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

                           UNITED STATES, Appellee
                                        v.
                         Sergeant JUSTIN R. CROWELL
                          United States Army, Appellant

                                  ARMY 20120184

                             Headquarters, Fort Carson
                          Mark A. Bridges, Military Judge
                   Colonel John S.T. Irgens, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain A. Jason Nef,
JA; Captain J. Fred Ingram, JA (on brief); Colonel Kevin Boyle, JA; Major Amy E.
Nieman, JA; Captain Timothy J. Kotsis, JA (on reply brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Steve T. Nam, JA (on brief).


                                    18 March 2014

                              ---------------------------------
                               SUMMARY DISPOSITION
                              ---------------------------------

Per curiam:

       A military judge sitting as a special court -martial convicted appellant,
pursuant to his pleas, of failure to report to his appointed place of duty; absence
without leave for a period of over 30 days terminated by apprehension; willful
disobedience of a superior commissioned officer; violation of a lawful general
regulation; and wrongful receipt of stolen property (five specifications) in violation
of Articles 86, 90, 92, and 134, 10 U.S.C. §§ 886, 892, 890, and 934, Uniform Code
of Military Justice (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for eight months, and reduction to
the grade of E-1. The convening authority approved the adjudged sentence and
credited appellant with 113 days of confinement against the sentence to confinement.
CROWELL — ARMY 20120184

       This case is before the court for review under Article 66, UCMJ. Upon
review of appellant’s assignments of error and those matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we
find only one issue merits discussion and relief.

       In his first assignment of error, appellant argues he was denied effective
assistance of counsel during the post -trial phase of his court-martial when his
defense counsel failed to request deferment or waiver of automatic forfeitures.
Appellant asks us to return his case to the convening authority for a new
recommendation and action because appellant “was deprived of an opportunity to
request and potentially receive meaningful clemency for his and/or his dependents’
benefit.” Both appellant and trial defense counsel submitted affidavits before this
court. Upon our review of the entire record, to include the appellate filings, we are
not convinced appellant was “afforded a full opportunity to present matters to the
convening authority prior to his action on the case.” See United States v. Fordyce,
69 M.J. 501, 503-04 (Army Ct. Crim. App. 2010) (en banc). We therefore find a
sufficient basis to warrant a new recommendation and action so that appellant may
present any request for deferment or waiver of automatic forfeitures.

       Appellant’s approved sentence did not include any forfeiture of pay, but it did
include a sentence to confinement for more than six months. Thus, by operation of
Article 58b(a), UCMJ, appellant was subject to automatic forfeitures of two -thirds
pay during his period of confinement. Appellant’s confinement began on
27 February 2012, and the automatic forfeitures became effective fourteen days later
on 12 March 2012. See UCMJ art. 58b(a)(1) (citing UCMJ art. 57(a)). Appellant
was released from confinement on 24 May 2012. On 26 July 2012, the convening
authority took action on appellant’s case.

       Our remand leaves the convening authority with the option to grant a
retroactive deferment or waiver of the automatic forfeitures for the benefit of
appellant or his family. See United States v. Nicholson, 55 M.J. 551, 552 n.4 (Army
Ct. Crim. App. 2001). For every day of approved deferment or waiver between
12 March 2012 and 24 May 2012, appellant or his family could be entitled to the
two-thirds pay previously forfeited at his reduced pay grade of E-1. See UCMJ art.
58b(a)(1)-(b).

       The action of the convening authority, dated 26 July 2012, is set aside. The
record of trial will be returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation (SJAR) and a new action by the same or a
different convening authority in accordance with Article 60(c) -(e), UCMJ.
Appellant should also receive a newly-appointed defense counsel to assist with the
preparation of his clemency matters.




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CROWELL — ARMY 20120184


                          FOR
                          FOR THE
                              THE COURT:
                                  COURT:



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




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