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

                           UNITED STATES, Appellee
                                        v.
                       Staff Sergeant FULGENCIO VIDAL
                          United States Army, Appellant

                                  ARMY 20130892

              Headquarters, 1st Cavalry Division (Rear)(Provisional)
                      Rebecca K. Connally, Military Judge
Colonel R. Tideman Penland, Jr., Staff Judge Advocate (pretrial and recommendation)
     Lieutenant Colonel Michael D. Jones, Staff Judge Advocate (addendum)


For Appellant: Captain Heather L. Tregle, JA; Daniel Conway, Esquire (on brief);
Captain Heather L. Tregle, JA; Daniel Conway, Esquire (on supplemental assignment
of error); Captain Heather L. Tregle, JA; Daniel Conway, Esquire (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Linda Chavez, JA (on brief); Colonel Mark H. Sydenham, JA; Lieutenant Colonel
A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Linda Chavez, JA (on
supplemental brief).


                                     21 June 2016
                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

WOLFE, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of two specifications of aggravated sexual assault
and one specification of an indecent act, all in violation of Article 120, Uniform
Code of Military Justice, 10 U.S.C. § 920 (2006 & Supp. IV 2010) [hereinafter
UCMJ]. The court-martial sentenced appellant to a dishonorable discharge,
confinement for fifteen years, forfeiture of all pay and allowances, and a reduction
to the grade of E-1. The convening authority approved the findings and sentence as
adjudged. 1

1
 The convening authority deferred the forfeiture of $900 pay per month from 13
November 2013 until 17 September 2014.
VIDAL—ARMY 20130892

       On appeal, appellant initially raised three assignments of error. In a
supplemental assignment of error, raised by questions brought about during the
course of the appeal, appellant asserts that the convening authority was never
presented with all of his Rule for Courts-Martial [hereinafter R.C.M.] 1105
submissions. For the reasons explained below, we grant relief on appellant’s
supplemental assignment of error and direct a new post-trial review and action on
the case by the convening authority. Accordingly, we do not address the remainder
of appellant’s assigned errors at this time. Additionally, we direct a hearing
pursuant to United States v. DuBay, 17 U.S.C.MA. 147, 37 C.M.R. 411 (1967), to
resolve an outstanding issue regarding appellant’s right to conflict-free appellate
counsel.

                                  BACKGROUND

      The offenses in this case arise out of a single incident in Afghanistan in which
appellant and Specialist (SPC) JA had sexual intercourse with SPC JO. Appellant
was convicted of aggravated sexual assault both as a principal (for having sex with
SPC JO under a bodily harm theory) and under an aider and abettor theory for
holding SPC JO’s arms while SPC JA had sexual intercourse with her. 2

                                A. Evidence at Trial

       In 2011–2012, SPC JO was serving in Afghanistan refueling helicopters as a
petroleum supply specialist. She was nearing the end of her deployment when she
began hanging around appellant and SPC JA. Specialist JO admitted that she was
attracted to SPC JA.

       One night in May 2012, SPC JO went to hang out with the two soldiers in a
bunker near appellant’s tent. Specialist JA handed her a bottle of red Gatorade. As
SPC JO took a few gulps, she said she could taste some alcohol in the drink. Later,
SPC JO stated that one of the two soldiers pulled out a rolled “cigarette” which was
then passed between the three of them. After taking a few puffs, SPC JO testified
that she started feeling very “giggly” and “kind of off balance.”

       Specialist JO testified that the two male soldiers tried to convince her to go
“somewhere private,” which she refused. They then started touching her and tried to
take off her physical training shorts. She pushed their hands away. Then, appellant


2
 While appellant was convicted of two specifications of aggravated sexual assault,
he was acquitted of two specifications of rape for these same acts.


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VIDAL—ARMY 20130892

lifted her up by her armpits with his hands. Initially, SPC JO thought he was
helping her, but then appellant began trying to convince SPC JO to have sex with
SPC JA. Specialist JO testified that she told appellant and SPC JA “six or seven
times” that she did not want to have sex with them. Over her objections, both
soldiers then had sex with her.

       Specialist JO explained to the court that in the moment she was “confused”
and “conflicted.” She considered both men to be her friends and comrades in arms.
She stated that she felt guilty for not screaming, but also that she was worried that
reporting them would be “betraying them because they were in the military.” She
said she did not want to “admit to being raped,” feel like a victim, be “pitied” and
that she wanted “to basically feel like normalize it [sic].”

       At some point shortly after the assault, SPC JO said she sought out SPC JA to
talk about what had happened. During the discussion, SPC JA told her he felt bad
and told her that “he felt more like they had raped [her].” 3 During this encounter
with SPC JA, SPC JO testified she ended up having consensual sexual intercourse
with SPC JA.

       After redeploying, SPC JO ran into appellant while turning in gear at the
Central Issue Facility. She then confronted appellant during a twelve-minute
conversation which she recorded on her cellphone. Approximately two-thirds into
the recording, SPC JO tells appellant through sobs that “I just wish you would have
stopped when I said no.” For approximately twenty-six seconds, appellant says
nothing as SPC JO continues to cry. Appellant, who begins to cry himself, then said
the following:

                I’m sorry [SPC JO]. Hey, look at me. Look at me. Look.
                Look at me. From the bottom of my heart - - look - - from
                the bottom of my heart, I am sorry. If that’s going to help
                you somehow - - look - - I’m crying because - - I never
                intended that for you, ok? Really. I swear on my life that
                I didn’t plan that, I didn’t want that to happen to you. I
                didn’t even - - that was - - I think it was alcohol and we
                were smoking, and we went to the emotions and everybody
                just parties - - I thought it was like a party but then, it did
                turn out another way. I promise you, I swear, that I didn’t
                plan - - and [SPC JA]’s not a bad person either. None of


3
    Specialist JA did not testify at appellant’s trial.


                                               3
VIDAL—ARMY 20130892

             us would plan to do harm to you. None of us. [Specialist
             JA] [sic] a good person and I think we are good guys even
             if we did something like that. But we don’t do things - -
             we’ve never been evil. [Specialist JA] is my best friend,
             I’m the godfather of his daughter, he’s never done
             something like that. And never to hurt a woman at all or
             us [sic]. I promise you that. I am ashamed, and I feel so
             bad, and the next day I felt so bad.

       At trial, the government presented the testimony of SPC JO and introduced
the recording of appellant’s admissions. Specialist JO admitted that shortly after
having consensual sex with SPC JA she told her husband about the sexual encounter.
She did not, however, immediately tell him that she had been sexually assaulted.

        The defense theme at trial was that SPC JO had fabricated a sexual assault
allegation out of a consensual event in order to save her marriage. Specialist JO
admitted on cross-examination that her marriage was falling apart because of her
admitted infidelity. The defense called SPC JO’s husband who testified he was
“very upset” upon learning that she had cheated on him. He also admitted that this
conduct enraged him and he contemplated divorce. Specialist JO’s husband further
testified that she told him about the sexual assault in August 2012 after she had
redeployed. Specialist JO’s husband admitted that after finding out about the sexual
assault he was “quite a bit” less angry with her and that he “looked at it a different
way.”

      The defense also admitted statements made by SPC JO that she had cheated on
her husband while deployed. The defense theory, that SPC JO was concealing her
sexual activity in order to preserve her marriage, faced some difficulty in that SPC
JO did not shy away from admitting that she had, in fact, cheated on her husband.

                                     B. Post-trial

      Specialist JA was to be tried after appellant. Prior to the beginning of trial on
the merits, however, the convening authority granted SPC JA’s request to be
administratively discharged in lieu of trial by court-marital, a form of discharge
commonly referred to as a “Chapter 10.” See Army Reg. 635-200, Personnel
Separations: Active Duty Enlisted Administrative Separations [hereinafter AR 635-
200], Chapter 10 (6 Jun. 2005; Rapid Action Revision 6 Sep. 2011). However, when
appellant submitted his own Chapter 10 request as his R.C.M. 1105 matters, the
convening authority rejected the request.



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VIDAL—ARMY 20130892

                                       C. Appeal

       On appeal, one of appellant’s assigned errors is that his trial defense counsel
was ineffective for not seeking SPC JO’s mental health records. Appellant asserts
that in SPC JA’s court-martial, it was the pretrial discovery of those records that
resulted in SPC JA receiving a Chapter 10 discharge. He further asserts that but for
the trial attorney’s error, appellant would similarly have received an administrative
discharge.

       In response, the government disagreed with that assertion and submitted an
affidavit from the chief of justice explaining why only SPC JA’s Chapter 10 request
was supported. The chief of justice explained that the government’s case against
SPC JA was significantly weaker. Specifically, she explained that SPC JA’s case
was far more likely to result in an acquittal because: 1) unlike appellant, there were
no recorded incriminating statements made by SPC JA; 2) the victim had engaged in
counter-intuitive behaviors with SPC JA (to include post-assault consensual
intercourse) that were difficult to explain; and 3) when interviewed by prosecutors
after his conviction in preparation for SPC JA’s court-martial, appellant, operating
under a grant of immunity, gave responses that the prosecutors believed indicated
that he was prepared to testify falsely in favor of SPC JA.

       In the record forwarded to this court, appellant’s Chapter 10 request was the
only matter submitted to the convening authority by or on behalf of appellant under
R.C.M. 1105. While it is clear that appellant and his counsel possessed SPC JO’s
mental health records at the time, the Chapter 10 request made no mention of them
nor included them by reference.

       The unusual circumstance in this case is that SPC JA’s attorney, appellant’s
post-trial attorney, and appellant’s civilian appellate counsel are all the same person.

       In initially attempting to resolve this assigned error, we found ourselves in a
quandary: On appeal, counsel argued that the trial defense counsel was ineffective
for not seeking to find out the contents of Specialist JO’s mental health records.
Based on the record of trial, that same counsel–with actual knowledge of the
contents of these mental health records via his representation of SPC JA–did not
assert their relevance in seeking appellant’s Chapter 10 discharge. In other words,
by arguing that the trial defense counsel was ineffective and lost appellant’s chance
at an administrative discharge, it appeared he was also arguing his own
ineffectiveness during post-trial representation of appellant. This presented us with
what appeared to be a conflict of interest. See AR 27-26, Legal Services: Rules of
Professional Conduct for Lawyers, Appendix B, Rule 1.7, (1 May 1992). “A lawyer
shall not represent a client if the representation of that client may be materially

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VIDAL—ARMY 20130892

limited by . . . the lawyer’s own interests. . . .” AR 27-26, Appendix B, Rule 1.7(b).
On 25 April 2016 we met with the Chiefs of the Government and Defense Appellate
Divisions to discuss the possibility of a conflict of interest and the possibility of
assigning additional, conflict free, counsel.

      Immediately subsequent to this meeting, appellant filed his supplemental
assignment of error. In short, the brief alleges that counsel did, in fact, argue that
the contents and admissions within SPC JA’s mental health records warranted an
administrative discharge–but those documents were never presented to the convening
authority.

       In other words, the supplemental assignment of error attempted to moot the
issue of whether there was a potential conflict by arguing instead that there was an
error of omission in the post-trial processing of appellant’s case. We granted
appellant’s motion to attach additional emails and documents to the record.

      The emails and documents submitted by the defense demonstrate that
appellant’s counsel made two Chapter 10 requests. The initial R.C.M. 1105
submission from counsel mentions SPC JO’s mental health records as follows:

             I will not discuss sealed matters in this clemency request;
             however, during the course of [SPC JA]’s case I
             personally spoke to the treating psychiatrist [of SPC JO]
             during inpatient treatment. The doctor would have been
             an extremely damaging witness to impeach [SPC JO’s]
             credibility. 4

The initial Chapter 10 request, however, was administratively returned to counsel for
failing to follow the regulatory requirement that the submission be personally signed
by the appellant. See AR 635-200, para. 10-2c. In a series of subsequent emails,
this omission was corrected and appellant’s counsel submitted a second Chapter 10
request. The second Chapter 10 submission signed by appellant, however, did not
mention SPC JO’s mental health records.

      After receiving the second Chapter 10 request, the post-trial NCO emailed
appellant’s counsel to ask:




4
 It is important to note that the “sealed matters” referred to here were not part of
appellant’s record of trial. We presume that these records were appropriately sealed
by the military judge in the trial proceedings of SPC JA held before the acceptance
of his Chapter 10.
                                          6
VIDAL—ARMY 20130892

             . . . if the Post-Trial Chapter 10 was the full RCM
             1105/1106 matters that you submitted. Or was there any
             additional 1105 submissions[?]

Counsel’s affirmative response (“[t]hat is correct”) indicated that the second Chapter
10 request was the only submission under R.C.M. 1105.

      Accordingly, appellant’s sole R.C.M. 1105 submission to the convening
authority was a Chapter 10 request that did not mention SPC JO’s mental health
records or any other mitigating or extenuating circumstances.

                               LAW AND DISCUSSION

                            A. Potential Conflict of Interest

       Prior to addressing the merits of any of appellant’s assigned errors, we must
first determine whether there is a potential conflict of interest in this case and, if so,
how should it be resolved.

       “In all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI; see also United
States v. Cain, 59 M.J. 285, 294 (C.A.A.F. 2004). “Where a constitutional right to
counsel exists . . . there is a correlative right to representation that is free from
conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981).

       An accused may waive his right to conflict-free counsel. United States v.
Davis, 3 M.J. 430, 433 n.16 (C.M.A. 1977). However, waivers must be voluntary,
and they must be “‘knowing, intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.’” Id. (quoting Brady v. United
States, 397 U.S. 742, 748 (1970)). “Courts will indulge every reasonable
presumption against the waiver of this right.” United States v. Lee, 66 M.J. 387, 388
(C.A.A.F. 2008) (citing Brady 397 U.S. at 748) (internal quotation omitted); United
States v. Murphy, 50 M.J. 4, 10 (C.A.A.F. 1998) (an appellant is “entitled to have
conflict-free counsel”); Holloway v. Arkansas, 435 U.S. 475 (1978).

       “An attorney has an ethical duty to identify conflicts of interest concerning
the attorney's representation of a client and to take appropriate steps to decline or
terminate representation when required by applicable rules, regardless of whether a
party-litigant has filed a motion to disqualify the attorney.” United States v.
Humpherys, 57 M.J. 83, 88 n.4 (C.A.A.F. 2002); see Model Rules of Prof’l Conduct
r. 1.16 (Am. Bar Ass’n 2016); see also AR 27-26, Appendix B, Rule 1.16.

       This is not a case where a conflict of interest is raised as error. See United
States v. Akbar, ARMY 20050514, 2012 CCA LEXIS 247, at *38 (Army Ct. Crim.

                                            7
VIDAL—ARMY 20130892

App. 13 Jul. 2012) (“To establish an actual conflict of interest, appellant must show
that (1) counsel actively represented conflicting interests and (2) that the “actual
conflict of interest adversely affected his lawyer's performance.”) (citations
omitted). Rather, our concern is that there is potential conflict of interest during the
pendency of the instant appeal.

      We have identified three areas of concern.

                  1. Allegations of Ineffective Assistance of Counsel

       As discussed above, the civilian attorney representing appellant on appeal
also represented appellant in the post-trial processing of his case. Appellant’s
second assigned error asserts the trial defense counsel was ineffective in
“inexcusabl[y]” not requesting SPC JO’s mental health records. In briefing the
issue, counsel asserted that the mental health records are “completely exculpatory”
and that these records were the reason that appellant’s co-actor, SPC JA, received a
Chapter 10 discharge.

       Our concern is that whatever should have been expected of the trial defense
counsel in seeking to breach the privilege under Military Rule of Evidence
[hereinafter Mil. R. Evid.] 513 and obtain SPC JO’s mental health records, at least
the same diligence would be expected of the counsel representing appellant post-
trial. This is especially the case when the post-trial counsel had the records in hand,
had actual knowledge of their “completely exculpatory” nature, and was submitting a
request for a Chapter 10 on behalf of appellant. In other words, there is the
potential for a conflict of interest when during the course of representation, by
demonstrating the mistakes of the trial defense counsel, an attorney implicitly and
simultaneously reveals the possibility that his or her own performance fell short.

       Analysis of this issue is complicated by the confusing manner in which the
R.C.M. 1105 matters were submitted. However, even assuming that both Chapter 10
requests should have been submitted to the convening authority, they would have
only contained a passing reference to the mental health records, devoid of detail or
context. More specifically, counsel stated that he “would not discuss” the mental
health records. And as the mental health records of SPC JO were never part of
appellant’s trial, they were not otherwise before the convening authority. Instead,
counsel asked the convening authority to rely on his personal unsworn assertion that
he had talked to a potential witness who would have provided defense friendly
testimony. It is hard to square counsel’s assertion on appeal that the trial defense
attorney was ineffective for not seeking the “completely exculpatory” mental health
records with the manner in which civilian counsel’s advocacy of that same issue–
even assuming that the convening authority should have been provided both Chapter
10 requests as appellant now asserts–presented that same issue to the convening
authority during the post-trial proceedings.

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VIDAL—ARMY 20130892




                        2. Supplemental Assignment of Error

        In the supplemental assignment of error, appellant asks us to return the record
of trial to the convening authority for a new action under Article 60, UCMJ.
Appellant argues that this relief is warranted because his full R.C.M. 1105 matters
were never presented to the convening authority. That is, appellant argues that both
Chapter 10 requests should have been submitted to the convening authority.

        Appellant’s counsel submitted the supplemental assignment of error
immediately after, and in response to, this court raising a concern about a conflict of
interest. The supporting brief argues that the error in processing appellant’s post-
trial submissions is completely the fault of the government.

       In other words, on notice of a potential conflict of interest, the brief to the
supplemental assignment of error argues–sometimes tenuously–that any error during
the post-trial processing falls not on the same defense counsel, but at the feet of the
government. Of course, an attorney should advance the arguments that are in the
client’s best interests. If that argument possibly includes that it was the attorney
himself who was at least partially responsible for the mistake, there is a potential
conflict of interest. In other words, a potential conflict of interest arises when the
best argument to be made for the client is contrary to the attorney’s own interests.
See, e.g. United States v. Hicks, 52 M.J. 70 (C.A.A.F. 1999) (discussing whether
erroneous legal advice creates a conflict when client’s reliance on that advice results
in additional charges). An attorney who had not been involved at all during the trial
stage could objectively argue that appellant is entitled to relief because of the
government’s errors, the trial attorney’s errors, or some combination thereof.

       Consider, for example, the arguments not made in support of appellant’s
request for a new convening authority action: (1) post-trial counsel erred when he
agreed that the second Chapter 10 request “was the full 1105/1106 submissions”; and
(2) when submitting matters under R.C.M. 1105, counsel did not include a copy of
the sealed mental health records for the convening authority or adequately explain
their significance.

                   3. Representation of both Appellant and SPC JA

      “The potential for conflict of interest in representing multiple accused in a
criminal case is so grave that ordinarily a lawyer should not represent more than one
co-accused.” AR 27-26, Appendix B, comment to Rule 1.7. “A lawyer who has
formerly represented a client in a matter shall not thereafter . . . represent another
person in the same or a substantially related matter in which the person’s interests

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VIDAL—ARMY 20130892

are materially adverse to the interests of the client unless the former client consents
after consultation.” Id., Appendix B, Rule 1.9(a). 5
       Appellant’s first assignment of error argues that his sentence is
disproportionately severe as compared to his co-actor, SPC JA. In his brief,
appellant argues that appellant and SPC JA were co-actors who committed “closely
related” offenses. See United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999). If
appellant meets his burden in establishing that the offenses are “closely related” the
government must show that “there is a rational basis for the disparity.” Id. This
analysis requires this court to evaluate the relative culpability of the two individuals.
       As discussed above, the lead counsel on appellant’s appeal also represented
SPC JA. The potential for a conflict of interest arises in this type of situation when
counsel must address the relative culpability of the two co-actors. For example,
arguments that SPC JA was more culpable (or even equally culpable) than appellant
become difficult to make if you have continuing obligations to both individuals.
More specifically, the government’s brief argues that the disparate treatment of the
cases was warranted because there was less admissible evidence of SPC JA’s guilt.
A conflict may arise if counsel’s obligations to SPC JA preclude an adequate
response to the government’s arguments. “Loyalty to a client is also impaired when
a lawyer cannot consider, recommend or carry out an appropriate course of action
for the client because of the lawyer’s other responsibilities or interests.” AR 27-26,
Appendix B, comment to Rule 1.7.

       We have previously held that under such circumstances, a waiver requires
“the consent of both clients, not just one.” United States v. Beckley, ARMY
9701282, 1999 CCA LEXIS 345, at *7 (Army Ct. Crim. App. 7 Sep. 1999). 6




5
  Although the unclear chronology makes it difficult for us to analyze this issue, this
is a case where the government sought to have appellant testify against SPC JA after
appellant’s trial. That is, having secured a fifteen-year sentence against appellant,
the government sought appellant’s cooperation in testifying against SPC JA. Again,
appellant’s counsel also represented SPC JA.
6
 Additionally, we note that counsel asserts in his brief that he was provided SPC
JO’s mental health records as part of his representation of SPC JA. Ordinarily,
when such records are released pursuant to Mil. R. Evid. 513, they are accompanied
by a protective order which usually requires that the records either be destroyed or
returned to the court at the completion of the proceedings. Although counsel moved
for this court to consider the records, and asserted that they were obtained during the
court-martial of SPC JA, we were not provided with a copy of the order releasing the
records.
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VIDAL—ARMY 20130892

                                     4. Resolution

       Our superior court has stated that when it comes to conflicts of interest,
“waivers must be voluntary, and they must be knowing intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences.” Lee,
66 M.J. at 388 (internal citations and quotation marks omitted). Additionally, we
are required to “indulge every reasonable presumption against the waiver.” Id.

       This case raises two types of potential conflicts of interest. First, and the
more familiar, stems from representing co-actors. The second, and unique to a
system that addresses collateral attacks on direct appeal, stems from representing
one individual both at trial (even if only during the post-trial processing of the case)
and on appeal. The latter issue being even more unusual when one of the assigned
errors on appeal includes ineffective assistance during the trial stage.

       Having identified several potential conflicts of interest, we must now
determine how to resolve them. 7 The discussion to R.C.M. 901(d)(4) provides that
when “it appears that any defense counsel may face a conflict of interest” at trial,
“the military judge should inquire into the matter, advise the accused of the right to
effective assistance of counsel, and ascertain the accused’s choice of counsel.” See
also Akbar, 2012 CCA LEXIS 247, at *40; United States v. Lindsey, 48 MJ 93, 98
(C.A.A.F. 1998). However, unlike the military judge presiding over a court-martial,
this court cannot resolve these issues through a detailed colloquy with appellant.

      Based on the specific facts of this case and the interwoven nature of these
potential conflicts, we have determined that the most appropriate course of action is
to remand the case for a hearing pursuant to United States v. DuBay to determine
whether appellant has conflict-free appellate counsel, and, if not, whether the
appellant wishes to make an informed waiver of his right to conflict-free counsel.
See Lee, 66 M.J. at 390 (remanding for a DuBay hearing). This court is ill-suited to
make this initial determination.

             Relevant factors in determining whether there is potential
             for adverse effect include the duration and intimacy of the
             lawyer’s relationship with the client or clients involved,
             the functions being performed by the lawyer, the


7
  As this court only attempts to identify potential conflicts of interest, nothing in
this opinion should be construed as a finding of misconduct, nor should it be
understood as attempting to interfere with appellant’s choice of counsel. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (a person has a Sixth
Amendment right to choose representation).


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VIDAL—ARMY 20130892

             likelihood that actual conflict will arise and the likely
             prejudice to the client from the conflict if it does arise.
             The question is often one of the proximity and degree.

AR 27-26, Appendix B, comment to Rule 1.7.

                                 B. Post-Trial Action

      As discussed above, appellant’s supplemental assignment of error argues that
the government erred in not presenting to the convening authority appellant’s full
R.C.M. 1105 submissions. In response, the government claims that they submitted
appellant’s final submission and additionally verified that it was the “full” matters
he wanted submitted.

       As an initial matter we note that were this case tried today, there would be
several obstacles to attacking the credibility of a victim’s trial testimony by
referring to mental health records not admitted into evidence. 8 However, as none of
these statutory and regulatory changes were in effect at the time of appellant’s court-
martial, we will apply the law applicable to this case.

       An appellant must be “afforded a full opportunity to present matters to the
convening authority prior to his action on the case.” United States v. Hawkins, 34
M.J. 991, 995 (A.C.M.R. 1992); United States v. Fordyce, 69 M.J. 501, 504 (Army
Ct. Crim. App. 2010). We do not believe this opportunity happened here. In so

8
 First, on 17 June 2015, the President signed Executive Order 13,696 (“2015
Amendments to the Manual for Courts-Martial, United States”). Exec. Order No.
13,696, 80 Fed. Reg. 35,783 (Jun. 22, 2015). Included in the executive order, which
was effective only for cases where arraignment had not yet occurred, were
substantial changes to Mil. R. Evid. 513. See generally DB v. Lippert, ARMY MISC
20150769, 2016 CCA LEXIS 63, at *13 (Army Ct. Crim. App. 1 Feb. 2016).

Second, in 2013 Article 60(b)(5), UCMJ, was amended to prohibit the convening
authority from considering “any matters that relate to the character of a victim
unless such matters were presented as evidence at trial and not excluded at trial.”
(emphasis added). See National Defense Authorization Act for Fiscal Year 2014,
Pub. L. 113–66, §1706, 127 Stat. 672, 954-69 (2013). The submissions in question
involve mental health records, not presented as evidence at trial, that appellant
claims contradict the victim’s testimony at trial. The effective date of that provision
only applies to offenses committed after 24 June 2014. See Pub. L. 113–66,
§1706(d)(2), Dec. 26, 2013, 127 Stat. 958, as amended by Carl Levin and Howard P.
“Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L.
113–291, §531(g)(2)(A), 128 Stat. 3365 (2014).


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VIDAL—ARMY 20130892

determining, we do not think it necessary for us to identify with precision the source
of this error. See Fordyce, 69 M.J. at 504 (ordering a new convening authority
action but declining to specifically find any error). There was sufficient confusion
in the submission of appellant’s post-trial matters that–regardless of the cause–
appellant did not have a “full opportunity” to present matters to the convening
authority.

      Accordingly, in an exercise of our discretionary authority under Article 66(c),
we will direct a new action by the convening authority. For purposes of judicial
economy, and because we find no prejudice to appellant in doing so, we will order
the new convening authority action take place immediately following a DuBay
hearing regarding conflict free counsel.

                                     CONCLUSION

         The convening authority’s initial action, dated 17 September 2014, is set
aside.

        The record of trial is returned to The Judge Advocate General for such action
as is required to conduct a limited hearing pursuant to pursuant to United States v.
DuBay.

       The purpose of the DuBay hearing is to determine whether appellant has
conflict-free appellate counsel, and if not, to develop a record of whether any
conflict has been appropriately waived. At the hearing, the DuBay military judge
shall discuss with appellant his right to conflict-free counsel. The DuBay military
judge shall include in that discussion the potential conflicts of interest raised by this
case. In identifying potential conflicts of interest, the military judge is not limited
to those potential conflicts identified in this opinion. For each potential conflict of
interest identified, the military judge shall determine whether appellant wishes to
waive his right to conflict-free counsel, and, if applicable, determine whether SPC
JA has also waived any conflict. See generally Dep’t of Army, Pam. 27-9, Legal
Services: Military Judge’s Benchbook, para. 2-7-3 (10 Sep. 2014) (“Waiver of
Conflict Free Counsel”). 9

       Upon the conclusion of the DuBay hearing, the record of trial shall be
forwarded for a new staff judge advocate recommendation and a new initial action
by the same or a different convening authority in accordance with Article 60(c)-(e).


9
  We acknowledge that intervening circumstances may make the hearing unnecessary
if, by the time the DuBay hearing is to commence, the issue of whether appellant has
conflict-free counsel has been resolved. In such a case, the military judge shall
make brief written findings explaining why the hearing is not necessary.


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VIDAL—ARMY 20130892

See United States v. Mendoza, 67 M.J. 53, 55 (C.A.A.F. 2008) (“A new, as opposed
to a corrected, action requires a new [staff judge advocate or legal officer’s
recommendation] under R.C.M. 1106 and the opportunity for the accused to submit
additional matters under R.C.M. 1105.”).

      Senior Judge HAIGHT and Judge CAMPANELLA concur.


                                     FOR
                                     FOR THE
                                         THE COURT:
                                             COURT:




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




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