, No. 15-0172/MC
                      Opinion of the Court

“[c]ounsel may not … ask a court-martial to impose a puni-
tive discharge when the accused’s wishes are to the contra-
ry.” United States v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994).
Thus, where defense counsel concedes the appropriateness of
a punitive discharge, “even as a tactical step to accomplish
mitigation of other elements of a possible sentence[,] counsel
must make a record that such advocacy is pursuant to the
accused’s wishes.” United States v. Pineda, 54 M.J. 298, 301
(C.A.A.F. 2001) (citation omitted) (internal quotation marks
omitted). One of the reasons we have required documenta-
tion in cases such as these is to avoid the very issue we have
here, where the appellant and trial defense counsel present
diametrically opposed testimony on the issue. That said, we
conclude the DuBay military judge’s findings in this case
sufficiently document the conversation between counsel and
Captain, and constitute a satisfactory substitute for the
lacking contemporaneous memorialization by trial defense
counsel. Consequently, Captain has not suffered any preju-
dice as a result of the trial defense counsel’s failure to docu-
ment the conversation. We continue to stress, however, that
it is in the interest of all parties to memorialize these dis-
cussions when they occur to avoid unnecessarily wasting
time and scarce judicial resources in order to secure post-
trial documentation.
   The CCA’s Jurisdiction to Affirm the Punitive Discharge
   R.C.M. 1107(d)(1) provides the scope of the convening au-
thority’s discretion when he or she takes action on the sen-
tence of a court-martial:
       The convening authority may for any or no reason disap-
       prove a legal sentence in whole or in apart, mitigate the
       sentence, and change a punishment to one of a different
       nature as long as the severity of the punishment is not in-
       creased. The convening or higher authority may not in-
       crease the punishment imposed by a court-martial. The
       approval or disapproval shall be explicitly stated.
Emphasis added.
   R.C.M. 1107(f)(4)(A) further provides that if only a part
of the sentence is approved, the action shall state which
parts are approved. Whether the convening authority has
met the requirements of R.C.M. 1107, as a question of law, is
reviewed de novo. United States v. Ballan, 71 M.J. 28, 30
(C.A.A.F. 2012).




                                8
             United States v. Captain, No. 15-0172/MC
                       Opinion of the Court

    After accepting Captain’s guilty plea, the military judge
sentenced him to a dishonorable discharge, five years and
six months of confinement, forfeiture of all pay and allow-
ances, reduction to E-1, and a $50,000 fine. In his clemency
submission, Captain did not seek disapproval of the dishon-
orable discharge but sought disapproval of the $50,000 fine.
The pretrial agreement provided for approval of any puni-
tive discharge as adjudged. The pertinent parts of the con-
vening authority’s action read as follows:
                          APPROVAL
      In the general court-martial case of Sergeant Fran-
      cis L. Captain the following action is taken on the
      adjudged sentence; the fine of $50,000 is disap-
      proved. The remaining part of the adjudged sen-
      tence as adjudged consisting of forfeiture of all pay
      and allowances, confinement for 5 years, 6 months,
      0 days, and reduction to the lowest enlisted grade is
      approved.
      ....
                          EXECUTION
      In accordance with the [UCMJ], the Manual for
      Courts-Martial, applicable regulations and this ac-
      tion, the sentence is ordered executed. Pursuant to
      Article 71(c), the punitive discharge will be execut-
      ed[] after final judgment.
    According to Captain, the lower court could not affirm
the dishonorable discharge adjudged at the court-martial
because that portion of the sentence was not approved by
the convening authority. Captain also asserts that the con-
vening authority’s action effectively disapproved the puni-
tive discharge and substantially complied with the require-
ments of R.C.M. 1107(d)(1).
    In response, the government argues that a plain reading
of the convening authority’s action evidences an intent to
disapprove the fine but approve the remainder of the ad-
judged sentence, including the dishonorable discharge, since
the convening authority ordered the punitive discharge exe-
cuted after final judgment. According to the government,
even assuming the convening authority’s action is somewhat
ambiguous, the court may remand for corrective action un-
der R.C.M. 1107(g) or look to the surrounding documenta-
tion to resolve that ambiguity based on our decision in Unit-
ed States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006).



                                9
           United States v. Captain, No. 15-0172/MC
                     Opinion of the Court

    In the “Approval” paragraph the convening authority ex-
plicitly disapproved the $50,000 fine and in the following
sentence he approved “the remaining part of the adjudged
sentence as adjudged consisting of all pay and allowances,
confinement for 5 years, 6 months and 0 days, and reduction
to the lowest enlisted pay grade.” Notably the convening au-
thority did not include the dishonorable discharge in the list
of punishments he was explicitly approving. However, the
“Execution” paragraph provides that “Pursuant to Article
71(c), the punitive discharge will be executed, after final
judgment.”
    We addressed this area in Politte, where the convening
authority approved the sentence “except for that part of the
sentence extending to a Bad Conduct Discharge.” 63 M.J. at
25-26. After looking at the pretrial agreement, the recom-
mendations of the staff judge advocate and the request for
clemency, the court determined that the convening authori-
ty’s action was ambiguous and returned the action for clari-
fication. Id. at 26–27.
    We again addressed this area Wilson, 65 M.J. at 141–42,
and held that where the convening authority disapproved
confinement in excess of three years and three months, but
approved the remainder of the sentence “with the exception
of the Dishonorable Discharge,” the language of the conven-
ing authority was clear and unambiguous. As a result, the
dishonorable discharge was not approved. However, in Wil-
son, there was no language in the convening authority’s ac-
tion that was inconsistent with or contradicted the conven-
ing authority’s exception of the dishonorable discharge. Id.
at 141-42.
    In this case, there is no language in the “Approval” para-
graph that either explicitly approves or disapproves the dis-
honorable discharge, but in the following “Execution” para-
graph there is language which provides that the punitive
discharge will be executed after final judgment. We find the
combination of this language to be ambiguous. R.C.M.
1107(g) provides that where the action of a convening au-
thority is “incomplete, ambiguous, or contains clerical error,
the authority who took the incomplete, ambiguous or erro-
neous action may be instructed by [a reviewing authority] ...
to withdraw the original action and substitute a corrected
action.” The action will therefore be returned to the conven-
ing authority for corrective action. In taking this action, we
pause to underscore the importance of a convening authority


                             10
           United States v. Captain, No. 15-0172/MC
                     Opinion of the Court

clearly stating his or her approval, disapproval, commuta-
tion, or suspension of each aspect of an accused’s sentence
when taking action pursuant to R.C.M. 1107(d)(1). We fur-
ther emphasize the vital role that the staff judge advocate or
legal officer plays in ensuring the fulfillment of that provi-
sion.
                         III. Decision
   For the above reasons, we conclude that Appellant was
not denied the effective assistance of counsel. However, be-
cause the convening authority’s action was ambiguous, the
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is set aside and the record is returned to
the Judge Advocate General of the Navy for submission to
the convening authority to withdraw the original action and
substitute a corrected action in accordance with R.C.M.
1107(g). Thereafter, Article 66, UCMJ, and Article 67,
UCMJ, respectively, will apply.




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