GUAY – ARMY 20071066

CORRECTED COPY

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, CHIARELLA, and MAGGS

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 DEAN R. GUAY, JR.**

**United States Army, Appellant**

ARMY 20071066

Headquarters, 1st Infantry Division and Fort Riley

John Saunders, Military Judge

Colonel Scott W. Arnold, Staff Judge Advocate

For Appellant:  Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Captain Eugene Ham, JA (on brief).

For Appellee:  Major Elizabeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain James T. Dehn, JA (on brief).

26 June 2008

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SUMMARY DISPOSITION

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Per Curiam:

Appellant asserts, *inter alia*, he is entitled to a new staff judge advocate’s (SJA) post-trial recommendation (SJAR) and action because his trial defense counsel failed to request the convening authority defer and waive automatic forfeitures, consistent with the military judge’s clemency recommendation.   We agree.  

In the sentencing phase of appellant’s court-martial, trial defense counsel presented evidence of the financial hardship that would result to those family members that appellant was then supporting.  He also argued for no adjudged forfeitures and requested a recommendation from the military judge for waiver of automatic forfeitures.  Consistent with the trial defense counsel’s requests, the military judge adjudged a sentence which did not include adjudged forfeitures and recommended that the convening authority both defer and waive automatic forfeitures to the extent allowed by law.  Trial defense counsel, however, did not call this recommendation to the attention of the convening authority and did not ask the convening authority to defer or waive forfeitures.  Appellant alleges that his trial defense counsel was ineffective because of these omissions.

Although we do not conclude trial defense counsel was ineffective, we do nonetheless find there was error in the post-trial handling 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. Hawkins*, 34 M.J. 991, 995 (A.C.M.R. 1992).  To prevail on an allegation of post-trial error, appellant must assert prejudice as a result of the 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 that appellant has demonstrated a “colorable showing of possible prejudice.”  *See**Wheelus*, 49 M.J. at 289.  Consequently, we will exercise our considerable discretion and set aside the convening authority’s action and require a new SJAR and action. 

**CONCLUSION**

Accordingly, the action of the convening authority, dated 16 January 2008, is set aside.  The record of trial will be returned to The Judge Advocate General for preparation of a new action by the same or a different convening authority in accordance with Article 60(c)-(e), UCMJ. 

FOR THE COURT:

MARY B. CHAPMAN

Deputy Clerk of Court

� Corrected

� While the government argues that appellant was not entitled to a waiver of automatic forfeitures, as he did not produce any documentation to show that he had a qualifying dependent, having a qualified dependent is not also a prerequisite to obtaining a deferment of automatic forfeitures.  Thus, at a minimum, the convening authority could have approved a deferment of appellant’s automatic forfeitures if defense counsel had presented such a request to him.

� This will give appellant the opportunity to request retroactive deferment of his forfeiture of pay and allowances.  See United States v. Nicholson, 55 M.J. 551, 552 n.4 (Army Ct. Crim. App. 2001); United States v. Williams, 55 M.J. 302, 306 (C.A.A.F. 2001).

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