## UNITED STATES ARMY COUR T 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 Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA ; Captain Meghan M. Poirier, JA (on brief).

For Appellee: Majo r 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 specificat ion 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) [herei nafter UCMJ]. Appellant was sentenced to a bad-conduct discharge, conf inement for eleven m onths, and reduction to the grade of E-1. The convening author ity approved only so much of the sentence as provides for a bad-c onduct discharge, confinem ent for eight months, and reduction to the grade of E-1.

Appellant’s case is now be fore this court for review under Article 66, UCMJ. Appellant raises one assignmen t of error, allegi ng ineffective assist ance of counsel and arguing a new review an d action must be ordered in this case because his
defense counsel failed to subm it a request to the convenin g authority for deferral ofWATKINS—ARMY 20110040

2 automatic forfeitures. We need not address th e issue of ineffective assistance of counsel; a new review and action is required under these circumstances.

In a Post-Trial and Appellate Rights fo rm, appellant specifically asked his
defense counsel to submit a request for deferral of au tomatic forfeitures to the convening authority. Appell ant expressed great concern fo r the care a nd support of his wife and child, bot h during his trial and in his post-trial clem ency submissions. However, the defense counsel failed to actually requ est deferral of automatic
forfeitures.

In light of the defense coun sel’s error, appellant argues that he di d not receive constitutionally adequate representati on 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 argumen t as one of ineffective
assistance of counse l, this court has also afforded relief without reaching this
constitutional issue where an accused is deprived of the ri ght to “a full opportunity to present matters to the convening author ity prior to his acti on 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 o pportunity. Despite his expr essed desire to request a
deferral of automatic forfei tures, no such reque st was submitted to the convening authority, and nothing in the record es tablishes 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 co lorable showing of possible prejudice” for errors connected with a convening authority’s post-trial review).

Accordingly, the convening au thority’s initi al action is set aside. The record of trial is returned to The Judge Advocat e General for a new SJAR and action by the same or a different convening authority in accordance with Artic le 60(c)–(e), UCMJ.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: