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

                           UNITED STATES, Appellee
                                        v.
                         Specialist CHANDLER W. DEAN
                          United States Army, Appellant

                                  ARMY 20140058

         Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                        Wade N. Faulkner, Military Judge
               Colonel Mark W. Seitsinger, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Robert N. Michaels, JA; Captain
Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain
Carling M. Dunham, JA (on brief).


                                  10 February 2015
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                               OPINION OF THE COURT
                              ---------------------------------

LIND, Senior Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of two specifications of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 934 (2006). The military judge sentenced appellant to a bad-conduct
discharge, confinement for seven months, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.

        This case is before the court for review under Article 66, UCMJ. Appellant
raises one assignment of error, which merits discussion but not relief. We have also
considered those matters personally submitted by appellant pursuant to United States
v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find one which merits discussion and
relief.
DEAN—ARMY 20140058

       Staff Judge Advocate’s Advice and Convening Authority’s Action on
    Appellant’s Request for Deferment and Waiver of Automatic Forfeitures and
                    Deferment of Adjudged Reduction in Grade

        Appellant was sentenced on 15 January 2014. Appellant was subject to
automatic forfeiture of all pay and allowances effective 29 January 2014 because his
sentence included more than six months confinement. See UCMJ arts. 58b(a),
57(a). 1 Appellant’s Expiration Term of Service (ETS) was 11 February 2014.

       On or about 5 March 2014, appellant submitted a memorandum to the
convening authority (CA) titled “Request for Deferment/Waiver of Automatic
Forfeitures and Reduction in Rank, US v. Dean,” wherein he requested retroactive
deferment and waiver of automatic forfeitures and the deferment of adjudged
reduction in grade 2:

             [Appellant] specifically requests that any waiver/deferment
             that is granted be utilized for the benefit of providing for
             his elderly mother . . . . [Appellant’s mother] is a widow
             who currently resides alone . . . . [Appellant] assisted in
             the financial support of his mother prior to his Court-
             Martial. Knowing that she suffers from diabetes and that
             the cost of her medications is of great concern due to her
             fixed income, [appellant] would like to continue to assist in
             her financial stability even if it is for a limited period of
             time.

In the memorandum, appellant also requested that the CA grant a deferment of the
adjudged reduction in grade: “The defense requests that you grant the deferment of
the adjudged reduction in rank and the deferment of automatic forfeitures for a
mother with minimal means.” 3

1
  Articles 58b(a)(1) and 57(a)(1), UCMJ, read together provide that automatic
forfeitures take effect on the earlier of fourteen days after the date on which
sentence is adjudged or the date on which the sentence is approved by the CA. In
this case, the CA took action on appellant’s case on 19 March 2014, well past
fourteen days after sentence was adjudged.
2
 The memorandum was submitted contemporaneously with appellant’s Rule for
Courts-Martial [hereinafter R.C.M.] 1105 matters.
3
 The adjudged reduction in grade was also effective fourteen days after the sentence
was adjudged. See UCMJ art. 57(a).




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DEAN—ARMY 20140058

        In the addendum dated 19 March 2014, the Staff Judge Advocate (SJA)
acknowledged appellant’s request for retroactive deferment and waiver of automatic
forfeitures to be paid to appellant’s mother for financial support , advised the CA
that no corrective action was required, and recommended that he approve the
adjudged sentence. The SJA did not provide any reasons why the CA should or
should not approve appellant’s request for deferment and waiver of automatic
forfeitures. The addendum was silent as to appellant’s request for deferment of the
adjudged reduction in grade. Appellant’s 5 March 2014 request for deferment and
waiver of automatic forfeitures and deferment of the adjudged reduction in grade
was an enclosure to the addendum. On 19 March 2014, the CA signed a document
titled “Direction of the Convening Authority,” which stated: “After reviewing the
Addendum to the Staff Judge Advocate’s Post -Trial Recommendation and each of
the enclosures listed therewith, the recommendation of th e Staff Judge Advocate
dated 19 March 2014 is: approved.”

       Appellant’s assignment of error has t wo parts. First, appellant avers the
record is insufficient to show the CA took action on appellant’s 5 March 2014
request for deferment of automatic forfeit ures and adjudged reduction in grade and
waiver of automatic forfeitures. While the SJA’s addendum referenced appellant’s
request for deferment and waiver of automatic forfeitures, the SJA recommended
that no corrective action was required and that the CA approve the adjudged
sentence. The SJA made no recommendation regarding whether appellant’s request
for deferment and waiver of automatic forfeitures should be granted or denied. The
addendum did not reference appellant’s request for deferment of adjudg ed reduction
in grade. The CA approved the SJA’s recommendation. Second, appellant argues
that even if the CA acted on appellant’s request for deferment, the action was not in
accordance with United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), because the CA
did not include the reasons why he denied appellant’s request for deferment of
automatic forfeitures and adjudged reduction in grade. Appellant alleges he has
established a colorable showing of possible prejudice because the errors by the SJA
and the CA’s failure to act upon and potentially grant appellant’s request resulted in
financial loss to his mother. Appellant asks that we send his case back to the CA for
a new review and action.

       The government argues the SJA’s statement in the addendum that no
corrective action is required and his recommendation that the CA approve the
adjudged sentence was an implicit recommendation that the CA disapprove
appellant’s request for deferment and waiver of automatic forfeitures . The
government further argues that the CA’s summary denial of deferment and waiver
without a detailed analysis was not error. Finally, the government avers appellant
failed to clearly request deferment of the adjudged reduction in grade because
appellant’s memorandum referenced only a request for deferment of the adjudged
reduction in grade in the subject block and towards the end of the memorandum and,




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DEAN—ARMY 20140058

perhaps, the request was a typographical error from a different request for
clemency. 4

       We find that appellant’s request for deferment of the adjudged reduction in
grade was clear and unequivocal. It was in appellant’s interest to request deferment
of the adjudged reduction in grade to maximize the retroactive deferment of
automatic forfeitures if approved by the CA. If the convening authority had
retroactively deferred automatic forfeitures and deferred appellant’s adjudged
reduction in grade, appellant would have received pay and allowances at the E -4 rate
rather than the E-1 rate during the period of deferment.

      We further find the record sufficiently reflects the CA reviewed, considered,
and acted on appellant’s 5 March 2014 request for retroactive deferment of
automatic forfeitures, waiver of automatic forfeitures, and retroactive deferment of
adjudged reduction in grade. The SJA enclosed a copy of appellant’s request with
the addendum. The CA stated in writing that he reviewed each of the enclosures to
the addendum. 5

       We now analyze whether the CA erred in failing to set forth a specific basis
for denying appellant’s request for deferment of automatic forfeitures and the
adjudged reduction in grade.

       Rule for Courts-Martial 1101(c) authorizes a CA, in his discretion, to grant or
deny a request to defer a sentence to confinement , forfeitures, or reduction in grade.
The decision of the CA shall be in writing with a copy provided to the accused.
R.C.M. 1101(c)(3). The CA’s decision is reviewed by appellate courts for an abuse
of discretion. R.C.M. 1101(c)(3). Although R.C.M. 1101(c) does not require the
CA to set forth reasons for his decision, our superior court held that when a CA
“acts on an accused’s request for deferment of al l or part of an adjudged sentence,

4
  The government posits that appellant failed to establish that appellant’s mother was
a qualified dependent eligible to receive waived forfeitures. See R.C.M. 1101(d)(3);
37 U.S.C. § 401. We agree.
5
  We note appellant’s request for retroactive deferment of adjudged reduction in
grade was intended to maximize the amount of forfeitures available for appellant to
support his mother. Despite the SJA’s failure to specifically reference appellant’s
request for deferment of the adjudged reduction in grade in the addendum, such a
deferment would have added nothing in financial support for appellant’s mother
given that the CA denied appellant’s request for retroactive deferment of automatic
forfeitures. Appellant offered no other basis in support of his request to defer his
adjudged reduction in grade.




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DEAN—ARMY 20140058

. . . [the CA] must include the reasons” for either granting or denying the accused’s
request for deferment. Sloan, 35 M.J. at 7; see also R.C.M. 1101(c)(3) discussion
(“If the request for deferment is denied, the basis for the denial should be in writing
and attached to the record of trial.”). 6 Our court has applied the requirement for the
CA to include reasons when acting on a request to defer automatic forfeitures
pursuant to R.C.M. 1101(c). United States v. Zimmer, 56 M.J. 869 (Army Ct. Crim.
App. 2002). 7

       The CA summarily denied appellant’s request for deferment of automatic
forfeitures and adjudged reduction in grade. This was error. See id. at 874.
However, a CA’s failure to include reasons for denial does not entitle appellant to
relief absent credible evidence that the CA’s denial was for unlawful or improper
reasons. Id. Appellant must make a “colorable showing of possible prejudice ” that
the CA would have granted the deferment absent consideration of the unlawful or
improper reason. Id. (citing United States v. Wheelus, 49 M.J. 283, 289 (1998)).




6
  Sloan was decided prior to Congressional amendments to the Uniform Code of
Military Justice authorizing automatic forfeitures and Presidential amendments to
the Manual for Courts-Martial implementing rules regarding deferment and waiver
of automatic forfeitures. See Manual for Courts-Martial, United States [hereinafter
MCM] (2012 ed.), App’x 21, R.C.M. 1101(c)-(d) analysis, at A21-83.
7
  Unlike deferments, R.C.M. 1101(d) does not provide for abuse of discretion review
of a CA’s decision regarding waiver of automatic forfeitures. Both the Navy
Marine-Corps Court of Criminal Appeals and the Air Force Court of Criminal
Appeals have held there is no requirement for a CA to state reasons for denying a
request to waive automatic forfeitures. See United States v. Quintin, 47 M.J. 798,
801 (N.M. Ct. Crim. App. 1998); United States v. Gentry, ACM S31361, 2008 CCA
LEXIS 454, at *9 (A.F. Ct. Crim. App. 30 Oct. 2008). Our court in Zimmer noted
the President has not directed that a CA’s denial of waiver of automatic forfeitures
be in writing, served on the accused, or subject to judicial review and cited to
Quintin’s holding that the CA is not required to state reasons for denying a request
to waive automatic forfeitures. Zimmer, 56 M.J. at 872 n.4. We note that the
Secretary of the Army requires the CA to show in the action any deferment of
adjudged or automatic forfeitures, any deferment of automatic reduction in grade,
and any waiver of automatic forfeitures. See Army Reg. 27-10, Legal Services:
Military Justice [hereinafter AR 27-10], paras. 5-32.a, 5-29.e (3 Oct. 2011). If the
CA has approved waiver of automatic forfeitures for a qualified dependent, the
action must identify the person who will be receiving the waived forfeitures. See
AR 27-10, para. 5-32.a.




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DEAN—ARMY 20140058

      In this case, appellant makes no suggestion and there is no evidence that t he
convening authority denied appellant’s request for retroactive defer ment of
automatic forfeitures and adjudged reduction in grade for any unlawful or improper
reason. Appellant has not established a colorable showing of possibl e prejudice to
warrant relief.

       Providence of appellant’s plea to conduct that is service discrediting
         and prejudicial to good order and discipline in the armed forces

       We now turn to appellant’s allegation pursuant to Grostefon that he was not
provident to Specifications 1 and 2 of the Charge because he did not describe nor
understand how his conduct was service discrediting or prejudicial to good order and
discipline in the armed forces. The government agrees with appellant that he was
not provident to the portion of the terminal element pertaining to prejudice to good
order and discipline in the armed forces, but argues that appellant providently pled
to service discrediting conduct.

       Each specification of possession of child pornography alleged appellant’s
conduct was in violation of clause 1 (conduct prejudicial to good order and
discipline in the armed forces) or clause 2 (conduct of a nature to bring discredit
upon the armed forces) of Article 134, UCMJ. “Conduct prejudicial to good order
and discipline is conduct that causes a reasonably direct and palpable injury to good
order and discipline.” United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006);
see also MCM (2008 ed.), pt. IV, ¶ 60.c.(2)(a). Conduct that is service discrediting
is conduct that “tend[s] to bring the service into disrepute if it were known.” United
States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011); see also MCM (2008 ed.),
pt. IV, ¶ 60.c.(3).

       We accept the government’s concession and hold there is a substantial basis in
law and fact to question appellant’s pleas of guilty to conduct that was prejudicial to
good order and discipline in violation of clause 1 of Article 134, UCMJ . See United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991)); see also UCMJ art. 45(a); R.C.M. 910(e).
The stipulation of fact is silent as to this portion of the element and the military
judge did not elicit an adequate factual basis during the colloquy with appellant to
support his pleas to committing conduct prejudicial to good order and discipline.
We are satisfied, however, that appellant’s descriptions of the service discrediting
nature of his conduct during the colloquy evidenced his understanding, knowing, and
voluntary admission that his conduct was of a nature to bring di scredit upon the
armed forces.




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DEAN—ARMY 20140058

                                   CONCLUSION

       We affirm only so much of the findings of guilty of the Charge and its
specifications as provide:

             SPECIFICATION 1: In that Specialist (E-4) Chandler W.
             Dean, US Army, did, on or about 23 May 2011 and 02
             June 2011, at or near Fort Sill, Oklahoma, wrongfully and
             knowingly possess 20 images and 3 videos of child
             pornography on his laptop, which conduct was of a natu re
             to bring discredit upon the Armed Forces.

             SPECIFICATION 2: In that Specialist (E-4) Chandler W.
             Dean, US Army, did, on or about 23 May 2011 and
             02 June 2011, at or near Fort Sill, Oklahoma, wrongfully
             and knowingly possess 2 videos of child pornography on
             his cellphone, which conduct was of a nature to bring
             discredit upon the Armed Forces.

       Reassessing the sentence on the basis of the error s noted, the entire record,
and in accordance with the principles set forth in United States v. Winckelmann,
73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986), the sentence is AFFIRMED. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of the findings set aside
by this decision, are ordered restored.

      Judge KRAUSS and Judge PENLAND concur.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




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




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