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

                            UNITED STATES, Appellee
                                         v.
                      Staff Sergeant EMANUEL R. WATERS
                           United States Army, Appellant

                                   ARMY 20111073

       Headquarters, United States Army Special Forces Command (Airborne)
                          Tara A. Osborn, Military Judge
            Lieutenant Colonel Alison C. Martin, Staff Judge Advocate


For Appellant: Major Richard E. Gorini, JA; Captain Robert A. Feldmeier, JA (on
brief); Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageliery, Jr., JA;
Captain Robert N. Michaels, JA (on reply brief) .

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

                                    30 October 2013

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                                SUMMARY DISPOSITION
                              -----------------------------------
LIND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to distribute marijuana, one
specification of possession of marijuana, one specification of knowing receipt of
stolen property, and one specification of unlawful possession of an unregistered
firearm in violation of Articles 81, 112a, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 881, 912a, and 934 (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a bad-conduct discharge, confinement for thirty-nine months,
and reduction to the grade of E-1. The convening authority approved only so much
of the sentence as provided for a bad-conduct discharge, confinement for twenty-
four months, and reduction to the grade of E-1. 1

1
 Pursuant to a pretrial agreement, the convening authority agreed to disapprove any
sentence to confinement in excess of thirty months. After review of appellant’s
post-trial matters submitted pursuant to Rule for Courts -Martial [hereinafter R.C.M.]
1105, the convening authority granted an additional six months of clemency.
WATERS — ARMY 20111073


       This case is before the court for review under Article 66, UCMJ. Appellant’s
sole assignment of error alleging ineffective assistance of counsel during the post -
trial phase of his court-martial merits discussion but no relief.

                                  BACKGROUND

       On 30 November 2011, defense counsel, Captain (CPT) VA, requested that the
convening authority defer appellant’s automatic forfeitures and adjudged and
automatic reduction in rank. Captain VA also requested that “at initial action,” the
convening authority “waive the automatic forfeitures and disapprove the adjudged
reduction in rank.” Captain VA stated: “This latter request will be repeated in
subsequent matters submitted as a clemency request under R.C.M. 1105 and R.C.M .
1106.” Finally, CPT VA included a form entitled: “Authorization to release funds
deferred or waived by the Convening Authority,” which included appellant’s wife’s
name and bank account information.

      On 20 January 2012, and again on 30 January 2012, the convening authority
denied appellant’s request for deferment of forfeitures and reduction in rank. The
convening authority did not address the request for waiver of automatic forfeitures.

      In late March 2012, CPT VA submitted appellant’s post-trial matters
requesting that the convening authority grant clemency in the form of a six -month
reduction of appellant’s sentence to confinement. The post-trial matters did not
contain a request for waiver of automatic forfeitures. In the action dated 4 April
2012, in addition to complying with the pretrial agreement, the convening authority
reduced appellant’s sentence to confinement by six months. 2

                              LAW AND DISCUSSION

       In his sole assignment of error, appellant alleges post-trial ineffective
assistance of counsel when his defense counsel failed to request waiver of automatic
forfeitures in the post-trial matters submitted to the convening authority pursuant to
R.C.M. 1105. In support of this allegation, appellant offers only his post -trial
affidavit stating he “did not, and [has] not, given [defense counsel] authorization to
not request waiver of automatic forfeitures.”

      In contrast, CPT VA states in his post-trial affidavit that appellant directed
him not to re-request waiver of automatic forfeitures in the R.C.M. 1105/1106

2
  In the action, the convening authority erroneously approved a sentence including
“forfeiture of all pay and allowances.” Appellant’s adjudged sentence did not
include forfeitures. We will grant relief in our decretal paragraph and amend the
promulgating order accordingly.


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WATERS — ARMY 20111073

submission. Captain VA further stated that after “multiple phone conversations” 3
with appellant while appellant was in confinement, “it was decided that [their] new,
main focus in post-trial would be to get him out of prison as soon as possible . . . so
he could get back to his family.” According t o CPT VA, the rationale for this
strategy was two-fold: first, the convening authority reviewing appellant’s post -trial
matters was the same convening authority who had already denied appellant’s
request for deferment of forfeitures and reduction in rank; and second, CPT VA and
appellant decided “not to distract with a ‘shotgun’ approach in final clemency, but to
hone in on the true goal of reducing time away from [appellant’s] young family.”

       Because appellant and counsel have filed conflicting post-trial affidavits,
pursuant to United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), we must analyze
whether a post-trial evidentiary hearing is required. We find such a hearing is not
required in this case upon application of the fourth Ginn principle: “if the affidavit
is factually adequate on its face but the appellate filings and the record as a whole
‘compellingly demonstrate’ the improbability of those facts,” we may “discount
those factual assertions and decide the legal issue.” Ginn, 47 M.J. at 248.
Assuming appellant’s affidavit is factually adequate, the appellate filings and the
record as a whole compellingly demonstrate the improbability of appellant’s
assertion for the following reasons.

       Appellant’s post-trial matters enclose two letters: one written by appellant and
the other written by appellant’s wife, the would -be beneficiary of the waiver request.
Both of these letters support CPT VA’s assertion that after submission of the first
request for waiver of automatic forfeitures, but prior to submission of the post-trial
matters, appellant and CPT VA’s focus for clemency was exclusively on
confinement relief.

      In appellant’s letter dated 23 March 2012, appellant asked the convening
authority “for . . . mercy, compassion, and consideration in reducing [his] sentence
by 6 months.” Appellant explained how the thirty months of confinement punished
not only himself, but his family as well, to include appellant’s wife and their young
son. Appellant “pray[ed] with leniency that [he] would be home for the upcoming

3
  The government moved to attach to the record Government Appellate Exhibit 1,
which included emails between CPT VA and a paralegal at appellant’s confinement
facility. The emails discussed the dates and times of CPT VA’s telephonic
appointments with appellant. This motion was granted without objection. The
emails show CPT VA was scheduled to speak with appellant: on 27 January 2012,
one week after the convening authority initially denied appellant’s request for
deferment of forfeitures and reduction in rank; on 14 February 2012, approximately
one month and a half before the post-trial matters were submitted; and on 7 March
2012, approximately two weeks before the post -trial matters were submitted to the
convening authority.


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WATERS — ARMY 20111073

holidays.” Appellant’s wife also submitted a letter dated 13 February 2012 in which
she requested that appellant’s “clemency petition . . . be granted and that he . . . be
released.” Appellant’s wife told the convening authority about how appellant was
“missing time with his son not being able to be there to see him grow up . . .”

       Both appellant’s and his wife’s letters were submitted after the convening
authority denied appellant’s request for deferment of forfeitures and reduction in
rank. Neither letter alleges any financial hardship nor do they ask for any financial
relief as part of the clemency request. Appellant’s wife, who would have been the
recipient of the waiver of automatic forfeitures, discussed in her letter how she was
gainfully employed and also attending undergraduate classes.

       Appellant’s and his wife’s requests for clemency mirrored the relief requested
in the post-trial matters: reduction in confinement. The letters evidence a meeting
of the minds between appellant and CPT VA as to the approach for clemency: an
exclusive focus on reducing appellant’s sentence to confinement despite the fact that
appellant had already received the benefit of his pretrial agreement. The approach
was successful when the convening authority granted appellant the additional six
months of clemency requested by both CPT VA and by appellant .

       In sum, applying the fourth Ginn factor, we discount appellant’s factual
assertion and decide the legal issue without a post-trial evidentiary hearing. Id.
Applying the standard set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984), appellant has failed to demonstrate that counsel’s performance was deficient
during the post-trial portion of his court-martial.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. The part of the convening authority’s
action which approves the sentence to “forfeiture of all pay and allowances ” is void
as a matter of law and is set aside. Only so much of the sentence as provides for a
bad-conduct discharge, confinement for twenty-four months, and reduction to the
grade of E-1 is AFFIRMED.

      Senior Judge YOB and Judge KRAUSS concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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