UNITED STATES, Appellee

v.

Bernard D. BURT, Senior Airman

U.S. Air Force, Appellant

No. 01-0351

Crim. App. No. 33429

United States Court of Appeals for the Armed Forces

 Argued October 24, 2001

 Decided January 24, 2002

CRAWFORD, C.J., delivered the opinion of the Court, in

which EFFRON and BAKER, JJ., and SULLIVAN, S.J., joined.

GIERKE, J., filed an opinion concurring in part and in the

result.

Counsel

For Appellant: Captain Kyle R. Jacobson (argued); Lieutenant

Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.

Murphy (on brief); Colonel James R. Wise.

For Appellee: Major Eric D. Placke (argued); Colonel

Anthony P. Dattilo, Major Lance B. Sigmon, and Captain Matthew

J. Mulbarger (on brief).

Military Judge: William M. Burd

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Burt, No. 01-0351/AF

2

Chief Judge CRAWFORD delivered the opinion of the Court.

In May 1998, contrary to his pleas, appellant was convicted

by officer and enlisted members of failing to obey a lawful

order to report for random urinalysis testing, failing to obey a

no-contact order, wrongful use of marihuana, assault consummated

by a battery, and adultery, in violation of Articles 92, 112a,

128, and 134, Uniform Code of Military Justice, 10 USC §§ 892,

912a, 928, and 934. At the time of this court-martial,

appellant had 255 months of active service with the United

States Air Force and was otherwise retirement eligible. The

convening authority approved a sentence of a bad-conduct

discharge, confinement for two years, and reduction to the

lowest enlisted grade. Pursuant to Article 58b, UCMJ, 10 USC

§ 858b, the convening authority waived automatic forfeitures for

the benefit of appellant’s wife and dependent children. The Air

Force Court of Criminal Appeals affirmed the findings and

sentence. 54 MJ 687 (2001).

Appellant now claims that he received ineffective

assistance of counsel during his sentencing proceedings.1

 We

review claims of ineffective representation de novo. United

 

1

 The Court granted the following Issue:

WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL FOR

SENTENCING WHEN HIS COUNSEL REQUESTED THAT THE MILITARY JUDGE NOT

INSTRUCT THE MEMBERS REGARDING THE IMPACT OF A PUNITIVE DISCHARGE ON

RETIREMENT BENEFITS AND THEN ARGUED TO THE COURT MEMBERS THAT,

REGARDLESS OF WHAT SENTENCE THEY IMPOSED, APPELLANT WOULD STILL RETIRE

“IN THE NEXT THIRTY DAYS.”
United States v. Burt, No. 01-0351/AF

3

States v. Lee, 52 MJ 51, 52 (1999). For the reasons contained

herein, we affirm the decision of the Court of Criminal Appeals.

This was appellant’s second court-martial. In May 1997,

appellant was convicted by a general court-martial of wrongful

use of both marijuana and cocaine, and was sentenced, inter

alia, to a reduction from Master Sergeant to Senior Airman (E4).

Sentencing proceedings during the court-martial now under

review were brief. The Government introduced over fifty pages

of documents that fairly captured appellant’s career in the Air

Force. Included in this documentation were his enlisted

performance reports for approximately twenty years of service

and a personnel data sheet reflecting four previous honorable

discharges, foreign service in Italy and the United Kingdom, his

awards and decorations, and the fact that he was married with

three dependents. The Government presented no witnesses in

aggravation.

The defense’s case consisted of eleven exhibits and

appellant’s unsworn testimony. Among these exhibits were over

fifty pages of letters and certificates of appreciation,

statements of good character from both senior civilians and

enlisted members, and a note from appellant’s wife asking the

convening authority to consider her and the children because

they depended on appellant’s support for fifty percent of their

livelihood.
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4

While addressing the court members, appellant thanked them

for their time and consideration in reaching the verdict; talked

about his life before the Air Force; spoke about his time in the

Air Force and some of the highlights of his twenty-one-year

career; explained how his marriage failed as early as 1992, but

that he and his wife, while separated, continued to be married

so that she and the children would have some support; expressed

regret for his relationship with the woman that he assaulted, as

well as with whom he committed adultery; expressed remorse for

his conduct; and asked the members to consider not only his

service record, but also his family’s need for continued

financial support when sentencing him.

Prior to instructing the members on sentencing, the

military judge ascertained that appellant was retirement

eligible. At that time, the following colloquy occurred between

the military judge and defense counsel:

MJ: There is an optional instruction that may

be appropriate. Let me read this to you.

If a punitive discharge is adjudged, if

approved and ordered executed, the accused

will lose all retirement benefits. However,

regardless of the sentence of this court,

even if a punitive discharge is adjudged,

the Secretary of the Air Force or his

designee may instead allow the accused to

retire from the Air Force.

Does either side request that instruction?

DC: Your Honor, we would not like that instruction.

MJ: Should I interpret that as an objection?
United States v. Burt, No. 01-0351/AF

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DC: Yes, Your Honor

After the Court of Criminal Appeals rendered its decision

in this case, Captain Hecker, one of appellant’s trial defense

counsel, provided a declaration explaining that the trial

defense team rejected the military judge’s proposed instruction

because a part of the instruction “could make the members

believe that such Secretarial clemency action was routinely

given. Instead..., we decided that we could argue that the

punitive discharge would result in the loss of retirement

benefits for SrA Burt, since that was an accurate statement of

the law.” With the benefit of hindsight, counsel now argues

that the decision to reject the military judge’s instruction was

error, in light of civilian defense counsel’s “convoluted and

ineffective argument” that contained “false and inflammatory

comment.”

During his sentencing argument, trial counsel fairly and

forcefully noted that appellant now had two general courtmartial convictions within one year. While alluding to the fact

that appellant probably deserved a dishonorable discharge, trial

counsel told the members that “a bad-conduct discharge [will

get] the point across.” Trial counsel addressed the retirement

issue, arguing that appellant was given a chance after his first

court-martial conviction to earn his retirement and support the

family about whom he professed to care. Instead, appellant

forfeited that opportunity to earn a retirement pension while
United States v. Burt, No. 01-0351/AF

6

engaging in further serious misconduct, to include continuing to

use marijuana.

In response, civilian defense counsel emphasized that

appellant had over twenty years of honorable service with four

honorable discharges, and that the members needed to consider

the “whole person” when fashioning a sentence. Contrary to

appellant’s contention, civilian defense counsel’s argument was

focused and demonstrated a trial strategy. In particular,

counsel emphasized that jail would “accomplish nothing.” With

two federal convictions and a military background in the areas

of security and intelligence, appellant essentially had nonemployable skills and would need to start anew in the labor

force. Counsel emphasized that his client was forty-one years

old and needed counseling, but not imprisonment.

The gravamen of appellant’s argument revolves around

civilian counsel’s statement concerning appellant’s retirement.2

When arguing that appellant was not a threat to society and that

imprisonment would serve no rehabilitating purpose, counsel

said: “If you give him a letter of reprimand, he’s still going

to retire here in the next 30 days.” Counsel continued that

theme later: “A punitive discharge is really not going to

accomplish much. It might make everyone feel better and boy, we

 

2

 In the words of CPT Hecker: “[T]he sentencing argument given by Mr.

Buckingham [civilian defense counsel] was horrendous and caused great

prejudice to SrA Burt.”
United States v. Burt, No. 01-0351/AF

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sure showed him, but he’s going to be gone. He’s going to be a

memory.”

In rebuttal to defense counsel’s argument, trial counsel

pointed out:

There is no evidence of when he is leaving the

service. We heard oh, in 30 days. Where did

that number come from? You’ve already heard from

the military judge that the only evidence you

hear in the courtroom comes from witnesses and

documents. Where did that come from? Argument.

When invited by the military judge to respond, civilian

defense counsel said: “[K]eep in mind that a punitive discharge

is not necessary to ensure that he doesn’t remain on active

duty.” After trial counsel objected, and the military judge

overruled the objection, defense counsel continued: “Regardless,

a punitive discharge is going to be another black mark on his

record, and he is going to have to overcome that. That just

puts more and more obstacles in front of him. Yeah, you could

easily conclude that that’s appropriate. Put as many obstacles

out there for the rest of his life as needed. But again, go

back to that whole man, the whole career.”

In reviewing claims of ineffective assistance of counsel de

novo, we begin our analysis with Strickland v. Washington, 466

U.S. 668 (1984). There, the Supreme Court set out a two-prong

test: “First, the defendant must show that counsel’s

performance was deficient.... Second, the defendant must show

that the deficient performance prejudiced the defense.” Id. at
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8

687. Testing defense counsel’s performance by asking the three

questions posed in the United States v. Polk, 32 MJ 150, 153

(CMA 1991), we conclude that appellant has failed to overcome

counsel’s presumed competence and to show any specific area

where trial defense counsel’s performance was deficient under

prevailing professional norms. See United States v. Cronic, 466

U.S. 648 (1984); United States v. Scott, 24 MJ 186 (CMA 1987).

“Defense counsel is an advocate for the accused, not an

amicus to the court.” United States v. Volmar, 15 MJ 339, 340

(CMA 1983), citing Ellis v. United States, 356 U.S. 674 (1958).

To be an effective advocate, trial defense counsel is required

to discuss with an accused the various components of a military

sentence, i.e., confinement, discharge, reduction in rank, and

forfeitures, and after such counseling and in accordance with

his client’s wishes, zealously represent his or her client. See

United States v. Pineda, 54 MJ 298 (2001); cf. New York v.

Hill, 528 U.S. 110, 114-15 (2000)(client bound by counsel’s

tactical choices).

It is well settled that a punitive discharge from a

component of the armed forces is severe punishment. See United

States v. McNally, 16 MJ 32, 33 (CMA 1983). The impact of a

punitive discharge increases after the servicemember becomes

retirement eligible, as in the case at bar. See United States

v. Boyd, 55 MJ 217, 220 (2001). Counsel errs by conceding the

appropriateness of a punitive discharge when an accused wishes
United States v. Burt, No. 01-0351/AF

9

to remain in the service or otherwise avoid such a separation.

See United States v. Robinson, 25 MJ 43 (CMA 1987); United

States v. Webb, 5 MJ 406 (CMA 1978); United States v. Holcomb,

20 USCMA 309, 43 CMR 149 (1971).

While it is clear appellant did not wish to receive a

punitive discharge, thereby hoping to save his retirement pay,

the defense counsel’s argument neither conceded the

appropriateness of a discharge nor “convey[ed] to the members

that appellant’s retirement was untouchable and any action the

members took would have no effect.” Defense Brief at 7. To the

contrary, civilian defense counsel’s argument focused on

appellant’s first twenty years of unblemished service to the

nation and asked the members to consider the whole man when

judging an appropriate sentence. In other words, defense

counsel’s tactic was to show that appellant had legitimately

earned his retirement through twenty years of faithful,

honorable service, and it was only after appellant’s retirement

vested that he “went bad.”

Contrary to appellate defense counsel’s stance, there was

no concession in civilian trial defense counsel’s argument that

his client had no rehabilitative potential. His point to the

court members was that the realities of the situation dictated

that the Air Force would somehow remove appellant from active

duty in light of his retirement eligibility and two courtmartial convictions within a twelve-month period. Effective
United States v. Burt, No. 01-0351/AF

10

advocacy requires an astute, reflective evaluation of a set of

circumstances with rational, tactical trial choices flowing

therefrom.

Finally, defense counsel’s tactical decision to reject the

proposed instruction concerning loss of retirement benefits

represented a logical choice not to let the members off the

proverbial hook. In the absence of that instruction, the court

members were forced to come to grips with the hard decision of

whether to impose a punitive discharge and strip appellant of

his retirement pay and benefits without being told (and perhaps

reassured) that the Secretary of the Air Force could override

their sentence and allow appellant to retire and receive the

fruits of that retirement. Thus, we find no error in trial

defense counsel’s representation of appellant.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.
United States v. Burt, No. 01-0351/AF

GIERKE, Judge (concurring in part and in the result):

In my view, it is unnecessary to decide whether

civilian defense counsel’s performance was deficient under

Strickland v. Washington, 466 U.S. 668 (1984), because

appellant was not prejudiced. Appellant had a previous

conviction by general court-martial for wrongful use of

marijuana and wrongful use of cocaine. He was convicted in

this case, only nine months after his previous courtmartial, of wrongful use of marijuana, two specifications

of disobedience of orders, assault consummated by a

battery, and adultery. With this record, there was no

reasonable likelihood that appellant’s sentence would not

have included a punitive discharge. Accordingly, I agree

with the majority that a sentence rehearing is not

required. See United States v. Pineda, 54 MJ 298, 301

(2001) (sentence rehearing unnecessary “where the facts of

a given case compel a conclusion that a bad-conduct

discharge was reasonably likely”).