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

                            UNITED STATES, Appellee
                                        v.
                          Private E2 STEVE A. FRASIER
                          United States Army, Appellant

                                     ARMY 20120744

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

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on reply brief);
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: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Lieutenant Colonel Joh n C. Lynch, JA (on brief).


                                       28 March 2014
                         -------------------------------------------------
                         SUMMARY DISPOSITION ON REMAND
                         -------------------------------------------------

Per Curium:

      A military judge sitting as a special court -martial convicted appellant,
pursuant to his pleas, of three specifications of absence without leave (AWOL) and
two specifications of violating a lawful general order, in violation of Articles 86 and
92, Uniform Code of Military Justice. 10 U.S.C. §§ 886, 892 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad -conduct discharge,
confinement for 11 months, forfeiture of $994 pay per month for 11 months, and
reduction to the grade of E-1. The convening authority approved five months of
confinement, but otherwise approved the remaining sentence. The convening
authority also credited appellant with 65 days of confinement credit against the
sentence.

      On 30 October 2013, we summarily affirmed the findings of guilty and the
sentence as approved by the convening authority. United States v. Frasier, ARMY
20120744 (Army Ct. Crim. App. 30 Oct. 2013) (sum. disp.). On 4 February 2014,
FRASIER—ARMY 20120744

the Court of Appeals for the Armed Forces (C.A.A.F.) reversed our decision as to
this case. United States v. Frasier, __ M.J. ___ (C.A.A.F. February 4, 2013). In
doing so, C.A.A.F. ordered this court to (1) obtain an affidavit from appellant’s trial
defense counsel, Captain (CPT) PM, that responds to appellant’s allegation of
ineffective assistance of counsel, and (2) review the ineffective assistance of counsel
issue in light of the affidavit and any other relevant matters. We have received that
affidavit and now address appellant’s claim p ursuant to Article 66, UCMJ.

      Appellant’s ineffective assistance of counsel claim i s based upon his defense
counsel’s failure to request deferment of adjudged forfeitures and reduction in
grade. For the reasons explained below, we order a new staff judge advocate review
(SJAR) and action in this case.

       We note that there is a material factual conflict between CPT PM’s affidavit
and appellant’s statements filed under penalty of perjury. In particular, appellant
states that he wanted CPT PM to request deferment of rank reduction. However,
CPT PM’s affidavit states that appellant withdr ew his request for deferment of
reduction in rank shortly after his trial ended. * This court cannot decide “disputed
questions of fact pertaining to a post -trial claim, solely or in part on the basis of
conflicting affidavits submitted by the parties.” United States v. Ginn, 47 M.J. 236,
243 (C.A.A.F. 1997). Applying the principles set forth in Ginn, we are unable to
decide whether CPT PM’s actions were deficient without further proceedings. Id. at
248; see United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

       Under the facts of this case, we are confident that a DuBay hearing could not
possibly put appellant in a better position than the relief we provide, as appellant
requests that this court remand the case for new post -trial processing. Accordingly,
to protect the interests of justice and to promote judicial economy, we will order a
new recommendation and action without ruling on the issue of ineffective assistance
of counsel. See United States v. Starks, 36 M.J. 1160, 1164 (A.C.M.R. 1993) (citing
United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991)); see also United States v.
Sosebee, 35 M.J. 892 (A.C.M.R. 1992). Our action allows appellant to submit the
request for deferment of rank reduction which he alleges he wanted but was never
submitted. Furthermore, nothing herein limits appellant from seeking other relief at
clemency upon remand.


*
 Captain PM did request deferment and waiver of forfeitures after the convening
authority took action and forwarded the record to this court. Emails provided by
CPT PM between himself and the III Corps chief of military justice indicate that the
chief of military justice rejected that submission because the convening authority
lacked jurisdiction to consider the claim after forwarding the case for review. See
Rule for Courts-Martial 1107(f)(2) (“The convening authority may also recall and
modify any action at any time prior to forwarding the record for review . . .”).

                                           2
FRASIER—ARMY 20120744

                                  CONCLUSION

       The convening authority's initial action, dated 14 January 2013, is set aside.
The record of trial is returned to The Judge Advocate Gene ral for a new SJAR and
new action by the same or a different convening authority in accordance with Article
60(c)-(e), UCMJ. Appellant will also receive a newly-appointed defense counsel to
assist with the preparation of his clemency matters.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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