UNITED STATES ARMY COURT 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 Advocate (pretrial) 

Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate (post-trial) 

For Appellant: Colonel 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 Katherine 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-martial convicted appellant, 

pursuant to his plea, of one specification of absence from his unit without authority 

for over thirty days, in violation of Article 86 Uniform Code of Military Justice, 10 

U.S.C. § 886 [hereinafter UCMJ]. The convening authority approved the adjudged 

sentence of a bad-conduct discharge and confinement for six months. 

This case is before the court for review under Article 66, UCMJ. Appellant 

claims he suffered prejudicial error because he was denied his right to request that 

the convening authority defer automatic forfeitures. Appellant’s post-trial and 

appellate rights form indicated that he wanted to request deferment of automatic 

forfeitures. After court-martial, appellant’s counsel never requested 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 submit a request 

for deferment on behalf of appellant. In this affidavit, the trial defense counsel said, 

“I believe we must have discussed this . . .” and, “I cannot recall when I next spoke 

to PFC Miller, but I do not believe that I eschewed submitting a request for 

deferment . . . without obtaining [an] oral agreement with him first.” These 

equivocal statements indicate that counsel could not specifically recall appellant 

rescinding his prior decision to request deferral of forfeitures. Further, the trial 

defense counsel admitted in his affidavit that appellant never revised his post-trial 

and appellate rights form to indicate any change in his decision regarding the nature 

of his post-trial submissions to the convening authority. Therefore, we have no clear 

documentation or reliable recollection that appellant changed his mind and decided 

not to submit a request for deferment of automatic forfeitures. 

There is apparent error in the post-trial processing of appellant’s case because 

we are not convinced appellant was “afforded a full opportunity 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 prejudiced 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-trial decision to grant clemency, “there is material 

prejudice to the substantial rights of an appellant if there is an error and the 

appellant ‘makes some colorable showing 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 case, 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 recommendation and action by the convening 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 Advocate General for preparation 

of a new staff judge advocate 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 

Acting Clerk of Court