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

                           UNITED STATES, Appellee
                                        v.
                  Private First Class JOHNATHAN S. BENDLE
                          United States Army, Appellant

                                       ARMY 20120170

                      Headquarters, III Corps and Fort Hood
                         Kirsten Brunson, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain J. Fred Ingram, JA (on brief); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr., JA; Majo r Amy E. Nieman, JA; Captain
J. Fred Ingram, JA (Motion for Reconsideration) .

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain Sean P. Fitzgibbon, JA (on brief).


                                       8 November 2013

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                   SUMMARY DISPOSITION ON RECONSIDERATION
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KRAUSS, Judge:

      A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of assault consummated by a battery and
one specification of possession of child pornography in violation of Articles 128 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to confinement for thirteen months
and reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

       Appellant previously assigned two errors, asserting that his plea to possession
of child pornography was improvident and that his trial defense coun sel were
ineffective for failing to request deferral of reduction in rank and deferral and
waiver of automatic forfeitures.
BENDLE—ARMY 20120170

       On 17 September 2013, this court affirmed the findings of guilty and the
sentence. United States v. Bendle, ARMY 20120170 (Army Ct. Crim. App. 17 Sep.
2013) (summ. disp.). We rejected appellant’s assertion of post -trial ineffective
assistance of counsel because he failed to support his contention with affidavit or
declaration under penalty of perjury as required under United States v. Axtell,
72 M.J. 662 (Army Ct. Crim. App. 2013). On 15 October 2013, appellant requested
reconsideration of that decision and offered an unsigned , undated declaration under
penalty of perjury, with promise of a signed and dated version forthcoming, in
support of his claim of post-trial ineffective assistance now required by Axtell. On
30 October 2013, we granted appellant’s motion to substitute the signed, dated
declaration and attach it to the record. The government offer ed no further pleadings.

       We grant appellant’s request for reconsideration. Applying the third principle
articulated for resolution of such claims under United States v. Ginn, 47 M.J. 236,
248 (C.A.A.F. 1997), we find appellant’s requested relief sufficiently well -founded
and return the case for a new staff judge advocate r eview and action where appellant
will be afforded the opportunity to request relief from the effect of the reduction and
automatic forfeitures in his case. See United States v. Fordyce, 69 M.J. 501 (Army
Ct. Crim. App. 2010).

      The decision of this court in this case dated 17 September 2013 is withdrawn.
The action of the convening authority, dated 30 August 2012, is set aside. The
record of trial will be returned to The Judge Advocate General for a new staff judge
advocate review and a new action by the same or different convening authority in
accordance with Article 60(c)-(e), UCMJ.

      Senior Judge YOB and Judge LIND concur.

                                         FORTHE
                                        FOR  THECOURT:
                                                 COURT:




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




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