UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                   Private First Class CAESAR A. LAUREANO
                          United States Army, Appellant

                                   ARMY 20110957

                      Headquarters, III Corps and Fort Hood
                         Gregory A. Gross, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Major Candace N. White Halverson, JA
(on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain Sean P. Fitzgibbon, JA (on brief).


                                    14 January 2013
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of absence without leave that was terminated by apprehension
in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C. § 886 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for forty-five days, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the sentence and
credited appellant with one day of confinement credit.

       Appellant’s sole assignment of error for our review under Article 66, UCMJ,
is an allegation that he was denied effective assistance of counsel in the post-trial
phase of his court-martial. Prior to the convening authority’s action in this case, the
only clemency matter submitted pursuant to Rules for Courts-Martial 1105 and 1106,
was a two-page memorandum signed by the defense counsel. This memorandum
requested that appellant receive a discharge in lieu of courts-martial under the
LAUREANO—ARMY 20110957

provisions Army Reg. 635-200, Personnel Separations: Enlisted Personnel
[hereinafter AR 635-200], Ch. 10 (6 June 2005) (i.e., a “Chapter 10 request”).
However, there was no separate Chapter 10 request document signed by appellant,
nor is there an indication whether appellant desired to personally submit matters
along with the request. This is inconsistent with the provisions of AR 635-200. *
More importantly, the absence of a properly completed and regulatory compliant
Chapter 10 request defeated any realistic possibility that the convening authority
might choose to administratively separate appellant. The convening authority’s only
option at action in this case regarding appellant’s separation or discharge from the
service was to approve or disapprove the punitive discharge. As relief, appellant
asks for a new opportunity to submit a post-trial Chapter 10 request.

       We have concerns not only with the trial defense counsel’s non-compliance
with the regulation, but also that there this is no mention in the staff judge
advocate’s addendum addressing the irregularity. The staff judge advocate merely
stated that appellant, through his defense counsel, requested clemency by approval
of a discharge under Chapter 10 of AR 635-200 and adhered to his recommendation
that the convening authority approve the sentence as adjudged. A more prudent
course of action for the staff judge advocate would have been to raise the
irregularity with the trial defense counsel and have it corrected, or alternatively,
note the irregularity in the addendum and serve that on defense counsel, if
necessary.

       Our superior court has noted that an accussed’s best chance for clemency rests
with the convening authority. United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F.
1998); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). In addition,
“the convening authority’s obligation to consider defense submissions is uniquely
critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 (C.A.A.F. 1997).
In this case, appellant was denied the opportunity to fully present matters and
receive meaningful consideration of his clemency request. See United States v.
Fordyce, 69 M.J. 501, 504 (Army Ct. Crim. App. 2010). On these facts, we find
appellant made a “colorable showing of possible prejudice,” Wheelus, 49 M.J. at
289, warranting a new review and action.

                                  CONCLUSION

      The convening authority’s initial action, dated 23 March 2012, is set aside.
The record of trial will be returned to The Judge Advocate General for a new staff
judge advocate recommendation and a new action by the same or different convening
authority in accordance with Article 60(c)–(e), UCMJ. In addition, appellant will
receive assistance from a new defense counsel.
*
  We distinguish this from an accused’s generalized request for an administrative
discharge, which would not mandate a particular form accompany the request.


                                          2
LAUREANO—ARMY 20110957


                          FORTHE
                         FOR  THE COURT:
                                 COURT:




                         MALCOLM
                          MALCOLMH.H.SQUIRES,
                                          SQUIRES,JR.
                                                    JR.
                         Clerk
                          Clerkofof
                                  Court
                                    Court




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