UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

JOHNSON, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist NICHOLAS B. WATKINS 

United States Army, Appellant 

ARMY 20110040 

U.S. Military Entrance Processing Command 

Gregory A. Gross, Military Judge 

Lieutenant Colonel James J. Gibson, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Richard E. Gorini, JA; Captain Meghan M. Poirier, JA (on 

brief). 

For Appellee: Major Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain 

Ryan D. Pyles, JA (on brief). 

30 May 2012 

--------------------------------- 

SUMMARY DISPOSITION 

---------------------------------

Per Curiam: 

A military judge sitting as a special court-martial convicted appellant, 

pursuant to his pleas, of one specification of failure to obey a lawful order, and six 

specifications of larceny, in violation of Articles 92 and 121, Uniform Code of 

Military Justice, 10 U.S.C. §§ 892, 921 (2006) [hereinafter UCMJ]. Appellant was 

sentenced to a bad-conduct discharge, confinement for eleven months, and reduction 

to the grade of E-1. The convening authority approved only so much of the sentence 

as provides for a bad-conduct discharge, confinement for eight months, and 

reduction to the grade of E-1. 

Appellant’s case is now before this court for review under Article 66, UCMJ. 

Appellant raises one assignment of error, alleging ineffective assistance of counsel 

and arguing a new review and action must be ordered in this case because his 

defense counsel failed to submit a request to the convening authority for deferral of 
WATKINS—ARMY 20110040 

2

automatic forfeitures. We need not address the issue of ineffective assistance of 

counsel; a new review and action is required under these circumstances. 

In a Post-Trial and Appellate Rights form, appellant specifically asked his 

defense counsel to submit a request for deferral of automatic forfeitures to the 

convening authority. Appellant expressed great concern for the care and support of 

his wife and child, both during his trial and in his post-trial clemency submissions. 

However, the defense counsel failed to actually request deferral of automatic 

forfeitures. 

In light of the defense counsel’s error, appellant argues that he did not receive 

constitutionally adequate representation during the post-trial process. See Strickland 

v. Washington, 466 U.S. 668, 687 (1984); United States v. Lee, 52 M.J. 51, 52 

(C.A.A.F. 1999). Although appellant casts his argument as one of ineffective 

assistance of counsel, this court has also afforded relief without reaching this 

constitutional issue where an accused is deprived of the right to “a full opportunity 

to present matters to the convening authority prior to his action on the case.” United 

States v. Fordyce, 69 M.J. 501, 504 (Army Ct. Crim. App. 2010) (quoting United 

States v. Hawkins, 34 M.J. 991, 995 (A.C.M.R. 1992)). In this case, appellant was 

deprived of exactly that opportunity. Despite his expressed desire to request a 

deferral of automatic forfeitures, no such request was submitted to the convening 

authority, and nothing in the record establishes that the convening authority’s 

actions in this case could be considered a denial of such. Under the facts of this 

case, we are unable to say with any certainty that the convening authority would not 

have granted this request if it had been submitted. See United States v. Wheelus, 49 

M.J. 283, 289 (C.A.A.F. 1998) (requiring only “some colorable showing of possible 

prejudice” for errors connected with a convening authority’s post-trial review). 

Accordingly, the convening authority’s initial action is set aside. The record 

of trial is returned to The Judge Advocate General for a new SJAR and action by the 

same or a different convening authority in accordance with Article 60(c)–(e), UCMJ.

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: