## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class JEFFRY T. MILLER United States Army, Appellant

ARMY 20110406

Headquarters, Fort Drum Andrew J. Glass, Military Judge Major Matthew H. Adams, Acting Staff Judge Ad vocate (pretrial) Lieutenant Colonel Olga M. Anderson, Sta ff Judge Advocate (post-trial)

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA ; Captain Barbara A. Snow-Martone (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Ka therine S. Gowel, JA; Captain Daniel D. Maurer, JA (on brief).

29 March 2013

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SUMMARY DISPOSITION

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Per Curiam:

A military judge, sitting as a special court-martia l convicted appellant, pursuant to his plea, of one specifica tion of absence from his unit without authority for over thirty days, in violation of Articl e 86 Uniform Code of Military Justice, 10 U.S.C. § 886 [hereinafter UCMJ]. The convening authority appr oved the adjudged sentence of a bad-conduct discharge and confinement for six months.

This case is before the court for review under Article 66, UC MJ. Appellant claims he suffered prejudicia l error because he was denied his right to request that the convening authority defe r automatic forfeit ures. Appellant’s post-trial and appellate rights form indica ted that he wanted to request deferment of automatic forfeitures. After court-martial, appell ant’s counsel never re quested deferral of automatic forfeitures by the convening authority.MILLER—ARMY 20110406

2 In response to appellant’s assignment of error on this issue, appellant’s trial

defense counsel submitted an affidavit addressing why he did not subm it a request for deferment on behalf of appellant. In th is affidavit, the trial defense counsel said,

“I believe we must have discussed this . . .” and, “I cannot reca ll when I next spoke to PFC Miller, but I do no t believe that I eschewed submitting a request for

deferment . . . without obt aining [an] oral agreement with him first.” These equivocal statements indicate that counse l could not specifical ly recall appellant rescinding his prior decision to request deferral of forfeit ures. Further, the trial defense counsel admitted in his affidavit that appellant never revised his post-trial and appellate rights fo rm to indicate any ch ange in his decision regarding th e nature of his post-trial subm issions to the conveni ng authority. Therefore, we have no clear

documentation or reliable re collection that appellant changed his mind and decided not to submit a request for defermen t of automatic forfeitures.

There is apparent error in the post-trial processing of appellant’s case because we are not convinced appellan t was “afforded a full opportun ity to present matters to the convening authority prior to his action on the case.” United States v. Fordyce

, 69 M.J. 501, 504 (Army. Ct. Crim . App. 2010) (en banc) (quoting United States v.

Hawkins , 34 M.J. 991, 995 (A.C.M .R. 1992)). To prevail on an allegation of posttrial error, appellant must show he was prejud iced as a result of that error. United

States v. Wheelus , 49 M.J. 283, 288 (C .A.A.F. 1998). In matters affecting the convening authority’s post-tri al decision to grant clem ency, “there is material prejudice to the subs tantial rights of an appellant if there is an error and the appellant ‘makes some colorable sh owing of possible prejudice.’” Id . at 289 (quoting United States v. Chatman , 46 M.J. 321, 323–24 (C.A.A.F. 1997)).

Under the facts of this ca se, we find appellant has demonstrated a “colorable showing of possible prejudice.” See Wheelus , 49 M.J. at 289. As a result, we

exercise our discretion and set aside the convening authority’s action and order a new staff judge advocate recomme ndation and action by the conven ing authority.

CONCLUSION

The action of the convening authority, dated 6 December 2011 , is set aside.

The record of trial will be returned to The Judge Advo cate General for preparation of a new staff judge a dvocate recommendation and action by the same or a different convening authority in accordance with Article 60(c)–(e), UCMJ.

FOR THE COURT:

KENNETH J. TOZZI COL, JA Acting Clerk of Court KENNETH J. TOZZI COL, JA

Actin g Clerk of Cour t