UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist LUIS RODRIGUEZ III

United States Army, Appellant

ARMY 20120063

Headquarters, U.S. Army Medical Department Center and School

Patricia H. Lewis, Military Judge

Lieutenant Colonel Jonathan E. Cheney, Staff Judge Advocate (pretrial)

Lieutenant Colonel Randolph Swansiger, Staff Judge Advocate (post-trial)

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

Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Katherine S. Gowel, 

JA; Captain Sean P. Fitzgibbon, JA (on brief).

19 December 2013

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Senior Judge COOK: 

A general court-martial composed of officer and enlisted members convicted 

appellant, contrary to his plea, of one specification of assault consummated by a 

battery, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 

928 (2006) [hereinafter UCMJ]. Appellant was acquitted of two additional 

specifications of assault consummated by a battery. The convening authority 

approved the adjudged sentence of a reprimand, a bad-conduct discharge, and 

reduction to the grade of E-1. This case is before us for review pursuant to Article 

66, UCMJ.
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Appellant raised one error to this court that merits discussion but no relief. 1 

BACKGROUND

The assigned error contains an allegation that appellant was denied effective 

assistance of counsel during the post-trial portion of his court-martial because his 

trial defense counsel failed to request that the convening authority defer appellant’s 

adjudged reduction in grade until action. Pursuant to Article 57, UCMJ, a reduction 

in grade takes effect either 14 days after being adjudged at court-martial or at action, 

whichever happens sooner. However, upon request, a convening authority can defer 

a reduction in grade until a sentence is approved. There is neither evidence in the 

record that a deferment request was submitted on appellant’s behalf nor is there

evidence in the record that appellant’s reduction was deferred. 

Appellant cites to a Defense Counsel Assistance Program (DCAP) Post-Trial 

and Appellate Rights (PTAR) form, as proof that he wanted his trial defense counsel 

to petition the convening authority to defer appellant’s adjudged reduction in grade 

until action. A review of appellant’s PTAR reveals that on the fourth page appellant 

indicated he desired a deferment of an adjudged reduction in rank. Appellant signed 

the PTAR on 17 January 2012, the day before his trial began. The PTAR was 

admitted as Appellate Exhibit IX. 

In addition, appellant submitted a post-trial affidavit wherein he stated: 

I was court-martialed on 18 and 19 January 2012. 

Pursuant to the court-martial proceedings, I 

completed an appellate rights information worksheet. 

I expressed my desire to request deferment of 

reduction in rank if I was sentenced to a reduction.

I was not sentenced to confinement and remained on 

active duty for at least six months after sentencing. 

I was on active duty up to and during the time the 

convening authority [took] action on my case. 

My attorney never requested deferment on my behalf. 

As a result, my pay was reduced to E-1 during this 

period, which caused great financial difficulty.

In response to this allegation of ineffective assistance of counsel and pursuant 

to an order by this court, appellant’s two trial defense counsel, Captain (CPT) DM2

 

1 Appellant personally raised additional matters pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merit discussion or relief.
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and CPT JM both submitted affidavits. Both counsel readily concede a request for 

deferment of reduction was not submitted on appellant’s behalf to the convening 

authority, but state this is only part of the story. Specifically, although counsel 

encouraged appellant to make an affirmative choice concerning reduction deferment 

on his PTAR, this decision took place before appellant was tried, convicted and 

sentenced. Counsel direct this court’s attention to what was submitted as clemency 

matters on behalf of appellant to understand appellant’s true p ost-trial strategy. 

These post-trial matters, submitted pursuant to Rules for Courts-Martial

[hereinafter R.C.M.] 1105 and 1106, include appellant’s personal request, dated 24 

April 2012, that he receive a post-trial administrative discharge pursuant to Chapter 

10, Army Regulation (AR) 635-200, in lieu of court-martial. Under the terms of 

appellant’s request for a Chapter 10 discharge, appellant would have been reduced to 

E-1 and his discharge characterization could have been under Other than Honorable 

conditions. See AR 635-200, paras. 1-13 and 10-8. In his cover memorandum to 

this request, CPT DM emphasizes three times in the second paragraph that appellant 

had been reduced in rank as a result of his court-martial conviction. 

[Appellant] has spent the last three months as an E-1. 

[Appellant] is an excellent Soldier and performed his 

duties well and despite being reduced he has continued 

to Soldier on, working hard as a valuable member of 

his unit. After the military, [appellant] intends to go to 

school and obtain civilian employment. Since his 

reduction in rank, saving for college and life after the 

Army is inevitably difficult. 

(emphasis added).

In his affidavit, CPT DM stated that based on appellant’s sentence, which

contained no adjudged forfeitures or confinement, defense’s post-trial strategy 

emphasized having appellant’s conviction and bad-conduct discharge disapproved. 

The requested discharge in lieu of court-martial included an automatic reduction in 

grade to E-1. Therefore, to increase the chances of having their request approved, 

CPT DM explained to appellant than any other request regarding grade reduction 

should not be submitted.

Attached to appellant’s signed request for a discharge in lieu of court-martial

is a memorandum signed by appellant that states in part:

 

2 Captain DM was promoted to Major after appellant’s court-martial and signed his 

post-trial affidavit as Major DM. For simplicity purposes, we will refer to him as 

Captain DM throughout this opinion. 
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I [,] Private Rodriguez III, Luis[,] am requesting a 

post-trial chapter 10 due to the hardship of finding 

a job as a civilian with a conviction and a bad 

conduct discharge. The bad conduct discharge will 

[effect] my benefits from the GI Bill to [Veterans 

Affairs benefits]. With a federal conviction it will 

be difficult to obtain employment and go to school. 

....

In transitioning to the civilian world of life, I have to 

support myself.... As I stated during the court-martial, 

I am sorry for what I did and this whole experience 

was a learning experience. Please consider my request 

for [a] post-trial chapter 10. 

In his personal memorandum, appellant neither mentions his adjudged grade 

reduction nor a desire to have the convening authority defer or disapprove his 

reduction. Neither appellant nor appellant’s counsel have provided matters in 

response to the affidavits submitted by CPT DM or CPT JM.

LAW AND DISCUSSION

The sixth amendment guarantees an accused the right to the effective 

assistance of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011)

(citing United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). In the military, 

this guarantee extends to assistance with the post-trial phase of a court-martial. 

United States v. Lee, 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims 

that an appellant did not receive the effective assistance of counsel. United States v. 

Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009).

“In assessing the effectiveness of counsel we apply the standard set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption 

of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).” 

Gooch, 69 M.J. 361. To overcome the presumption of competence, the Strickland

standard requires an appellant to demonstrate “both (1) that his counsel’s 

performance was deficient, and (2) that this deficiency resulted in prejudice.” 

United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 

U.S. at 687).

This Court applies a three-part test to determine whether the presumption of 

competence has been overcome:

1. Are the allegations true, and, if so, is there any reasonable 
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explanation for counsel’s actions?

2. If the allegations are true, did counsel’s performance fall

measurably below expected standards?

3. Is there a reasonable probability that, absent the errors, 

there would have been a different outcome?

United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). In the context of a post-trial 

claim for ineffectiveness, our superior court has modified the third step, requiring 

only that there be some “colorable showing of possible prejudice.” Lee, 52 M.J. at 

53 (citing United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). 

When assessing Strickland’s first prong, courts “must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Strickland, 466 U.S. at 689. When challenging the 

performance of trial defense counsel, the appellant “bears the burden of establishing 

the truth of the factual allegations that would provide the basis for finding deficient 

performance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation 

omitted).

Because appellant and counsel have filed post-trial affidavits that to some 

extent conflict, pursuant to United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997), we 

have analyzed whether a post-trial evidentiary hearing is required. After applying 

the fourth Ginn principle, we find such a hearing is not required in this case. 

Although appellant’s affidavit is factually adequate on its face, in accordance with 

the fourth Ginn principle, “the appellate filings and the record as a whole 

‘compellingly demonstrate’ the improbability of those facts” and therefore we may 

“discount those factual assertions and decide the legal issue.” Ginn, 47 M.J. at 248.

In his post-trial affidavit, appellant directs our attention to his PTAR as 

definitive proof that he desired his trial defense counsel submit a request for a 

deferment of grade reduction to the convening authority. His appellate counsel 

characterize appellant’s election on his PTAR as indicating that appellant 

“unequivocally” had requested his trial defense counsel to submit this deferment 

request to the convening authority. 

Both appellant and counsel fail to address appellant’s post-trial submission of 

a request for discharge in lieu of court-martial (specifically acknowledging an 

automatic grade reduction to E-1), as well as appellant’s supporting memorandum 

containing no mention of appellant’s purported desire that his grade reduction be 

deferred. If appellant were genuinely seeking a deferral of his grade reduction from 

the convening authority, why would his own clemency matters to the convening 

authority not address this issue? 
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Captain DM plausibly explains this issue in his affidavit. The deferment 

request was not made because the main focus of appellant’s clemency submissions

was not deferment of grade reduction, but rather the elimination of appellant’s 

punitive discharge and criminal conviction. As demonstrated in CPT DM’s R.C.M. 

1105 and 1106 memorandum, the reduction in grade was highlighted in part to 

convince the convening authority that appellant had been sufficiently punished and 

to make the discharge in lieu of court-martial more palatable. Moreover, appellant’s 

accompanying memorandum in support of this discharge request compellingly

demonstrates that he had approved of this clemency strategy in lieu of pursuing a 

deferment of reduction. As such, the appellant has failed to show “that counsel’s 

performance was deficient.” Strickland, 466 U.S. at 687.

In addition, even if any and all factual disputes were resolved in appellant’s 

favor and trial defense counsel were deficient in not submitting a grade reduction 

deferment on his behalf, appellant has failed to establish that this deficiency resulted 

in prejudice. See Strickland, 466 U.S. at 687. Although in his post-trial affidavit 

appellant alleges his reduction to E-1 “caused great financial difficulty,” appellant 

articulates no specifics as to what this difficulty was, or why the convening 

authority would have approved his request to defer his reduction in grade due to 

financial difficulties. 

On the contrary, the record reflects that appellant was a single soldier with no 

dependents at the time of trial. Neither appellant nor any of the pre -sentencing 

witnesses who testified on his behalf indicated that appellant or his family would 

suffer a financial hardship as a result of the grade reduction. When he testified, 

appellant requested he not be confined or discharged from the service. Appellant 

has submitted no matters other than his post-trial affidavit that would support a 

convening authority approving his deferment of grade reduction request. We 

therefore do not find any “reasonable probability of a more favorable action by the 

convening authority” absent counsel’s deficiency, United States v. Clemente, 51 M.J. 

547, 551-52 (Army Ct. Crim. App. 1999), and conclude that appellant has failed to

make “some colorable showing of possible prejudice.” Lee 52 M.J. at 53 (C.A.A.F. 

1999) (citation omitted). 

CONCLUSION

On consideration of the entire record, the assigned error, and the matters 

personally submitted by the appellant pursuant to Grostefon we hold the findings of

guilty and the sentence as approved by the convening authority are correct in law 

and fact.

Accordingly, the findings of guilty and the sentence are AFFIRMED. 
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Judge CAMPANELLA and Judge HAIGHT concur.

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: