UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

FRANCIS L. CAPTAIN

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201300137

GENERAL COURT-MARTIAL

Sentence Adjudged: 11 January 2013.

Military Judge: CDR John Maksym, JAGC, USN.

Convening Authority: Commanding General, 3d Marine 

Logistics Group, Okinawa, Japan.

Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez,

USMC.

For Appellant: LT Carrie Theis, JAGC, USN.

For Appellee: Capt Cory Carver, USMC.

29 July 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. 

PER CURIAM:

A military judge sitting as a general court-martial 

convicted the appellant, pursuant to his pleas, of one 

specification of abusive sexual contact in violation of Article 

120, Uniform Code of Military Justice.1

 The military judge 

sentenced the appellant to confinement for 5 years and 6 months, 

 

1 10 U.S.C. § 920.
2

reduction to pay grade E-1, forfeiture of all pay and 

allowances, a $50,000.00 fine, and a dishonorable discharge. 

The convening authority disapproved the fine and approved the 

remaining sentence. In accordance with a pretrial agreement, 

the convening authority suspended all confinement in excess of 4

years.

 The appellant raises two assignments of error. First, he 

claims that trial defense counsel provided ineffective 

assistance by failing to offer evidence in extenuation and 

mitigation in sentencing. Second, he claims that trial defense 

counsel provided ineffective assistance by conceding the 

appropriateness of a dishonorable discharge without the 

appellant’s consent. As both assignments of error address 

whether trial defense counsel was ineffective during sentencing, 

we analyze them together.

We have reviewed the record of trial, the parties’ 

pleadings, the appellant’s affidavit, trial defense counsel’s 

declaration, and the record of the DuBay2 hearing that we 

ordered. We conclude that the findings and sentence are correct 

in law and fact and that no error was committed that was 

materially prejudicial to the substantial rights of the 

appellant.3

 Specifically, we find that the appellant failed to 

meet his burden of showing that trial defense counsel provided 

ineffective assistance during the sentencing phase of the 

appellant’s court-martial. 

Background

The appellant pleaded guilty at a general court-martial to 

abusive sexual contact pursuant to a pretrial agreement. In 

exchange for the appellant’s pleas, the convening authority 

agreed to dismiss additional charges of sexual assault and 

suspend all confinement in excess of 48 months.

At sentencing, the Government offered the testimony of the 

victim and recommended a sentence of confinement for five years, 

reduction to E-1, total forfeitures, and a dishonorable 

discharge.4 Trial defense counsel offered only the unsworn 

statement of the appellant and recommended a sentence of 

confinement for two years, reduction to E-1, and a dishonorable 

 

2 United States v. DuBay, 37 C.M.R. 411 (C.M.A 1967).

3 Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

4 Record at 75.
3

discharge.5 The maximum punishment allowable was confinement for 

seven years, forfeiture of all pay and allowances, reduction to 

E-1, a fine, and a dishonorable discharge. 

In a post-trial affidavit, the appellant alleges that trial 

defense counsel was ineffective for two reasons: (1) he failed 

to call character witnesses or offer documentary evidence of the 

appellant’s military service in extenuation and mitigation; and 

(2) he argued for a dishonorable discharge without the 

appellant’s consent. We concluded that we could not resolve 

either claim without further fact-finding and ordered a DuBay 

hearing. The DuBay hearing record was authenticated and 

returned to this Court with the military judge’s findings of 

fact and conclusions of law. 

Discussion

A military judge’s DuBay findings of fact on an issue of 

ineffective assistance of counsel are reviewed under a clearly 

erroneous standard while conclusions of law and the question of 

prejudice are reviewed de novo.6 Finding no clear error, we 

accept the DuBay judge’s findings of fact and adopt them as our 

own.7

The Sixth Amendment to the U.S. Constitution guarantees an 

accused’s right to effective assistance of counsel. We analyze 

claims of ineffective assistance of counsel under the test 

enunciated by the Supreme Court in Strickland v. Washington.8 

Thus, to prevail on a claim of ineffective assistance of 

counsel, “an appellant must demonstrate both (1) that his 

counsel’s performance was deficient, and (2) that this 

deficiency resulted in prejudice.”9

 We review both parts of the 

Strickland test de novo.10

 

5 Id. at 78.

6 United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2004).

7 We note that the appellant did not object to the same judge presiding at the 

DuBay hearing as his court-martial, despite being given the opportunity to do 

so. Record of DuBay Hearing at 9-10 and 118-122.

8 466 U.S. 668 (1984).

9 United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing 

Strickland, 466 U.S. at 687) (additional citation omitted). 

10 United States v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008).
4

For the first part of the Strickland test, we “must indulge 

a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance . . . .”11 The 

appellant “bears the burden of establishing the truth of the 

factual allegations that would provide the basis for finding 

deficient performance.”12 At the sentencing phase, trial defense 

counsel may be ineffective “when counsel either fails to 

investigate adequately the possibility of evidence that would be 

of value to the accused in presenting a case in extenuation and 

mitigation or, having discovered such evidence, neglects to 

introduce that evidence before the court-martial.”13

Here, after adequate investigation into the matter, trial 

defense counsel made a tactical decision not to call any of the 

potential character witnesses that the appellant suggested.14 

The tactical reasoning behind this decision was to avoid opening 

the door to potentially damaging evidence that the Government 

could offer in rebuttal. This tactical reasoning was reasonable 

and, as such, we agree with the conclusion of the DuBay judge 

that trial defense counsel was not deficient in failing to call 

sentencing witnesses.

Trial defense counsel also decided not to offer any 

military records documenting the appellant’s combat deployments. 

Trial defense counsel again expressed concern that offering such 

evidence would do more harm than good by opening the door for 

rebuttal by the Government. With the benefit of hindsight, this 

tactical reasoning is questionable since it is unlikely that the 

Government could have effectively rebutted official military 

documentation of the appellant’s deployment history. However, 

while the trial defense counsel’s tactical reasons may have been 

questionable, based on the record before us we cannot say that 

the decision was outside “the wide range of reasonable 

professional assistance.”15 The right to effective assistance of 

counsel does not entitle an accused to perfect assistance of 

 

11 466 U.S. at 689.

12 United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation omitted). 

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

States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998)) (internal quotation marks 

omitted).

14 Record of DuBay Hearing at 127-30.

15 Strickland, 466 U.S. at 689.
5

counsel. A mere disagreement over trial tactics does not rise 

to the level of a Sixth Amendment violation.16

Finally, the appellant claims that trial defense counsel 

provided ineffective assistance of counsel by conceding the 

appropriateness of a dishonorable discharge without his client’s 

consent. It is well-established that an accused may request a 

punitive discharge in lieu of confinement, or to mitigate the 

length of confinement. Thus, a defense counsel is permitted to 

advocate on behalf of his client for such punishment. However, 

“when defense counsel does seek a punitive discharge . . . -

even as a tactical step to accomplish mitigation of other 

elements of a possible sentence - counsel must make a record 

that such advocacy is pursuant to the accused’s wishes.”17 In 

short, the law requires that there be “an adequate record of 

appellant’s desire that a punitive discharge be actually 

imposed.”18

Here, trial defense counsel admitted in his post-trial 

declaration that he failed to make an adequate record of the 

fact that the appellant had consented to his arguing for a 

dishonorable discharge. But he maintained in his declaration 

and in his testimony at the DuBay hearing that he had fully 

discussed the matter with the appellant before trial, and that 

the appellant had agreed with the tactic of requesting a 

dishonorable discharge in the hope of receiving less 

confinement.19 Trial defense counsel testified at the DuBay

hearing that the appellant’s overriding concern was “to serve 

the least amount of confinement that he could serve.”20 At the 

DuBay hearing the appellant agreed that he told his trial 

defense counsel that he wanted to avoid incarceration. The 

military judge found trial defense counsel credible on this 

point.21 We agree and conclude that despite counsel’s failure to 

 

16 We note that the military judge was aware of the appellant’s combat 

deployments, and took them into account during sentencing. DuBay Hearing 

Findings of Fact and Conclusions of Law at 13-14.

17 United States v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994) (citations 

omitted).

18 United States v. Pineda, 54 M.J. 298, 301 (C.A.A.F. 2001) (citation 

omitted).

19 DuBay Hearing Findings of Fact and Conclusions of Law at 11 and Record of 

DuBay Hearing at 124.

20 Record of DuBay Hearing at 124.

21 DuBay Hearing Findings of Fact and Conclusions of Law at 14.
6

memorialize a record of this understanding, we find no deficient 

performance that implicated the appellant’s Sixth Amendment 

right to counsel.

Having determined that the appellant did not meet his 

burden to show that trial defense counsel’s performance was 

deficient within the meaning of Strickland, we do not reach the 

second part of the Strickland analysis. 

Conclusion

We affirm the findings and sentence as approved by the 

convening authority.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court