UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600254

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UNITED STATES OF AMERICA

Appellee

v.

D’ANDRE C. JOHNSON

Airman Recruit (E-1), U.S. Navy

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Robert J. Crow, JAGC, USN.

Convening Authority: Commanding Officer, Naval Air Technical 

Training Center, Pensacola, FL.

Staff Judge Advocate’s Recommendation: Lieutenant Christopher 

Ironroad, JAGC, USN.

For Appellant: Lieutenant Commander Derek C. Hampton, JAGC, 

USN.

For Appellee: Captain Sean M. Monks, USMC; Lieutenant James M. 

Belforti, JAGC, USN.

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Decided 31 January 2017

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Before MARKS, FULTON, and GLASER-ALLEN, Appellate Military Judges

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PER CURIAM:

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

consistent with his pleas, of one specification each of intentionally 

abandoning watch, absence from unit, willful disobedience of a 

noncommissioned officer, disrespect toward a noncommissioned officer, 

willful disobedience of a petty officer, disrespect toward a petty officer, and 

two specifications of making a false official statement, in violation of Articles 

86, 91, and 107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 

891, and 907. The military judge sentenced the appellant to six months’ 

confinement and a bad-conduct discharge. In accordance with a pretrial 
2

agreement, the convening authority (CA) approved the sentence as adjudged 

but suspended all confinement in excess of three months.

The case was submitted to the court without assignment of error. On 

consideration of the case, we specified the following issue: 

Did the appellant receive the effective assistance of counsel in 

his post-trial representation when detailed defense counsel 

requested relief outside the authority of the convening 

authority to grant? If not, was the appellant prejudiced by this 

deficiency? 

After careful consideration of the record of trial and the pleadings of the 

parties, we find that the findings and the sentence are correct in law and fact 

and that no error materially prejudicial to the substantial rights of the 

appellant occurred. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

The appellant was an airman recruit assigned to Naval Air Technical 

Training Center in Pensacola, Florida. While serving a period of restriction 

imposed for earlier misconduct, the appellant committed several offenses, 

including disrespecting and disobeying his superiors, abandoning his watch, 

and making false official statements. 

After the appellant’s court-martial, the staff judge advocate provided the 

staff judge advocate’s recommendation (SJAR) to the CA, advising him that 

“action on the guilty findings or sentence is a matter within your discretion,” 

and that he must consider post-trial matters submitted by the appellant’s 

counsel “in determining whether to approve or disapprove any of the findings 

of guilty and the action you take on the sentence.”1 After receiving the SJAR, 

the trial defense counsel (TDC) submitted a clemency request, asking the CA 

to disapprove the bad-conduct discharge.

II. DISCUSSION

A military accused is entitled to the effective assistance of counsel. Art. 

27(b), UCMJ; United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). The

right to effective assistance of counsel extends to post-trial requests for 

clemency. United States v. Palenius, 2 M.J. 86, 93 (C.M.A. 1977) (“After trial 

and conviction of the accused, the trial defense attorney should and can with 

honor be of much more assistance to his client and to the court. . . . This 

includes the reviewing of the staff judge advocate’s report with his client . . . 

.”).

 

1 SJAR dated 6 Jul 2016 at 1, 2.
3

We apply the two-pronged test set forth by the Supreme Court in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), to determine whether

counsel rendered ineffective representation. 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.” 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).

Courts are not required, however, to determine whether counsel’s 

performance was deficient before first examining whether the appellant 

suffered any prejudice. United States v. Datavs, 71 M.J. 420, 424-25. 

(C.A.A.F. 2012). In evaluating claims of post-trial ineffective assistance of

counsel, the threshold for finding prejudice is low; an appellant must merely

make “some colorable showing of possible prejudice.” United States v. 

Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997) (citations omitted).

We find that the appellant has made no such showing. The appellant was 

no longer confined at the time of the request. His pay grade was not reduced 

by the court-martial (he was already serving in the pay grade of E-1), and he 

automatically forfeited two-thirds of his pay only during the 45 days’ 

confinement he served after trial. Having requested significant clemency 

from the CA—who apparently believed himself authorized to grant it—the 

appellant did not receive even the lesser clemency that the CA was 

authorized to grant. The appellant has submitted no evidence indicating that 

he would have made a different request but for his counsel’s erroneous view 

of Article 60, UCMJ. Cf. United States v. Williams, 57 M.J. 1 (C.A.A.F. 2002) 

(TDC’s post-trial affidavit showing what steps he would have taken absent 

post-trial error sufficient to make a colorable showing of possible prejudice). 

Therefore we do not reach the issue of whether TDC’s performance was

deficient. We find that the appellant has not made a colorable showing of 

possible prejudice, and that no error materially prejudiced a substantial right 

of the appellant. Arts. 59(a) and 66(c), UCMJ. 

III. CONCLUSION

The findings and sentence are affirmed. 

 For the Court

 R.H. TROIDL

 Clerk of Court