UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, GALLAGHER, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Captain KATHRYN T. DEVONSHIRE 

United States Army, Appellant 

ARMY 20110356 

U.S. Army Fires Center of Excellence and Fort Sill 

Gregory A. Gross, Military Judge 

Colonel Jonathan A. Kent, Staff Judge Advocate 

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

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

brief). Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; 

Major Richard D. Gorini, JA; Captain James F. Ingram, JA (on reply brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA; Captain Daniel D. Maurer, JA (on brief). 

25 February 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

pursuant to her pleas, of seven specifications of violating a lawful general order, 

four specifications of wrongfully using a controlled substance, one specification of 

wrongfully possessing a controlled substance, and two specifications of wrongfully 

distributing a controlled substance in violation of Articles 92 and 112a, Uniform 

Code of Military Justice, 10 U.S.C. §§ 892, 912a (2006) [hereinafter UCMJ]. The 

military judge sentenced appellant to a dismissal, to be confined for five years, and 

to forfeit all pay and allowances. Pursuant to a pretrial agreement, the convening 

authority (CA) approved only so much of the sentence as provided for a dismissal, 

confinement for six months, and total forfeiture of all pay and allowances. This case 

is before us for review pursuant to Article 66, UCMJ. 
DEVONSHIRE— ARMY 20110356 

2

In her assignment of error,1 appellant alleges she was denied effective 

assistance of counsel when her defense counsel failed to request deferment of 

adjudged and automatic forfeitures pursuant to Article 57(a)(2), UCMJ. While 

ultimately leaving the issue of ineffective assistance of counsel unresolved, we find 

appellant has established “the requisite showing of possible prejudice” and 

therefore, consistent with appellant’s request, order a new review and action. United 

States v. Fordyce, 69 M.J. 501, 502 (Army Ct. Crim. App. 2010). 

FACTS 

 As part of the post-trial and appellate rights advisement process, appellant and 

her detailed trial defense counsel, Captain (CPT) S, reviewed and completed a sixpage written form two days before trial (App. Ex. IV). This form serves to 

memorialize that CPT S advised appellant of her post-trial and appellate rights. 

Pursuant to this form, appellant indicated in writing a desire to request deferment of 

automatic and adjudged forfeitures (App. Ex. IV at 4). Both appellant and CPT S 

signed this form (App. Ex. IV at 6). As reflected by the record and post-trial 

affidavits submitted by appellant and CPT S, a request for deferment of forfeitures 

was not submitted to the convening authority and the convening authority did not 

approve a deferment of forfeitures. 

 Appellant and CPT S2

 have submitted post-trial affidavits (Def. App. Ex. A 

and Gov’t. App. Ex. 1, respectively) that address the issue of why a request for 

deferment of forfeitures was not submitted. Appellant, pursuant to her affidavit, 

wanted CPT S to submit a request for deferment on her behalf. Appellant cited to 

her own financial hardships as well as her continued financial support of her parents 

to support her reasons for requesting deferment of forfeitures. 

 

 In his affidavit, CPT S stated he advised appellant, immediately following her 

court-martial, that deferral of forfeitures was unlikely due to her “lack of DEERS 

dependents” and “the overall circumstances of her case based on [his] experience 

and informal discussions with government counsel.” Captain S further stated, in 

subsequent conversations discussing the preparation of her clemency matters, 

appellant did not mention deferral of forfeitures because her focus was to achieve 

“an administrative discharge as opposed to the [adjudged] dismissal.” Significantly, 

 

1

 APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE 

POST-TRIAL PHASE OF HER COURT-MARTIAL WHEN TRIAL DEFENSE 

COUNSEL FAILED TO REQUEST DEFERRAL OF FORFEITURES ON 

APPELLANT’S BEHALF. 

2

 Captain S was promoted to Major sometime after trial and signed his affidavit 

using his new rank. We will continue to refer to him as CPT S for clarity. 
DEVONSHIRE— ARMY 20110356 

3

CPT S does not allege appellant explicitly stated she no longer desired to submit a 

request to defer forfeitures. 

 

 In the R.C.M. 1105 and 1106 matters, CPT S requested clemency on 

appellant’s behalf in the form of disapproving the adjudged dismissal. 

LAW and DISCUSSION 

 In evaluating ineffective assistance of counsel allegations, we apply the 

standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). This 

standard requires appellant to demonstrate: (1) “that his counsel’s performance was 

deficient, and (2) that this deficiency resulted in prejudice.” Id. 

 

 Our ability to resolve this post-trial issue is further affected by two factors. 

First, pursuant to United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997), we are 

prohibited from “deciding disputed questions of fact pertaining to a post-trial claim, 

solely or in part on the basis of conflicting affidavits submitted by the parties.” 

Second, we are required to grant relief in regards to post-trial matters that involve a 

convening authority’s decision “if there is an error and the appellant makes some 

colorable showing of possible prejudice.” Fordyce, 69 M.J. at 504 (internal 

citations omitted.) 

 As reflected in their affidavits, CPT S and appellant are in conflict as to 

whether appellant implicitly agreed to forgo a request to defer forfeitures. Neither 

appellant nor CPT S alleges appellant ever explicitly agreed to withdraw her request 

to defer forfeitures. In applying the principles set forth in Ginn, we are not only 

unable to simply discount appellant’s affidavit and decide the issue without further 

proceedings, but we are also prevented from formally making a finding regarding 

whether defense counsel’s performance was deficient without the benefit of a Dubay

hearing. However, as our court has previously decided in similarly situated cases,3

 a 

Dubay hearing does not afford the best solution in resolving the issue before us. 

 In addressing the prejudice prong under Strickland, pursuant to Article 

57(a)(2), UCMJ and R.C.M. 1101(2) and (3), appellant’s counsel could have 

submitted a request to the convening authority (CA) to defer automatic and adjudged 

forfeitures. Additionally, a CA’s decision to approve a request for forfeiture 

deferment is discretionary, United States v. Rosenthal, 62 M.J. 261, 263 (C.A.A.F 

2005) and R.C.M. 1101(3). As such, based on the possibility the CA might have 

deferred appellant’s forfeitures had such a request reached him, coupled with 

 

3

 United States v. Fordyce, 69 M.J. 501, 502 (Army Ct. Crim. App. 2010); United 

States v. Villanueva, ARMY 20090967 (Army Ct. Crim. App. 28 Mar. 2011); United 

States v. Beckner, ARMY 20080605 (Army Ct. Crim. App. 7 May 2010). 
DEVONSHIRE— ARMY 20110356 

4

appellant only needing to make a colorable showing of prejudice, we find appellant 

has established the requisite level of prejudice. See Fordyce, 69 M.J. at 503. 

 In the current case, we are convinced a DuBay hearing could not put appellant 

in a better position than the relief we provide, which happens to be the relief 

appellant seeks. There is also no need to further explore the issue of ineffective 

assistance of counsel. Therefore, to protect the interests of justice and promote 

judicial economy, we order a new review and action. 

CONCLUSION

The convening authority’s initial action, dated 30 August 2011, is set aside. 

The record of trial is returned to The Judge Advocate General for a new SJA 

recommendation and a new action by the same or a different convening authority in 

accordance with Article 60, UCMJ. This remedy will afford appellant the 

opportunity to submit a request for deferment of automatic and adjudged forfeitures. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: