UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

KERN, ALDYKIEWICZ, and MARTIN

Appellate Military Judges

UNITED STATES, Appellee

v.

Private First Class JUSTINO N. MONGKEYA

United States Army, Appellant

ARMY 20111151

Headquarters, United States Army Alaska

David L. Conn, Military Judge

Colonel Tyler J. Harder, Staff Judge Advocate

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

Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief). Major 

Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on reply brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Catherine L. 

Brantley, JA; Captain Michael J. Frank, JA (on brief).

11 October 2013

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SUMMARY DISPOSITION

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Per Curiam: 

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

contrary to his pleas, of one specification of abusive sexual contact, in violation of 

Article 120, Uniform Code of Military Justice. 10 U.S.C. 920 (2006 & Supp. IV 

2011), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge 

sentenced appellant to a bad-conduct discharge, confinement for three years, and 

reduction to the grade of E-1. The convening authority approved two years of 

confinement and otherwise approved the sentence.

1

 

1

The convening authority also deferred the automatic forfeiture of pay and 

allowances until action. 
MONGKEYA—ARMY 20111151

2

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

raises three assignments of error. One assignment of error alleges ineffective 

assistance of counsel in the post-trial phase of his court-martial when, contrary to 

appellant’s intent, defense counsel did not request that the convening authority defer 

the adjudged rank reduction. Without reaching the question of ineffective assistance 

of counsel, we set aside the convening authority’s initial action to provide appellant 

the opportunity to request deferment of rank reduction. This relief moots one of the 

other assignments of error, which alleges that appellant was not afforded the full 

opportunity to present clemency matters to the convening authority. Our relief 

makes appellant’s remaining assignment of error regarding dilatory post-trial 

processing premature for this court’s resolution. The matters personally raised by 

appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) lack 

merit. 

On 15 December 2011, the day before appellant’s trial, appellant completed a 

Defense Counsel Assistance Program [hereinafter DCAP] form addressing post-trial 

and appellate rights. Part of that form detailed appellant’s ability to seek deferment 

of automatic and adjudged forfeitures, along with deferment of adjudged reduction 

in rank. Appellant noted on the form that he wished to request deferment of 

forfeitures and reduction in rank. On 22 December 2011, appellant’s defense 

counsel, Captain [hereinafter CPT] WN, requested that the convening authority defer 

appellant’s automatic forfeitures until action.2In this request, appellant noted the 

financial hardship facing his wife and six children. Appellant noted that his wife 

only worked part-time. In further support of this request, appellant attached a power 

of attorney, granting appellant’s wife the authority to act on his behalf. CPT WN 

did not request that the convening authority defer appellant’s reduction in rank until 

action. As noted above, the convening authority deferred the automatic forfeitures 

until action.

On appeal, appellant alleged that he received ineffective assistance of counsel 

in the post-trial phase of his court martial when CPT WN did not request deferment 

of rank reduction. In support of his claim, appellant filed an affidavit with this court 

stating that he informed CPT WN that he wanted to request deferment of reduction 

in rank. Appellant stated that he intended for CPT WN to make this request. In his 

own affidavit, CPT WN stated that he thought it unlikely that the convening 

authority would defer any reduction in rank for appellant, given appellant’s sexual 

assault conviction. He advised appellant as such. However, CPT WN did not review 

the relevant DCAP form before making his request for deferment of forfeitures and, 

 

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

using his new rank. We will continue to refer to him as CPT WN for clarity.
MONGKEYA—ARMY 20111151

3

thus, did not realize that appellant indicated on that form that he wished to request 

deferment of rank reduction.3

We note our superior court has held an accused's best chance for clemency 

rests with the convening authority. United States v. Wheelus, 49 M.J. 283, 287 

(C.A.A.F. 1998); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). If 

the convening authority “has not seen a convicted servicemember's clemency 

submission, it is well established that he has not been afforded his best hope for 

sentence relief.” United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991). In 

addition, “the convening authority's obligation to consider defense submissions is 

uniquely critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 

(C.A.A.F. 1997). In light of the miscommunication between appellant and CPT WN, 

we will set aside the convening authority’s action and allow appellant the 

opportunity to request deferment of rank reduction. 4 We consequently do not reach 

the question of whether CTP WN provided ineffective assistance of counsel.

CONCLUSION

The convening authority’s initial action, dated 11 October 2012, is set aside. 

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

advocate post-trial recommendation (SJAR) and new action by the same or a

different convening authority in accordance with Article 60(c)-(e), UCMJ.

Appellant should also receive a newly-appointed defense counsel to assist with the

preparation of his clemency matters.

 

3 According to his affidavit, CPT WN maintained contact with appellant through out 

the post-trial process, and appellant never expressed any dissatisfaction when 

appellant received pay at the E-1 rate. 

4 We conclude that appellant has met his burden of establishing some colorable 

showing of possible prejudice. United States v. Wheelus, 49 M.J. 282, 289 

(C.A.A.F. 1998). The President, under his Article 36, UCMJ rule-making authority, 

has mandated certain requirements for an accused requesting deferment of 

punishment. See Rule for Courts-Martial 1101(c)(2)-(3). Appellant met these 

requirements to the apparent satisfaction of his convening authority with respect to 

deferral of automatic forfeitures. These requirements apply with equal force to 

deferment of rank reduction. In this case, the convening authority’s amenability to 

appellant’s first deferment request establishes a colorable inference of his 

amenability to deferring appellant’s adjudged rank reduction. At the same time, this 

observation in no way limits the convening authority’s discretion to grant or deny 

any future deferment request.
MONGKEYA—ARMY 20111151

4

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: