BRYANT ( ARMY 20080619

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

TOZZI, CONN, and HAM

Appellate Military Judges

**UNITED STATES, Appellant**

**v.**

**Sergeant DARYL L. BRYANT**

**United States Army, Appellee**

ARMY 20080619

Headquarters, I Corps and Fort Lewis

John M. Head, Military Judge

Colonel James Kevin Lovejoy, Staff Judge Advocate (pretrial)

Colonel Jeffrey C. McKitrick, Staff Judge Advocate (post-trial) 

For Appellant:  Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA; Captain Sarah E. Wolf, JA. 

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA; Major Philip M. Staten, JA; Captain Stephanie R. Cooper, JA.

29 September 2009

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of abusive sexual contact, in violation of Article 120(h), Uniform Code of Military Justice, 10 U.S.C. §§ 920 [hereinafter UCMJ].  The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months, and reduction to E1.  The convening authority approved the adjudged sentence.

Appellant claims he was denied effective assistance of counsel during the post-trial phase of his court-martial because his trial defense counsel failed to request deferment or waiver of the automatic forfeiture of pay under Article 58b, UCMJ, despite appellant’s request that he do so.  

Nothing in the record indicates that such a request was ever submitted to the convening authority.

In an affidavit from CPT B, appellant’s trial defense counsel, CPT B stated that he generally discussed waiver and deferral procedures with appellant as part of the appellate rights process.  However, he did not recall appellant specifically asking him to submit a request for deferment and/or waiver of forfeitures, and such a request was not forwarded because, as best as he could recollect, “appellant decided to concentrate his post-trial efforts and materials toward the upgrade of his adjudged discharge, as he eventually hoped to return to military service.”

The affidavits submitted by appellant and his defense counsel differ as to whether appellant requested his defense counsel submit a waiver or deferment request to the convening authority.  However, we find the “record as a whole ‘compellingly demonstrates’ the improbability” of appellant’s assertion.  *See United States v. Ginn*, 47 M.J. 236, 248 (C.A.A.F. 1997).  We agree with appellant that relief under Article 58b, UCMJ, is separate from a request for clemency under Rule for Courts-Martial [hereinafter R.C.M.] 1105.  We agree, however, with the government:  appellant’s R.C.M. 1105 matters “constitute[d] everything [he] wish[ed] the general court-martial convening authority to consider in granting [him] clemency,” as appellant clearly stated to the convening authority in his submission.

**Conclusion**

The findings and sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

� On 10 July 2009, we ordered appellate government counsel to obtain an affidavit from appellant’s trial defense counsel, in response to appellant’s allegations of ineffective assistance of counsel.

� These issues are easily avoided with a post-trial appellate rights form that advises appellant of his rights under Article 58b, UCMJ and indicates his choice with regard to requests for waiver and deferment.

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