UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            COOK, CAMPANELLA, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                           v.
                           Specialist LUIS RODRIGUEZ III
                            United States Army, Appellant

                                     ARMY 20120063

         Headquarters, U.S. Army Medical Department Center and School
                         Patricia H. Lewis, Military Judge
      Lieutenant Colonel Jonathan E. Cheney, Staff Judge Advocate (pretrial)
     Lieutenant Colonel Randolph Swansiger, Staff Judge Advocate (post-trial)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Katherine S. Gowel,
JA; Captain Sean P. Fitzgibbon, JA (on brief).


                                    19 December 2013

                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Senior Judge COOK:

       A general court-martial composed of officer and enlisted me mbers convicted
appellant, contrary to his plea, of one specification of assault consummated by a
battery, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. §
928 (2006) [hereinafter UCMJ]. Appellant was acquitted of two additional
specifications of assault consummated by a battery. The convening authority
approved the adjudged sentence of a reprimand, a bad -conduct discharge, and
reduction to the grade of E-1. This case is before us for review pursuant to Article
66, UCMJ.
RODRIGUEZ—ARMY 20120063

      Appellant raised one error to this court that merits discussion but no relief. 1

                                   BACKGROUND

       The assigned error contains an allegation that appellant was denied effective
assistance of counsel during the post-trial portion of his court-martial because his
trial defense counsel failed to request that the convening authority defer appellant’s
adjudged reduction in grade until action. Pursuant to Art icle 57, UCMJ, a reduction
in grade takes effect either 14 days after being adjudged at court -martial or at action,
whichever happens sooner. However, upon request, a convening authority can defer
a reduction in grade until a sentence is approved. There is n either evidence in the
record that a deferment request was submitted on appellant’s behalf nor is there
evidence in the record that appellant’s reduction was deferred.

       Appellant cites to a Defense Counsel Assistance Program (DCAP) Post -Trial
and Appellate Rights (PTAR) form, as proof that he wanted his trial defense counsel
to petition the convening authority to defer appellant’s adjudged reduction in grade
until action. A review of appellant’s PTAR reveals that on the fourth page appellant
indicated he desired a deferment of an adjudged reduction in rank. Appellant signed
the PTAR on 17 January 2012, the day before his trial began. The PTAR was
admitted as Appellate Exhibit IX.

      In addition, appellant submitted a post -trial affidavit wherein he stated:

             I was court-martialed on 18 and 19 January 2012.
             Pursuant to the court-martial proceedings, I
             completed an appellate rights information worksheet.
             I expressed my desire to request deferment of
             reduction in rank if I was sentenced to a reduction.
             I was not sentenced to confinement and remained on
             active duty for at least six months after sentencing.
             I was on active duty up to and during the time the
             convening authority [took] action on my case.
             My attorney never requested deferment on my behalf.
             As a result, my pay was reduced to E-1 during this
             period, which caused great financial difficulty.

       In response to this allegation of ineffective assistance of counsel and pursuant
to an order by this court, appellant’s two trial defense counsel, Captain (CPT) DM 2



1
 Appellant personally raised additional matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merit discussion or relief.


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RODRIGUEZ—ARMY 20120063

and CPT JM both submitted affidavits. Both counsel readily concede a request for
deferment of reduction was not submitted on appellant’s behalf to the convening
authority, but state this is only part of the story. Specifically, although counsel
encouraged appellant to make an affirmative choice concerning reduction deferment
on his PTAR, this decision took place before appellant was tried, convicted and
sentenced. Counsel direct this court’s attention to what was submitted as clemency
matters on behalf of appellant to understand appellant’s true p ost-trial strategy.

       These post-trial matters, submitted pursuant to R ules for Courts-Martial
[hereinafter R.C.M.] 1105 and 1106, include appellant’s personal request, dated 24
April 2012, that he receive a post-trial administrative discharge pursuant to Chapter
10, Army Regulation (AR) 635-200, in lieu of court-martial. Under the terms of
appellant’s request for a Chapter 10 discharge , appellant would have been reduced to
E-1 and his discharge characterization could have been under Other than Honorabl e
conditions. See AR 635-200, paras. 1-13 and 10-8. In his cover memorandum to
this request, CPT DM emphasizes three times in the second paragraph that appellant
had been reduced in rank as a result of his court-martial conviction.

             [Appellant] has spent the last three months as an E-1.
             [Appellant] is an excellent Soldier and performed his
             duties well and despite being reduced he has continued
             to Soldier on, working hard as a valuable member of
             his unit. After the military, [appellant] intends to go to
             school and obtain civilian employment. Since his
             reduction in rank, saving for college and life after the
             Army is inevitably difficult.

(emphasis added).

       In his affidavit, CPT DM stated that based on appellant’s sentence, which
contained no adjudged forfeitures or confinement, defense’s post-trial strategy
emphasized having appellant’s conviction and bad -conduct discharge disapproved.
The requested discharge in lieu of court -martial included an automatic reduction in
grade to E-1. Therefore, to increase the chances of having their request approved,
CPT DM explained to appellant than any other request regarding grade reduction
should not be submitted.

       Attached to appellant’s signed request for a discharge in lieu of court -martial
is a memorandum signed by appellant that states in part:



2
 Captain DM was promoted to Major after appellant’s court -martial and signed his
post-trial affidavit as Major DM. For simplicity p urposes, we will refer to him as
Captain DM throughout this opinion.


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RODRIGUEZ—ARMY 20120063

             I [,] Private Rodriguez III, Luis[,] am requesting a
             post-trial chapter 10 due to the hardship of finding
             a job as a civilian with a conviction and a bad
             conduct discharge. The bad conduct discharge will
             [effect] my benefits from the GI Bill to [Veterans
             Affairs benefits]. With a federal conviction it will
             be difficult to obtain employment and go to school.

             ….

             In transitioning to the civilian world of life, I have to
             support myself…. As I stated during the court -martial,
             I am sorry for what I did and this whole experience
             was a learning experience. Please consider my request
             for [a] post-trial chapter 10.

      In his personal memorandum, appellant neither mentions his adjudged grade
reduction nor a desire to have the convening authority defer or disapprove his
reduction. Neither appellant nor appellant’s counsel have provided matters in
response to the affidavits submitted by CPT DM or CPT JM.

                              LAW AND DISCUSSION

       The sixth amendment guarantees an accused the right to the effective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)
(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). In the military,
this guarantee extends to assistance with the post -trial phase of a court-martial.
United States v. Lee, 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims
that an appellant did not receive the effective assistance of counsel. United States v.
Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009).

       “In assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).”
Gooch, 69 M.J. 361. To overcome the presumption of competence, the Strickland
standard requires an appellant to demonstrate “both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466
U.S. at 687).

     This Court applies a three-part test to determine whether the presumption of
competence has been overcome:

         1. Are the allegations true, and, if so, is there any reasonable



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RODRIGUEZ—ARMY 20120063

         explanation for counsel’s actions?

         2. If the allegations are true, did counsel’s performance fall
         measurably below expected standards?

         3. Is there a reasonable probability that, absent the errors,
         there would have been a different out come?

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). In the context of a post -trial
claim for ineffectiveness, our superior court has modified the third step, requiring
only that there be some “colorable showing of possible prejudice.” Lee, 52 M.J. at
53 (citing United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

       When assessing Strickland’s first prong, courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. When challenging the
performance of trial defense counsel, the appellant “bears the burden of establishing
the truth of the factual allegations that would provide the basis for finding deficient
performance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation
omitted).

       Because appellant and counsel have filed post -trial affidavits that to some
extent conflict, pursuant to United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), we
have analyzed whether a post-trial evidentiary hearing is required. After applying
the fourth Ginn principle, we find such a hearing is not required in this case.
Although appellant’s affidavit is factually adequate on its face, in accordance with
the fourth Ginn principle, “the appellate filings and the record as a whole
‘compellingly demonstrate’ the improbability of those facts” and therefore we may
“discount those factual assertions and decide the legal issue.” Ginn, 47 M.J. at 248.

       In his post-trial affidavit, appellant directs our attention to his PTAR as
definitive proof that he desired his trial defense counsel submit a request for a
deferment of grade reduction to the convening authority. His appellate counsel
characterize appellant’s election on his PTAR as indicating th at appellant
“unequivocally” had requested his trial defense counsel to submit this deferment
request to the convening authority.

       Both appellant and counsel fail to address appellant’s post-trial submission of
a request for discharge in lieu of court-martial (specifically acknowledging an
automatic grade reduction to E-1), as well as appellant’s supporting memorandum
containing no mention of appellant’s purported desire that his grade reduction be
deferred. If appellant were genuinely seeking a deferral of his grade reduction from
the convening authority, why would his own clemency matters to the convening
authority not address this issue?



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RODRIGUEZ—ARMY 20120063

       Captain DM plausibly explains this issue in his affidavit. The deferment
request was not made because the main focus of appellant’s clemency submissions
was not deferment of grade reduction, but rather the elimination of appellant’s
punitive discharge and criminal conviction. As demonstrated in CPT DM’s R.C.M.
1105 and 1106 memorandum, the reduction in grade was highlighted in part to
convince the convening authority that appellant had been sufficiently punished and
to make the discharge in lieu of court -martial more palatable. Moreover, appellant’s
accompanying memorandum in support of this discharge request compellingly
demonstrates that he had approved of this clemency strategy in lieu of pursuing a
deferment of reduction. As such, the appellant has failed to show “that counsel’s
performance was deficient.” Strickland, 466 U.S. at 687.

       In addition, even if any and all factual disputes were resolved in appellant’s
favor and trial defense counsel were deficient in not submitting a grade reduction
deferment on his behalf, appellant has failed to establish that this deficiency resulted
in prejudice. See Strickland, 466 U.S. at 687. Although in his post-trial affidavit
appellant alleges his reduction to E-1 “caused great financial difficulty,” appellant
articulates no specifics as to what this difficulty was, or why the convening
authority would have approved his request to defer his reduction in grade due to
financial difficulties.

       On the contrary, the record reflects that appellant was a single soldier with no
dependents at the time of trial. Neither appellant nor any of the pre -sentencing
witnesses who testified on his behalf indicated that appellant or his family would
suffer a financial hardship as a result of the grade reduction. When he testified,
appellant requested he not be confined or discharged from the service. Appellant
has submitted no matters other than his post-trial affidavit that would support a
convening authority approving his deferment of grade reduction request. We
therefore do not find any “reasonable probability of a more favorable action by the
convening authority” absent counsel’s deficiency, United States v. Clemente, 51 M.J.
547, 551-52 (Army Ct. Crim. App. 1999), and conclude that appellant has failed to
make “some colorable showing of possible prejudice.” Lee 52 M.J. at 53 (C.A.A.F.
1999) (citation omitted).

                                   CONCLUSION

       On consideration of the entire record, the assigned error, and the matters
personally submitted by the appellant pursuant to Grostefon we hold the findings of
guilty and the sentence as approved by the convening authori ty are correct in law
and fact.

      Accordingly, the findings of guilty and the sentence are AFFIRMED .




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RODRIGUEZ—ARMY 20120063

    Judge CAMPANELLA and Judge HAIGHT concur.




                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court




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