                        UNITED STATES, Appellee

                                     V.

                  Lavaughn K. KEY, Airman First Class
                       U.S. Air Force, Appellant


                               No. 01-0646


                         Crim. App. No. S29751



       United States Court of Appeals for the Armed Forces

                        Argued February 6, 2002

                        Decided August 30, 2002

GIERKE, J., delivered the opinion of the Court, in which EFFRON
  and BAKER, JJ., joined as to Part I, and CRAWFORD, C.J., and
     SULLIVAN, S.J., joined as to Part II. CRAWFORD, C.J.,
      EFFRON and BAKER, JJ., and SULLIVAN, S.J., each filed
         an opinion concurring in part and in the result.

                                  Counsel

For Appellant: Captain Kyle R. Jacobson (argued); Lieutenant
   Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
   Murphy (on brief).
For Appellee: Major Jennifer R. Rider (argued); Colonel Anthony
   P. Dattilo and Major Lance B. Sigmon (on brief).

Military Judge:    Robert G. Gibson, Jr.


  This opinion is subject to editorial correction before final publication.
United States v. Key, No. 01-0646/AF


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a special court-martial

convicted appellant, pursuant to his pleas, of three

specifications of making false military identification cards and

two specifications of selling false military identification

cards, in violation of Article 134, Uniform Code of Military

Justice (UCMJ), 10 USC § 934.          The adjudged and approved sentence

provides for a bad-conduct discharge, confinement for two months,

and reduction to the lowest enlisted grade.         The Court of

Criminal Appeals affirmed the findings and sentence.         55 MJ 537

(2001).

      Appellant was sentenced on October 20, 1999.        Because his

sentence included a punitive discharge and confinement, a

forfeiture of two-thirds of his pay automatically went into

effect by operation of law 14 days after the sentence was

adjudged.    See Art. 58b(a), UCMJ, 10 USC § 858b(a).
      On October 29, 1999, appellant signed a request for

deferment of his reduction in grade and automatic forfeitures, to

“allow him to continue meeting his child support duties for his
2-year-old daughter.”      The request was not received in the base

legal office until November 3, 1999.         The staff judge advocate

(SJA) served his recommendation (SJAR) on trial defense counsel

on November 2, 1999, the day before appellant’s request for

deferment was received.       On November 8, the SJA transmitted

appellant’s request for deferment to the convening authority with

a written recommendation to disapprove the request, for the

following reasons:




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United States v. Key, No. 01-0646/AF


            Albeit A1C [Airman First Class] Key’s financial
            situation is in itself uncomfortable, the fact remains
            that A1C Key’s situation is one of self-infliction.
            Likewise, in regard to his inability to provide
            financial support for his dependents, A1C Key did not
            attach financial statements or any other supporting
            evidence to substantiate his request.

The SJA did not serve this recommendation on appellant.     The

convening authority denied the request for deferment on November

8, 1999.

      Appellant waived his right to submit matters in response to

the SJAR.    The SJA did not submit an addendum.   On November 19,

1999, the convening authority approved the adjudged sentence, as

recommended by the SJA.

      In a post-trial affidavit, appellant stated, “I do not

recall that [the two appointed military defense counsel] ever

advised me that I could request waiver of automatic forfeitures

for my daughter.”

      On appellant’s petition, this Court granted review of two

issues:

      I. WHETHER IT WAS ERROR FOR THE STAFF JUDGE ADVOCATE TO NOT
      SERVE A LEGAL REVIEW OF APPELLANT’S REQUESTS FOR DEFERMENT
      OF REDUCTION IN RANK AND FOR DEFERMENT OF FORFEITURES ON
      APPELLANT FOR COMMENT.

      II. WHETHER TRIAL DEFENSE COUNSEL’S FAILURE TO ADVISE
      APPELLANT OF HIS OPTION TO REQUEST WAIVER OF AUTOMATIC
      FORFEITURES IN FAVOR OF HIS DEPENDENT OR TO SUBMIT SUCH A
      REQUEST ON HIS BEHALF CONSTITUTES INEFFECTIVE ASSISTANCE OF
      COUNSEL.

For the reasons set out below, we affirm.

                 I.   SJA’s Failure to Serve Appellant
      Appellant asserts that the SJA’s failure to serve him with a

copy of the legal review of his deferment request, thereby

depriving him an opportunity to respond, was error.      He asserts



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United States v. Key, No. 01-0646/AF


that “[a]ny legal review of a case for the convening authority,

including those of forfeiture waiver requests, prepared after the

SJAR is served on appellant should be treated as an addendum to

the original SJAR and served on appellant for comment.”        Final

Brief at 6, quoting United States v. Spears, 48 MJ 768, 776

(A.F.Ct.Crim.App. 1998).       The Government argues that there was no

requirement to serve the SJA’s review of the deferment request.

The Government also argues that, even if the SJA’s review was the

equivalent of an addendum, service on appellant was not required

because the SJA’s review did not contain inflammatory comments or

new matter.

      Whether there is a legal requirement to serve the SJA’s

recommendation on a deferment request, and whether the SJA’s

recommendation contained “new matter,” are issues of law that

this Court reviews de novo.       United States v. Chatman, 46 MJ 321,

323 (1997); 2 Steven Alan Childress & Martha S. Davis, Federal

Standards of Review, § 7.05 (3rd ed. 1999).

      Article 57(a)(2), UCMJ, 10 USC § 857(a)(2), authorizes a

convening authority to defer forfeitures or reduction in grade on
application of an accused.       See also Art. 58b(a)(1).   The

convening authority “may, upon written application of the

accused, at any time after the adjournment of the court-martial,

defer the accused’s service of a sentence to confinement,

forfeitures, or reduction in grade that has not been ordered

executed.”    RCM 1101(c)(2), Manual for Courts-Martial, United




                                       4
United States v. Key, No. 01-0646/AF


States (2000 ed.).1     An accused has the burden of showing

entitlement to deferment.       RCM 1101(c)(3).   The convening

authority’s action on a request for deferment “shall be subject

to judicial review only for abuse of discretion.”        Id.   A

deferment request and the convening authority’s action on it must

be attached to the record of trial.        RCM 1103(b)(3)(D) and

1103(c)(1).2

      Article 60(d), UCMJ, 10 USC § 860(d), requires that the SJAR

be served on the accused.       Article 60(d) does not mention addenda

to a SJAR.     However, RCM 1106(f)(7) specifically requires service

on the accused and counsel whenever “new matter” is introduced in

an addendum.    The non-binding Discussion of RCM 1106(f)(7)

explains:

                 “New matter” includes discussion of the effect of
            new decisions on issues in the case, matter from
            outside the record of trial, and issues not previously
            discussed. “New matter” does not ordinarily include
            any discussion by the staff judge advocate or legal
            officer of the correctness of the initial defense
            comments on the recommendation.

      In Chatman, supra, this Court established a requirement
that, when an appellant complains about the failure to serve “new
matter,” the appellant must “demonstrate prejudice by stating

what, if anything, would have been submitted to ‘deny, counter,

or explain’ the new matter.”




1
  All provisions of the Manual are unchanged from those in effect
at the time of appellant’s court-martial, unless otherwise
indicated.
2
  RCM 1103(c)(1) was amended on April 11, 2002, effective May 15,
2002, by Executive Order Number 13262.



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United States v. Key, No. 01-0646/AF


      In United States v. Brown, 54 MJ 289, 292 (2000), this Court

noted the absence of a specific statutory or regulatory

requirement to serve a recommendation on a request for deferment

of forfeitures.       This Court declined to decide whether there was

a requirement for service founded on constitutional due process

or statutory interpretation, because the appellant in that case

had not demonstrated prejudice.            Id.

      Likewise, we need not reach the constitutional or statutory

interpretation issues in this case, because we hold that the

SJA’s comments were not “new matter.”            The SJA’s first comment

about appellant’s self-inflicted financial situation was a

statement of the obvious.       The SJA’s comment about the absence of

supporting documentation, in the context of this case, did not

inject anything from outside the record.            It was merely a non-

inflammatory observation about the contents of the request.            In

our view, a comment about the absence of documentation falls in

the same category as a comment about “the correctness of the

initial defense comments on the recommendation,” addressed in the

Discussion of RCM 1106(f)(7), supra.
                II.    Ineffective Assistance of Counsel

      Appellant claims that his two military defense counsel were

ineffective because he does not recall them advising him about

the possibility of requesting waiver of forfeitures.            This court

reviews claims of ineffective assistance of counsel de novo.

United States v. Wiley, 47 MJ 158, 159 (1997).

      Strickland v. Washington, 466 U.S. 668, 687 (1984),

established a two-part test for ineffective assistance of

counsel: an appellant must show deficient performance and


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United States v. Key, No. 01-0646/AF


prejudice.    There is a “strong presumption” that counsel are

competent.    Id. at 689.     Broad, generalized accusations are

insufficient to satisfy the first prong.          See United States v.

Moulton, 47 MJ 227, 229-30 (1997).          In United States v. Lewis, 42

MJ 1, 6 (1995), this Court stated:

            [T]rial defense counsel should not be compelled to
            justify their actions until a court of competent
            jurisdiction reviews the allegation of ineffectiveness
            and the government response, examines the record, and
            determines that the allegation and the record contain
            evidence which, if unrebutted, would overcome the
            presumption of competence.

We hold that appellant’s assertion, that he does not recall being

advised of his right to request a waiver of forfeitures, falls

short of the Lewis standard for compelling defense counsel to
justify their actions.      Appellant’s assertion is too equivocal

and ambiguous to overcome the presumption that his counsel were

competent.

      Even assuming, arguendo, that appellant’s equivocal

affidavit satisfies Strickland and Lewis, appellant has not

established prejudice.      We agree with the court below that there

was no reasonable likelihood that the convening authority would
have granted a request to waive the forfeitures for the benefit

of appellant’s child after he denied a request to defer the

forfeitures for the same purpose.          See 55 MJ at 545.

Furthermore, although appellant asserts that he would have

requested a waiver of forfeitures if he had been advised of his

right to do so, he has failed to provide the court below or this

Court with any offer of proof regarding what he would or could

have submitted to support his waiver request.          See United States

v Pierce, 40 MJ 149, 151 (CMA 1994) (“[v]ague or general


                                       7
United States v. Key, No. 01-0646/AF


intimations” about the “particular nature of the materials” that

would or could have been submitted in clemency petition

insufficient to show prejudice); see also Moulton, supra at 230

(“When factual information is central to an ineffectiveness

claim, it is the responsibility of the defense to make every

feasible effort to obtain that information and bring it to the

attention of the appellate court.”).

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Key, No. 01-0646/AF


      CRAWFORD, Chief Judge (concurring in part and in the

result):

      When, as in this case, an appellant is represented by

counsel, has notice of the convening authority’s action, and

takes no further action for months, there is no violation of due

process.    Generally, a litigant should raise an issue when there

is a timely opportunity to respond and take action if

appropriate.    Cf. Johnson v. Garber, 73 F. 523, 524-25 (6th Cir.

1896)(“[A] court of error cannot consider an exception [to the

indictment] which was not tendered at the time of the ruling of

the trial court[.]”).      The common law concept of waiver is not

new and applies to almost every area of the law and nearly every

right.   See, e.g., RCM 903(e), 905(b), 905(e), 907(b)(2),

1106(f)(6), Manual for Courts-Martial, United States (2000 ed.);1

Mil.R.Evid. 103, 305(g), 311(e), 321(g), Manual, supra; cf. RCM

1101(c)(7)(B) (request for reconsideration).

      There is no requirement that a Staff Judge Advocate’s (SJA)

recommendation on a request for deferment be served on an

appellant or his defense counsel.         This Court is once again

crossing over the boundary of the doctrine of separation of

powers and engaging in judicial rule-making by converting the

Manual rules on “new matter” (RCM 1106(f)(7)) to new rules on

requests for deferment.       If we are truly a court of law, we


1
  All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
United States v. Key, No. 01-0646/AF


should apply the existing rules and leave promulgation of new

rules to the President.       It is not the role of a court to impose

new rules and ignore the long-established common law rules

concerning waiver.      Rather than devising a new rule, this Court

should adopt as suitable analogues the existing rules that

pertain to recision of deferment.

      It matters how we decide cases.        Appellant is not left

without a right.     His due process rights have not been abridged.

Our Court is part of the “majoritarian process.           That is, the

elected representatives of Congress, in consultation with the

Executive branch, have the power to make any necessary changes”

that may be needed.      United States v. Weiss, 36 MJ 224, 239 (CMA

1992)(Crawford, J., concurring in the result).           As Chief Justice

Marshall stated:     “The difference between the departments

undoubtedly is, that the legislature makes, the executive

executes, and the judiciary construes the law....”            Wayman v.

Southard, 23 U.S. 1, 46 (1825).        Courts do not make the law.

That is left to our elected officials.          Jack N. Rakove, Original

Meanings: Politics and Ideas in the Making of the Constitution

367-68 (1996).2     I disagree with those who would argue that


2
  There seems to be an unusual pattern to the majority’s decision-making this
term of Court. The Court is acting as a quasi-administrative body rather
than as a court of law. While each individual case standing alone may not
appear to be significant, the consideration of all together reveals a
disturbing pattern of judicial overreaching unrivaled in the Court’s recent
history. See United States v. Wiesen, 56 MJ 172 (2001), pet. for recon.
denied, 57 MJ 48 (2002); United States v. Spaustat, No. 01-0656, ___ MJ ___
(2002); United States v. Tardif, No. 01-0520, ___ MJ ___ (2002); United
States v. Jordan, No. 01-0483, ___ MJ ___ (2002). While my colleagues are
                                      2
United States v. Key, No. 01-0646/AF


because changes are slow, judges, not the majoritarian process,

should be the prime movers of changes to the law.

      Appellant’s trial was completed on October 20, 1999.            On

October 29, 1999, defense counsel prepared a request for

deferment of the reduction in rank and automatic forfeitures.

This request was to allow appellant to continue making child

support payments.     On October 28, the judge authenticated the

record of trial, and on November 2, the SJA completed and

served the recommendation on defense counsel.           The defense’s

request for deferment was not faxed to the legal office until

November 3.    On November 8, 1999, the SJA signed a formal

recommendation to the convening authority recommending

disapproval of the request for deferment.          This

recommendation was not served on defense counsel.            That same

day, the convening authority denied the request, and 11 days

later took action affirming the findings and sentence.

      The failure to seek reconsideration of the deferment

request constitutes waiver.       Foremost, appellant was not

prejudiced since he only had 20 days left to serve in

confinement.    He was married, but his wife was an active duty

servicemember, presumably drawing full pay and allowances.




certainly well intended, they are trying to solve problems through judicial
rule-making that can better and more appropriately be resolved by either the
Legislative or Executive Branch.

                                      3
United States v. Key, No. 01-0646/AF


Because he was only subject to partial forfeitures, the

remainder of his pay could be given to the children.

     While I agree with the majority as to Issue II, I would

apply the common law rule of waiver to Issue I.   This concept is

not new but was echoed by Francis Bacon’s admonition 200 years

ago that judges should not make the law because that is for the

parliament.   1 Selected Writings of Francis Bacon 138 (Modern

Library ed. 1937).




                                 4
United States v. Key, No. 01-0646/AF




     EFFRON, Judge (concurring in part and in the result):

     I concur on Issue I.   I concur in the result on Issue II.

With respect to Issue II, I would rely solely on the second

prong of Strickland v. Washington, 466 U.S. 668, 687 (1984)

(absence of prejudicial error).


     As noted in Judge Baker’s separate opinion, ___ MJ at (2),

the full context of appellant’s affidavit suggests at least one

plausible interpretation that would justify further inquiry as

to whether counsel was ineffective.     Under these circumstances -

- particularly where it is unnecessary to the decision -- there

is no reason to conclude that appellant’s affidavit provides an

inadequate basis to raise a claim of ineffective assistance of

counsel.


     The majority opinion refers to that portion of appellant’s

affidavit in which he stated:


           I do not recall that [my trial defense
           counsel] ever advised me that I could
           request waiver of automatic forfeitures for
           my daughter.

The affidavit, however, contained more than a simple

“I do not recall.”   Appellant added:


           Had I known that I could have requested a
           waiver of automatic forfeitures to be paid
           to [the mother of my child] for the benefit
United States v. Key, No. 01-0646/AF


          of [my child], I would have requested a
          waiver, especially after the deferment
          request was denied. I also would not have
          waived my right to submit additional matters
          in clemency had I known that I could have
          submitted a waiver request after my
          deferment request had been denied.


Viewed in context, appellant’s affidavit constituted more than a

mere absence of memory.   Appellant emphasized that he would not

have waived his right to submit clemency matters, and would have

requested a waiver had he been advised of his right to do so.

This assertion, if unrebutted, would overcome the presumption of

competent counsel.   See United States v. Lewis, 42 MJ 1, 6

(1995).


     The majority opinion also concludes that because the

convening authority denied appellant’s deferment request, there

is no “reasonable likelihood” that he would have granted a

request to waive the automatic forfeitures assessed appellant by

operation of statute. ___ MJ at (8).   Although the basis for

appellant’s prejudice argument -- the need for funds to pay his

daughter’s child support -- is the same with respect to both

deferment and waiver, there are significant differences between

a deferment and a waiver.   They involve separate procedures,

subject to different requirements.   Each is authorized by

separate statutory provisions, and serve distinct, albeit

related, purposes.   See Art. 57(a), Uniform Code of Military


                                 2
United States v. Key, No. 01-0646/AF


Justice (UCMJ), 10 USC § 857(a) (provision governing

deferments); Art. 58b, UCMJ, 10 USC § 858b (provision governing

waivers).


     A critical difference is the fact that an accused is the

beneficiary of a deferment, whereas his or her dependents are

the sole beneficiaries of a waiver.         Compare Art. 57(a)(2) with

Art. 58b(b).   This reflects a deliberate legislative choice.

Convening authorities were empowered by Congress with the

authority to grant waivers specifically to minimize the adverse

effects of automatic forfeitures on dependents.        United States

v. Brown, 54 MJ 289, 292 (2000).        Consequently, it is neither

inconsistent nor improbable for a convening authority to approve

a waiver of automatic forfeitures after denying a deferment

request.    The terms “deferment” and “waiver” are not synonymous,

and we should not treat them as such for purposes of a prejudice

analysis.


                                *       *    *


     In the present case, the staff judge advocate recommended

denying appellant’s deferment request in part because appellant

failed to submit supporting documentation.        Appellant could have

remedied this deficiency in his waiver request and provided the

convening authority with the necessary financial documents.        Our

Court has emphasized that “we will not speculate on what the

                                    3
United States v. Key, No. 01-0646/AF


convening authority might have done” in acting on an accused’s

clemency submission.      Id. (quoting United States v. Chatman, 46

MJ 321, 324 (1997)).      Because we do not know the basis for the

convening authority’s denial of appellant’s deferment request,∗

we should not speculate on what the convening authority might

have done had the requisite documentation been before him.


      In the present case, the deficiency of appellant’s position

is his failure to establish “some colorable showing of possible

prejudice,” the low threshold we have established for post-

trial, clemency-related errors.        See Chatman, supra at 324; see

also United States v. Wheelus, 49 MJ 283, 288-89 (1998).             As

noted in the majority opinion, “[v]ague or general intimations”

as to the “particular nature of the materials that appellant or

counsel would or could have submitted to the convening authority

. . . will not suffice” to sustain a claim of ineffective post-

trial assistance.     United States v. Pierce, 40 MJ 149, 151 (CMA

1994).   Appellant has had two opportunities -- before this Court

and the Court of Criminal Appeals -- to produce the financial

records that he claims would sway the opinion of the convening

authority, and has presented nothing.



∗
  The staff judge advocate cited two reasons in his recommendation to deny
appellant’s deferment request: (1) appellant’s financial status, though
“uncomfortable,” was “self-inflict[ed],” and (2) appellant’s failure to
provide financial documentation demonstrating his inability to support his
dependents.


                                      4
United States v. Key, No. 01-0646/AF


 See Brown, supra at 292-93; see also United States v. Moulton,

47 MJ 227, 230 (1997).




                                5
United States v. Key, No. 01-0646/AF


      BAKER, Judge (concurring in part and in the result):

      I concur on Issue I.   I concur in the result on Issue

II.

      In his affidavit, appellant states: “I do not recall

that [my trial defense counsel] ever advised me that I

could request waiver of automatic forfeitures for my

daughter.”    The majority opinion concludes “[a]ppellant’s

assertion is too equivocal and ambiguous to overcome the

presumption that his counsel were competent.”    _ MJ at (8).

Although a close call, in my view, appellant made a

tentative showing of ineffective assistance of counsel,

which required the Government to rebut or concede the

allegation.

      The import of appellant’s statement is open to debate.

Appellant does not state that counsel did not tell him he

could seek waiver as part of his right to submit matters to

the convening authority under RCM 1105-06, Manual for

Courts-Martial, United States (2000 ed.).    He states that

he does not recall that counsel did so.    On the one hand,

appellant’s choice of language might reflect hesitance on

his part to state as fact something he is confident did not

occur, but may not remember with absolute certainty when

subject to the penalty of perjury.    In other words, he

might be saying that he does not believe something
United States v. Key, No. 01-0646/AF


happened, but he does not recall the precise conversation

at the time.   This interpretation is enhanced when

appellant’s first sentence is read with appellant’s next

sentence:

   I do not recall that [my trial defense counsel] ever
   advised me that I could request waiver of automatic
   forfeitures for my daughter. Had I known that I
   could have requested a waiver of automatic
   forfeitures to be paid . . . for the benefit of [my
   daughter], I would have requested a waiver,
   especially after the deferment request was denied.

(Emphasis added.)

     On the other hand, one might also interpret

appellant’s statement, as the Court of Criminal Appeals

(CCA) did, as conveying uncertainty only as to whether or

not he was advised he could seek waiver.   The CCA concluded

that appellant did not say “that the defense counsel never

advised [him] of the opportunity to request waiver of

forfeitures . . . [only] that he cannot recall whether his

counsel ever advised him of that opportunity.”     The CCA

then observed, “At the risk of seeming unreasonably picky,

that is a big difference.”   55 MJ 537, 545 (2001).    In

other words, appellant might have meant that his counsel

may have told him, or they may not have told him.     That

conveys something less certain than “not recall[ing] that”

they told him.   Based on this adjustment in substance and

tone, the CCA “ ha[d] no difficulty holding the appellant


                              2
United States v. Key, No. 01-0646/AF


to his own words . . . [since] he fail[ed] to allege that

his counsel did not advise him properly.”    55 MJ at 545.

But the CCA did not, in fact, rely on appellant’s own

words, nor did the CCA address the relationship between

appellant’s first sentence and his second sentence in

reaching its conclusion.

     Lawyers and judges, wherever they might stand or sit,

can find sufficient fodder in appellant’s word choice to

craft an argument one way or the other as to the import of

appellant’s words.   My response to the CCA is why be

“unreasonably picky” and semantic when the welfare of a

two-year old dependent is involved and such a factual issue

is easily resolved with little effort?   The Government

could have sought and filed an affidavit from defense

counsel rebutting appellant’s statement.    The Government

could have sought and filed a copy of defense counsel’s

standard post-trial briefing sheet, including reference to

appellant’s right to seek waiver of automatic forfeitures

pursuant to Article 58b(b), Uniform Code of Military

Justice, 10 USC § 858b(b) (assuming one was used).    The

Government could have sought and filed defense counsel’s

memo for the record of their post-trial briefing of

appellant (assuming one was made).   Judge advocates are

prepared to deploy worldwide to afford distant populations


                              3
United States v. Key, No. 01-0646/AF


an opportunity to find security and realize hope.    I am

confident the judge advocates in this case will take ten

minutes to go to the case file to see if appellant was

advised of his opportunity to seek waiver of automatic

forfeitures for his dependent(s).

                               * * *

     That leaves the question whether appellant, in any

event, could have overcome the presumption that his counsel

were competent.   The Government concedes in its brief that

as a general matter, “a trial defense counsel’s failure to

submit a request for deferment or waiver of automatic

forfeitures may constitute ineffective post-trial

representation[.]”   Final Brief at 9.   However, the

Government also concludes that in this case, there is no

possibility of ineffective post-trial assistance because

the military judge did not recommend waiver and appellant

suffered no prejudice since the convening authority had

already considered and declined to defer appellant’s

forfeitures.

     By definition, assessments of prejudice during the

clemency process are inherently speculative.    They address

possibilities relating to a discretionary act of grace.

Therefore, if there is legal prejudice, it must be found in

(1) the failure to afford an appellant an opportunity to


                              4
United States v. Key, No. 01-0646/AF


seek waiver pursuant to his statutory Article 58b(b)

rights, and (2) a colorable showing of possible prejudice,

i.e., some colorable showing that a convening authority

would grant clemency in response to the exercise of that

right.   United States v. Chatman, 46 MJ 321, 324 (1997)

(addressing the standard for post-trial relief where new

matter is introduced without opportunity for accused’s

counsel to comment).   As this Court has often stated, an

accused’s best chance for post-trial clemency is the

convening authority.   United States v. Wheelus, 49 MJ 283,

287 (1998).

     There are good reasons to view requests for waiver of

forfeitures to benefit dependents as less speculative than

other forms of clemency that benefit an appellant.

Dependents may themselves be victims, literally in the case

of abuse, or collaterally in the case of those who are

dependent on the income and benefits associated with the

military service of the convicted servicemember.    While the

clemency decisions of a convening authority may reflect the

anger of the community at an appellant’s offenses, they may

also reflect the care and humanity of the military for

those genuinely and innocently in need, including

dependents.   Appellant may only have thought of his or her

dependents upon conviction, but the command is free to


                              5
United States v. Key, No. 01-0646/AF


think of them before and after conviction as members of the

military community and family.    That is what Congress

intended in providing statutory authority to convening

authorities to waive forfeitures and provide pay and

allowances to the dependents of the accused.    Art. 58b(b).

     Accepting the general argument, the immediate question

is whether the convening authority’s earlier denial of

deferment of forfeitures in this case removes the potential

for prejudice in appellant’s case.    On October 29, 1999,

defense counsel requested a deferment of rank reduction and

forfeitures on behalf of appellant to “allow him to

continue meeting his child support duties for his 2-year

old daughter.”   Counsel noted that “[h]e has faithfully

upheld his child support duties over the past two years and

the mother of his daughter relies on it to take care of

their daughter,” and that “[i]f this request is granted,

A1C Key will be able to receive a higher amount of pay for

a longer period of time and thus be able to meet his child

support obligation.” (Appellant’s affidavit states that he

provided $321 per month in child support.)

     On November 8, the Staff Judge Advocate (SJA)

recommended disapproval of this request, stating, inter

alia:




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United States v. Key, No. 01-0646/AF


     . . . the defense asserts that a delay would allow him
     to continue meeting child support duties for his 2-
     year old daughter.

          Albeit A1C Key’s financial situation is in itself
     uncomfortable, the fact remains that A1C Key’s
     situation is one of self-infliction. Likewise, in
     regard to his inability to provide financial support
     for his dependents, A1C Key did not attach financial
     statements or any other supporting evidence to
     substantiate his request.


The convening authority denied the deferment request the

same day.    Appellant subsequently waived his right to

submit further clemency matters; however, appellant later

declared that “[h]ad [he] known that [he] could have

requested a waiver of automatic forfeitures to be paid . .

. for the benefit of [his daughter, he] would have

requested a waiver, especially after the deferment request

was denied.”    Appellant also stated that “[h]ad [he] known

that the Staff Judge Advocate based his denial

recommendation on the lack of proof that [he] needed the

money both to support [his] daughter [and] to meet [his]

other financial obligations, [he] would have provided

additional matters with a request for waiver.”*           Id.




*
 The record does not reflect that the SJA’s recommendation on deferment
was provided to appellant at the time the convening authority acted,
and this Court has heretofore not found such a requirement for notice
and an opportunity to be heard regarding an SJA’s recommendation on
deferment. See United States v. Brown, 54 MJ 289, 291-92 (2000).



                                   7
United States v. Key, No. 01-0646/AF


     There are good reasons why a convening authority might

provide a waiver of forfeitures to an A1C appellant for the

benefit of a two-year dependent, whether or not child

support requirements were in place and met.    Such a

dependent might well have financial needs beyond $321 a

month.   And, such a child might well face extraordinary

expenses as his or her source of child support transitions

from the military to civilian society on the strength of a

bad-conduct discharge.

     Nonetheless, I agree with the majority.   In light of

this convening authority’s decision on deferment, which was

made with knowledge that appellant, an A1C, had a two-year

old dependent, there seems no colorable possibility that

this convening authority would have granted clemency relief

to appellant had he submitted a request for waiver of

forfeitures or specific documentation of financial need,

beyond the general assertion already contained in his

deferment request.

                               * * *

     In sum, I agree with the Government’s brief:   “[A]

trial defense counsel’s failure to submit a request for

deferment or waiver of automatic forfeitures may constitute

ineffective post-trial representation[.]”   The tie does not

go to the appellate runner when it is the appellant that


                              8
United States v. Key, No. 01-0646/AF


bears the burden of persuasion.   In this case, appellant

made a marginal showing that he was not informed of his

right to seek waiver on behalf of his dependents, which

should have been addressed by the Government and CCA with

more than word-smithing.   Therefore, if resolution of this

case depended on prong I of Strickland v. Washington, 466

U.S. 668 (1984), I would have remanded this case for

further fact-finding regarding appellant’s allegation of

ineffective assistance of counsel.   Nonetheless, for the

reasons stated above, applicable only to this case and the

actions of this convening authority, appellant has not

carried his burden on Strickland prong II prejudice.

Therefore, I concur in the result the majority reaches on

Issue II.




                              9
United States v. Key, No. 01-0646/AF


    SULLIVAN, Senior Judge (concurring in part and in the
result):

    I agree with the resolution of Issue II on the basis that

appellant failed to meet his burden to establish ineffective

assistance of counsel.   On Issue I, however, I would hold that

there was no error in this case.

    An adjudged reduction in grade and automatic forfeitures both

take effect on the earlier of-

          (A)   the date that is 14 days after the date on which
                the sentence is adjudged; or

          (B)    the date on which the sentence is approved by     the
                convening authority.

Articles 57(a)(1) and 58b(a)(1), Uniform Code of Military Justice

(UCMJ), 10 USC §§ 857(a)(1) and 858b(a)(1).

    A military accused, however, can ask the convening authority

to defer (or postpone) these punishments until the convening

authority approves the sentence.    Articles 57(a)(2) and

58b(a)(1), UCMJ.   Neither Article 57 or 58b provides for a staff

judge advocate advice on such a request (but cf. Article 6(b),

UCMJ, 10 USC § 806(b)) or, more importantly, for service of such

advice on a military accused.    Cf. Article 60(d), UCMJ, 10 USC

§ 860(d) (providing for service on the accused of the

recommendation of the staff judge advocate for final action by

convening authority).

    In my view, Congress has spoken on the granted issue.    It

was well aware of the temporary nature of deferment (see Article

57a(a), UCMJ, 10 USC § 857a(a)) and chose to provide a
United States v. Key, No. 01-0646/AF

streamlined process suited to immediate action by a convening

authority unencumbered by the process afforded the accused with

respect to a final action.   The President, in RCM 1101(c), Manual

for Courts-Martial, United States (1998 ed.), has further

delineated the procedure pertaining to deferment by the convening

authority, but he too has not required service of advice by the

staff judge advocate on the military accused.   In view of the

nature of this right (a form of temporary clemency) and the need

for immediate action, I see no constitutional defect in this

military legal procedure.    See generally United States v.

Scheffer, 523 U.S. 303 (1998)




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