                              IN THE CASE OF

                        UNITED STATES, Appellee

                                     v.

               Charles W. DAVIS, Lieutenant Commander
                        U.S. Navy, Appellant

                               No. 98-0497

                         Crim. App. No. 9600585


       United States Court of Appeals for the Armed Forces

                        Argued November 9, 2004

                         Decided March 4, 2005

ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                  Counsel

For Appellant: Captain Richard A. Viczorek, USMC (argued);
Lieutenant Travis J. Owens, JAGC, USNR (on brief).

For Appellee: Lieutenant Craig Poulson, JAGC, USN (argued);
Lieutenant Colonel William K. Lietzau, USMC, and Lieutenant
Commander Monique A.S. Allen, JAGC, USNR (on brief); Colonel
M.E. Finnie, USMC, Commander Charles N. Purnell, JAGC, USN, and
Lieutenant Frank L. Gatto, JAGC, USNR.

Military Judge:    Charles R. Hunt


  This opinion is subject to editorial correction before final publication.
     Judge ERDMANN delivered the opinion of the Court.

     Lieutenant Commander (LCDR) Davis was tried at a general

court-martial with members on charges resulting from the sexual

abuse of his stepdaughter, whom he adopted, over a seven-year

period.   After mixed pleas, he was found guilty of rape of a

child, rape, forcible sodomy upon a child, forcible sodomy,

indecent liberties with a child, and indecent liberties, in

violation of Articles 120, 125, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, and 934 (2000),

respectively.   He was sentenced to confinement for life and

forfeiture of $2,500.00 pay per month for 24 months.   The

convening authority approved the sentence, but suspended

execution of the forfeitures on the condition that Davis

maintain an allotment of all disposable pay and allowances to

his wife. The Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and sentence on December 30, 1997.     United

States v. Davis, 47 M.J. 707 (N-M. Ct. Crim. App. 1997).

     In his initial appeal to this court, Davis claimed that he

received ineffective assistance of counsel regarding the

sentencing strategy employed at his trial.   We found that the

competing affidavits submitted on the issue of ineffective

assistance of counsel warranted a fact-finding hearing to

determine the nature of the legal advice provided to Davis.

United States v. Davis, 52 M.J. 201, 206-07 (C.A.A.F. 1999).     We




                                 2
returned the record to the Judge Advocate General of the Navy

for a hearing pursuant to United States v. DuBay, 17 C.M.A. 147,

37 C.M.R. 411 (1967).

     A DuBay hearing was held in January 2000 where the military

judge received evidence and made findings of fact.   The Court of

Criminal Appeals adopted the findings of the military judge,

rejected Davis’s claims of ineffective representation, and again

affirmed the findings and sentence.   United States v. Davis,

NMCM 9600585 (N-M. Ct. Crim. App. July 24, 2003).

     The Sixth Amendment guarantees that a servicemember tried

by court-martial will receive competent, effective legal

representation.   Davis’s sentencing strategy was designed to

avoid a punitive discharge in return for a longer period of

confinement for the express purpose of protecting retirement

benefits for his family.   Because Navy regulations and policy at

the time would not have allowed Davis to retire after his

conviction, we granted review to determine whether Davis had

received competent, effective legal advice during sentencing.

                             BACKGROUND

     Lieutenant Commander Davis was a Naval Flight Officer

assigned to the USS ENTERPRISE (CVN 65).   At the time of trial

he was forty-two years old and had completed almost seventeen

years of military service.   Because he had been passed over for

promotion to commander twice, Davis was eligible to apply for

voluntary retirement under the discretionary Temporary Early


                                 3
Retirement Authority (TERA).1   Prior to the commencement of

proceedings in this case, Davis had applied for retirement under

TERA rather than face involuntary separation from the Navy.    He

was approved for a TERA retirement with an effective date of

December 1, 1994.   Prior to this retirement date, Davis’s

misconduct was discovered and the processing of his TERA

retirement was terminated.2

     During sentencing, Davis made a brief unsworn statement.       He

informed the members that he had been passed over twice and that

he was eligible to retire under TERA.    Under questioning from his

attorney, Davis indicated that he desired more confinement to

offset forfeitures and a dismissal so that he could “save” his

retirement and provide for his family.   The Government argued for

a sentence that included forty years of confinement and a

dismissal from the Navy.   Defense counsel presented the defense

sentencing strategy as follows:

     He told you send him to prison, send him for as long
     as you feel that it’s necessary, but protect his
     family because he didn’t. The bottom line, that’s
     what happened, he didn’t protect them, but you have an
     opportunity to do what he didn’t. And punish him and
     send him to prison for as long as you think is
     necessary, add extra years if you -– to give the
     family money, if you think that you need to balance

1
  The Temporary Early Retirement Authority (TERA) was enacted in
§ 4403 of Pub. L. No. 102-484, 106 Stat. 2702 (1992).         To
implement the program, the Navy promulgated NAVADMIN 093/95,
Temporary Early Retirement Program for Officers.
2
  Paragraph 7, Subsection B, of NAVADMIN 093/95 provided: “An
officer who is under adverse disciplinary . . . action under the
[UCMJ] . . . may not apply for early retirement until the action
is resolved in favor of the member.” (Emphasis added.)

                                  4
     that, but he asks you to do that, and that’s what
     we’re asking today. Show some mercy for that family.
     You don’t have to show mercy for him, put him in jail,
     show mercy for the family because they need it right
     now and you’re the only ones that can give him -– give
     them that.

     You have an actuarial table that I have given to you
     as Defense Exhibit B, and that shows you the value of
     retirement, and I think that’s probably the worst
     thing in his case is he actually was retirement-
     eligible. His family would have been taken care of
     financially and medically, but they’re not, but he’s
     still eligible for that. . . . Please consider not
     dismissing Lieutenant Commander Davis from the Navy.
     Arrangements can be made for his retirement to go to
     the family. He won’t get a dime, he’s going to be in
     prison. What’s he going to do with money? They will
     get medical benefits, they will get money, if he
     survives they can try to rebuild their lives, and we
     ask you to consider that and consider that family.

At the request of the defense, a sentencing instruction was

given informing the members that “[a] dismissal deprives one of

all retirement benefits[.]”   As noted, Davis was sentenced to

confinement for life and forfeiture of $2,500 pay per month for

twenty-four months, but no dismissal.

     In a post-trial request for clemency, Davis’s defense

counsel asked the convening authority to suspend the adjudged

forfeitures so that Davis’s family would have the means to

subsist.   This clemency request stated, in part:

     A less immediate, but no less important reason to
     suspend the forfeiture of pay is that the feasibility
     of LCDR Davis receiving retirement pay is nonexistent.
     The members did not award a dismissal in this case to
     ensure that the family had access to financial and
     medical resources that they are desperately in need
     of. I researched the issue as to whether or not LCDR
     Davis would be allowed to retire and was dismayed to




                                 5
     find that the system was not going to allow retirement
     despite the court-martial members[’] wishes.

     His defense counsel further explained that she had been

informed that Davis would be required to show cause why he

should not be eliminated from the Navy.   She explained that even

if Davis were recommended for retention after the show cause

board, he would not be allowed to retire voluntarily under TERA.

Eligibility for TERA retirement required that an adverse action

be “resolved in favor of the member.”   Even though Davis was not

dismissed at his court-martial, “the fact that LCDR Davis was in

jail [the disciplinary action against him] was considered to not

be resolved in his favor[.]”   The convening authority approved

the sentence but suspended the adjudged forfeitures contingent

upon Davis providing “all disposable pay and allowances” to his

family.

     A show cause proceeding was initiated almost a year later

to determine whether Davis should be separated from the Navy.

The board recommended that Davis be separated from the Navy with

an “other than honorable” discharge.    The recommendation was

accepted and in April 1997 Davis was discharged with a

separation code denoting “misconduct, commission of a serious

offense.”

     At the DuBay hearing held in January 2000, Davis and his

two military defense counsel testified about the advice Davis

had been given regarding his eligibility for retirement as it




                                 6
related to the defense sentencing strategy.   The military

judge’s findings of fact reflect that defense counsel informed

Davis that while obtaining a TERA retirement would be difficult,

it would be possible:

     e. . . . Both counsel advised him that, even if he was
     not dismissed as a result of the court-martial, he
     would unquestionably have to go through the
     administrative discharge process. Counsel believed
     that, armed with a member’s [sic] sentence of no
     dismissal, they could credibly argue for a favorable
     result at a [Board of Inquiry]. A favorable result
     would be not to receive an other than honorable
     discharge. Such a result would raise the issue of
     TERA eligibility. . . . At that point, the worst case
     for LCDR Davis, that is if BUPERS [Bureau of Naval
     Personnel] found LCDR Davis ineligible for TERA, would
     still entitle him to severance pay and the limited
     attendant military benefits. All of these
     consequences were communicated to LCDR Davis.

     . . . .

     i. After the member’s [sic] clear rejection of LCDR
     Davis’s credibility and his resulting conviction, the
     defense counsel believed that arguing for more
     confinement in lieu of a dismissal was their only
     effective extenuation and mitigation strategy. . . .
     A sentence to no dismissal would preserve the
     possibility of maintaining an income stream for the
     family, as well as medical benefits. . . .

     j. Defense counsel effected this strategy through
     LCDR Davis’s unsworn statement, LCDR Tinker’s
     sentencing argument, and the defense’s tailored
     sentencing instruction on the effect of a dismissal.
     Because of their awareness of the limitations of
     bringing up collateral consequences of a conviction
     during pre-sentencing, defense counsel presented their
     strategy to the members in an unequivocal manner: he
     was retirement eligible under TERA, his family needed
     his retirement benefits, do not sentence him to a
     dismissal. As a result, the reality, which included
     the uncertainties of the administrative discharge
     process and the eligibility for TERA, was not brought
     to the attention of the members.


                                7
Despite framing a sentencing strategy centered on the

possibility of TERA retirement, it was not until about a month

after trial that defense counsel learned telephonically that the

Bureau of Navy Personnel (BUPERS) “did not intend to allow LCDR

Davis to retire under TERA.”   Specifically, defense counsel was

informed during that phone conversation that no TERA retirement

would be considered unless pending disciplinary action was

“resolved in favor of the member” by acquittal.

                             DISCUSSION

Ineffective Assistance of Counsel

     The Sixth Amendment right to effective assistance of

counsel at trials by court-martial is a fundamental right of

servicemembers.    United States v. Knight, 53 M.J. 340, 342

(C.A.A.F. 2000)(citing United States v. Palenius, 2 M.J. 86

(C.M.A. 1977)).    In reviewing claims that counsel rendered

ineffective representation we apply the two-pronged test for

ineffective assistance of counsel set forth by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

The burden on each prong rests with the appellant challenging

his counsel’s performance.

     First, an appellant must show that counsel’s performance

fell below an objective standard of reasonableness -– that

counsel was not functioning as counsel within the meaning of the

Sixth Amendment.   United States v. Terlep, 57 M.J. 344, 349



                                  8
(C.A.A.F. 2002).   Our review of counsel’s performance is highly

deferential and is buttressed by a strong presumption that

counsel provided adequate professional service.    United States

v. Garcia, 59 M.J. 447 (C.A.A.F. 2004).   Thus, an appellant's

burden is especially heavy on this deficiency prong of the

Strickland test.    United States v. Adams, 59 M.J. 367 (C.A.A.F.

2004).   An appellant must establish a factual foundation for a

claim of ineffectiveness; second-guessing, sweeping

generalizations, and hindsight will not suffice.   See United

States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002); United States

v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000); United States v.

Gray, 51 M.J. 1, 19 (C.A.A.F. 1999).   The presumption of

competence is rebutted by a showing of specific errors made by

defense counsel that were unreasonable under prevailing

professional norms.    United States v. McConnell, 55 M.J. 479,

482 (C.A.A.F. 2001).

     The second prong of an appellant's burden requires a

showing of prejudice flowing from counsel’s deficient

performance.   The appellant must demonstrate such prejudice as

to indicate a denial of a fair trial or a trial whose result is

unreliable.    United States v. Dewrell, 55 M.J. 131, 133

(C.A.A.F. 2001).   The appropriate test for prejudice under

Strickland is whether there is a reasonable probability that,

but for counsel’s error, there would have been a different




                                  9
result.    United States v. Quick, 59 M.J. 383, 387 (C.A.A.F.

2004).

     Ineffective assistance of counsel involves a mixed question

of law and fact.   United States v. Anderson, 55 M.J. 198, 201

(C.A.A.F. 2001).   Factual findings are reviewed under a clearly

erroneous standard.    But the ultimate determinations of whether

an appellant received ineffective assistance of counsel and

whether the error was prejudicial are reviewed de novo.   Id.;

United States v. Cain, 59 M.J. 285, 294 (C.A.A.F. 2004); United

States v. McClain, 50 M.J. 483, 487 (C.A.A.F. 1999).



The Sentencing Strategy

     The entire defense sentencing strategy was to preserve an

opportunity for Davis to retire under TERA and thereby provide

support and benefits for his family. The Government argues that

retirement eligibility under TERA is a collateral matter not

subject to the Strickland analysis for ineffective assistance of

counsel.   We disagree.   While retirement eligibility may well be

a collateral matter in a different case, it is not so here.     The

potential for a TERA retirement and defense counsel’s advice in

that regard formed the theme and foundation for the defense

sentencing strategy.   Davis relied on this advice when he asked

for increased confinement in lieu of a dismissal from the Navy.

Under these particular facts, we reject any suggestion that the




                                 10
cornerstone of the defense sentencing strategy was merely a

collateral matter.

     While Davis’s counsel advised him that it would be an

uphill struggle to achieve a TERA retirement, they held out the

hope that if he did not receive a dismissal, retirement under

TERA, while uncertain, was a possibility.   Although a critical

component of the defense sentencing philosophy was based on this

possibility, Davis’s defense counsel failed to determine the

meaning and effect of the eligibility language in TERA that an

officer charged with a UCMJ offense may not “apply for early

retirement until the action is resolved in favor of the member.”

Prior to trial, defense counsel did not thoroughly research this

critical point of eligibility or even call BUPERS to determine

whether Davis would be eligible to seek TERA retirement.   In

fact, BUPERS policy was that an individual with a felony

conviction was disqualified from a TERA retirement.3

     Turning to the question of whether Davis has met his burden

under the first prong of Strickland, we have created a three-

part test for determining whether the presumption of competence

has been overcome:




3
  The government argued that Davis could have been eligible for a
TERA retirement through a waiver from the Secretary of the Navy
and therefore the defense strategy was sound.        This merely
underscores the fact that under the eligibility criteria at the
time, Davis was not eligible for a TERA retirement. We need not
speculate whether the Secretary of the Navy would have waived
the eligibility criteria under these circumstances.

                               11
    1. We ask first whether the Appellant's allegations are true

       and, if so, whether there is a reasonable explanation for

       counsel’s actions.

    2. Next, if the allegations are true, we review whether

       defense counsel’s level of advocacy fell measurably below

       the performance standards ordinarily expected of fallible

       lawyers.

    3. Finally, if we find that defense counsel was ineffective,

       we test for prejudice and determine whether there is a

       reasonable probability that, absent the error, there

       would have been a different result.

United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004);

United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000).

     In determining whether Davis’s allegations are true, we are

mindful that we will not reject findings of fact unless they are

unsupported in the record.   In light of the record, we agree

with the determination of the Court of Criminal Appeals that

Davis was not credible when he asserted “that he believed, based

on the advice from his lawyers, that his TERA retirement

benefits would automatically result if the court-martial did not

adjudge a dismissal.”

     Nonetheless, a critical portion of Davis’s allegations is

confirmed in this record.    The military judge found that both

defense counsel believed that Davis understood their advice that

there was a chance, although remote, that he could retain


                                 12
retirement benefits.   Davis understood this advice and approved

the strategy.    Even though counsel advised Davis that it would

be a difficult path to retirement, that advice obviously held

out the hope that retirement was possible.    Therefore, that

portion of Davis’s allegations is true -- he was led to believe

there was a chance that somewhere down the road, after his

conviction, he could be retired under TERA.    A single phone

call, made by defense counsel a month after trial, revealed the

fallacy of this belief and counsel’s subsequent advice.

     We find no reasonable strategic or tactical reason for the

flawed advice.   The flaw is a direct result of not investigating

the meaning and effect of eligibility language in the TERA

regulation as it applied to a member facing adverse action.

Davis pleaded guilty to very serious offenses.   Regardless of

the outcome on the contested offenses, he would stand convicted

of felony offenses based on his pleas alone.   It strains reason

to conclude that such a result -– a general court-martial

conviction involving child sexual-abuse offenses that resulted

in confinement for life -– might somehow be considered a

resolution “favorable” to the member.

     Assuming that the application and administration of TERA in

the Navy is as confusing as the Government claims, that fact

itself provides greater incentive for counsel to investigate and

research the area thoroughly before formulating an entire

sentencing strategy and advising a client to pursue that course.


                                 13
Yet counsel did not know that under the Navy rules and policy at

the time, TERA was not an option in this case.    Consequently,

they could not and did not correctly advise Davis.    Counsels’

sentencing strategy was fundamentally flawed from its inception

because of a failure to research the critical law and

regulations.   Davis was misadvised and there is no reasonable

explanation for counsels’ failure to conduct proper research.

     We next must determine whether counsels’ performance fell

below that ordinarily expected of fallible lawyers.    We find

that it did.   Familiarity with the facts and applicable law are

fundamental responsibilities of defense counsel.    See Wiggins v.

Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466

U.S. at 690-91 (“[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation.”).     A reasonable attorney acting

on behalf of a client would have researched the meaning and

effect of TERA’s conditional language prior to embarking on a

trial or sentencing strategy.   The failure to investigate this

critical component of the defense sentencing strategy precluded

counsel from exercising informed judgment and fully informing

Davis of the possible consequences of the strategy.     Advising

Davis and formulating a sentencing strategy based upon what


                                14
counsel considered confusing eligibility criteria for TERA was

risky; not determining the actual meaning of those eligibility

criteria was unreasonable.    We find that counsels’ performance

was ineffective.

        We must next test for prejudice and determine whether there

is a reasonable probability that, absent the error, there would

have been a different result.    Had Davis and his counsel known

that there was no possibility of a TERA retirement except for a

Secretarial waiver, there would have been little incentive for

Davis to ask for increased confinement to offset a possible

punitive dismissal.    Following counsel’s argument that the

members should maximize Davis’s period of confinement to

preserve the possibility of his retirement, the members did just

that.    They adjudged the maximum period of confinement

available.    If that possibility had not been presented to the

members, with the Government arguing for a sentence of forty

years of confinement and a dismissal, there is a reasonable

probability that there would have been a different result.

Davis was therefore prejudiced by the faulty advice and strategy

of his trial defense counsel.

                               DECISION

        The decision of the Navy-Marine Corps Court of Criminal

Appeals is affirmed as to the findings, but is reversed as to

the sentence.    The sentence is set aside.   The record is




                                  15
returned to the Judge Advocate General of the Navy.   A rehearing

on the sentence is authorized.




                                 16
