UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

LIND, KRAUSS, and PENLAND

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist CHANDLER W. DEAN

United States Army, Appellant

ARMY 20140058

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill

Wade N. Faulkner, Military Judge

Colonel Mark W. Seitsinger, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Major Robert N. Michaels, JA; Captain 

Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain 

Carling M. Dunham, JA (on brief). 

10 February 2015

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OPINION OF THE COURT

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LIND, Senior Judge:

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

pursuant to his pleas, of two specifications of possession of child pornography in 

violation of Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 

10 U.S.C. § 934 (2006). The military judge sentenced appellant to a bad-conduct 

discharge, confinement for seven months, and reduction to the grade of E-1. The 

convening authority approved the adjudged sentence.

 

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

raises one assignment of error, which merits discussion but not relief. We have also 

considered those matters personally submitted by appellant pursuant to United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find one which merits discussion and 

relief.
DEAN—ARMY 20140058

2

Staff Judge Advocate’s Advice and Convening Authority’s Action on 

Appellant’s Request for Deferment and Waiver of Automatic Forfeitures and

Deferment of Adjudged Reduction in Grade

Appellant was sentenced on 15 January 2014. Appellant was subject to 

automatic forfeiture of all pay and allowances effective 29 January 2014 because his

sentence included more than six months confinement. See UCMJ arts. 58b(a), 

57(a).

1

 Appellant’s Expiration Term of Service (ETS) was 11 February 2014.

On or about 5 March 2014, appellant submitted a memorandum to the 

convening authority (CA) titled “Request for Deferment/Waiver of Automatic 

Forfeitures and Reduction in Rank, US v. Dean,” wherein he requested retroactive 

deferment and waiver of automatic forfeitures and the deferment of adjudged 

reduction in grade2:

[Appellant] specifically requests that any waiver/deferment 

that is granted be utilized for the benefit of providing for 

his elderly mother . . . . [Appellant’s mother] is a widow 

who currently resides alone . . . . [Appellant] assisted in 

the financial support of his mother prior to his CourtMartial. Knowing that she suffers from diabetes and that 

the cost of her medications is of great concern due to her 

fixed income, [appellant] would like to continue to assist in 

her financial stability even if it is for a limited period of 

time.

In the memorandum, appellant also requested that the CA grant a deferment of the 

adjudged reduction in grade: “The defense requests that you grant the deferment of 

the adjudged reduction in rank and the deferment of automatic forfeitures for a 

mother with minimal means.”3 

1 Articles 58b(a)(1) and 57(a)(1), UCMJ, read together provide that automatic 

forfeitures take effect on the earlier of fourteen days after the date on which 

sentence is adjudged or the date on which the sentence is approved by the CA. In 

this case, the CA took action on appellant’s case on 19 March 2014, well past 

fourteen days after sentence was adjudged. 

2

The memorandum was submitted contemporaneously with appellant’s Rule for 

Courts-Martial [hereinafter R.C.M.] 1105 matters.

3

The adjudged reduction in grade was also effective fourteen days after the sentence 

was adjudged. See UCMJ art. 57(a).
DEAN—ARMY 20140058

3

In the addendum dated 19 March 2014, the Staff Judge Advocate (SJA)

acknowledged appellant’s request for retroactive deferment and waiver of automatic 

forfeitures to be paid to appellant’s mother for financial support, advised the CA

that no corrective action was required, and recommended that he approve the 

adjudged sentence. The SJA did not provide any reasons why the CA should or 

should not approve appellant’s request for deferment and waiver of automatic 

forfeitures. The addendum was silent as to appellant’s request for deferment of the 

adjudged reduction in grade. Appellant’s 5 March 2014 request for deferment and 

waiver of automatic forfeitures and deferment of the adjudged reduction in grade

was an enclosure to the addendum. On 19 March 2014, the CA signed a document 

titled “Direction of the Convening Authority,” which stated: “After reviewing the 

Addendum to the Staff Judge Advocate’s Post-Trial Recommendation and each of 

the enclosures listed therewith, the recommendation of the Staff Judge Advocate 

dated 19 March 2014 is: approved.” 

Appellant’s assignment of error has two parts. First, appellant avers the 

record is insufficient to show the CA took action on appellant’s 5 March 2014 

request for deferment of automatic forfeitures and adjudged reduction in grade and 

waiver of automatic forfeitures. While the SJA’s addendum referenced appellant’s 

request for deferment and waiver of automatic forfeitures, the SJA recommended 

that no corrective action was required and that the CA approve the adjudged 

sentence. The SJA made no recommendation regarding whether appellant’s request 

for deferment and waiver of automatic forfeitures should be granted or denied. The 

addendum did not reference appellant’s request for deferment of adjudg ed reduction 

in grade. The CA approved the SJA’s recommendation. Second, appellant argues 

that even if the CA acted on appellant’s request for deferment, the action was not in 

accordance with United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), because the CA 

did not include the reasons why he denied appellant’s request for deferment of 

automatic forfeitures and adjudged reduction in grade. Appellant alleges he has 

established a colorable showing of possible prejudice because the errors by the SJA 

and the CA’s failure to act upon and potentially grant appellant’s request resulted in 

financial loss to his mother. Appellant asks that we send his case back to the CA for 

a new review and action.

The government argues the SJA’s statement in the addendum that no 

corrective action is required and his recommendation that the CA approve the 

adjudged sentence was an implicit recommendation that the CA disapprove 

appellant’s request for deferment and waiver of automatic forfeitures. The 

government further argues that the CA’s summary denial of deferment and waiver 

without a detailed analysis was not error. Finally, the government avers appellant 

failed to clearly request deferment of the adjudged reduction in grade because 

appellant’s memorandum referenced only a request for deferment of the adjudged 

reduction in grade in the subject block and towards the end of the memorandum and, 
DEAN—ARMY 20140058

4

perhaps, the request was a typographical error from a different request for 

clemency.4 

We find that appellant’s request for deferment of the adjudged reduction in 

grade was clear and unequivocal. It was in appellant’s interest to request deferment

of the adjudged reduction in grade to maximize the retroactive deferment of 

automatic forfeitures if approved by the CA. If the convening authority had 

retroactively deferred automatic forfeitures and deferred appellant’s adjudged 

reduction in grade, appellant would have received pay and allowances at the E-4 rate 

rather than the E-1 rate during the period of deferment. 

We further find the record sufficiently reflects the CA reviewed, considered, 

and acted on appellant’s 5 March 2014 request for retroactive deferment of 

automatic forfeitures, waiver of automatic forfeitures, and retroactive deferment of 

adjudged reduction in grade. The SJA enclosed a copy of appellant’s request with 

the addendum. The CA stated in writing that he reviewed each of the enclosures to 

the addendum.5

We now analyze whether the CA erred in failing to set forth a specific basis 

for denying appellant’s request for deferment of automatic forfeitures and the 

adjudged reduction in grade. 

Rule for Courts-Martial 1101(c) authorizes a CA, in his discretion, to grant or 

deny a request to defer a sentence to confinement, forfeitures, or reduction in grade. 

The decision of the CA shall be in writing with a copy provided to the accused. 

R.C.M. 1101(c)(3). The CA’s decision is reviewed by appellate courts for an abuse 

of discretion. R.C.M. 1101(c)(3). Although R.C.M. 1101(c) does not require the 

CA to set forth reasons for his decision, our superior court held that when a CA 

“acts on an accused’s request for deferment of all or part of an adjudged sentence, 

4

The government posits that appellant failed to establish that appellant’s mother was 

a qualified dependent eligible to receive waived forfeitures. See R.C.M. 1101(d)(3); 

37 U.S.C. § 401. We agree.

5 We note appellant’s request for retroactive deferment of adjudged reduction in 

grade was intended to maximize the amount of forfeitures available for appellant to 

support his mother. Despite the SJA’s failure to specifically reference appellant’s 

request for deferment of the adjudged reduction in grade in the addendum, such a 

deferment would have added nothing in financial support for appellant’s mother 

given that the CA denied appellant’s request for retroactive deferment of automatic 

forfeitures. Appellant offered no other basis in support of his request to defer his 

adjudged reduction in grade.
DEAN—ARMY 20140058

5

. . . [the CA] must include the reasons” for either granting or denying the accused’s 

request for deferment. Sloan, 35 M.J. at 7; see also R.C.M. 1101(c)(3) discussion 

(“If the request for deferment is denied, the basis for the denial should be in writing 

and attached to the record of trial.”). 6 Our court has applied the requirement for the 

CA to include reasons when acting on a request to defer automatic forfeitures 

pursuant to R.C.M. 1101(c). United States v. Zimmer, 56 M.J. 869 (Army Ct. Crim. 

App. 2002).7

The CA summarily denied appellant’s request for deferment of automatic 

forfeitures and adjudged reduction in grade. This was error. See id. at 874.

However, a CA’s failure to include reasons for denial does not entitle appellant to 

relief absent credible evidence that the CA’s denial was for unlawful or improper 

reasons. Id. Appellant must make a “colorable showing of possible prejudice ” that 

the CA would have granted the deferment absent consideration of the unlawful or 

improper reason. Id. (citing United States v. Wheelus, 49 M.J. 283, 289 (1998)).

6

Sloan was decided prior to Congressional amendments to the Uniform Code of 

Military Justice authorizing automatic forfeitures and Presidential amendments to 

the Manual for Courts-Martial implementing rules regarding deferment and waiver 

of automatic forfeitures. See Manual for Courts-Martial, United States [hereinafter 

MCM] (2012 ed.), App’x 21, R.C.M. 1101(c)-(d) analysis, at A21-83. 

7 Unlike deferments, R.C.M. 1101(d) does not provide for abuse of discretion review 

of a CA’s decision regarding waiver of automatic forfeitures. Both the Navy 

Marine-Corps Court of Criminal Appeals and the Air Force Court of Criminal 

Appeals have held there is no requirement for a CA to state reasons for denying a 

request to waive automatic forfeitures. See United States v. Quintin, 47 M.J. 798, 

801 (N.M. Ct. Crim. App. 1998); United States v. Gentry, ACM S31361, 2008 CCA 

LEXIS 454, at *9 (A.F. Ct. Crim. App. 30 Oct. 2008). Our court in Zimmer noted 

the President has not directed that a CA’s denial of waiver of automatic forfeitures 

be in writing, served on the accused, or subject to judicial review and cited to 

Quintin’s holding that the CA is not required to state reasons for denying a request

to waive automatic forfeitures. Zimmer, 56 M.J. at 872 n.4. We note that the 

Secretary of the Army requires the CA to show in the action any deferment of 

adjudged or automatic forfeitures, any deferment of automatic reduction in grade, 

and any waiver of automatic forfeitures. See Army Reg. 27-10, Legal Services: 

Military Justice [hereinafter AR 27-10], paras. 5-32.a, 5-29.e (3 Oct. 2011). If the 

CA has approved waiver of automatic forfeitures for a qualified dependent, the 

action must identify the person who will be receiving the waived forfeitures. See 

AR 27-10, para. 5-32.a.
DEAN—ARMY 20140058

6

In this case, appellant makes no suggestion and there is no evidence that t he 

convening authority denied appellant’s request for retroactive deferment of 

automatic forfeitures and adjudged reduction in grade for any unlawful or improper 

reason. Appellant has not established a colorable showing of possibl e prejudice to 

warrant relief.

Providence of appellant’s plea to conduct that is service discrediting 

and prejudicial to good order and discipline in the armed forces

We now turn to appellant’s allegation pursuant to Grostefon that he was not 

provident to Specifications 1 and 2 of the Charge because he did not describe nor 

understand how his conduct was service discrediting or prejudicial to good order and 

discipline in the armed forces. The government agrees with appellant that he was 

not provident to the portion of the terminal element pertaining to prejudice to good 

order and discipline in the armed forces, but argues that appellant providently pled 

to service discrediting conduct.

Each specification of possession of child pornography alleged appellant’s

conduct was in violation of clause 1 (conduct prejudicial to good order and 

discipline in the armed forces) or clause 2 (conduct of a nature to bring discredit 

upon the armed forces) of Article 134, UCMJ. “Conduct prejudicial to good order 

and discipline is conduct that causes a reasonably direct and palpable injury to good 

order and discipline.” United States v. Cendejas, 62 M.J. 334, 340 (C.A.A.F. 2006); 

see also MCM (2008 ed.), pt. IV, ¶ 60.c.(2)(a). Conduct that is service discrediting 

is conduct that “tend[s] to bring the service into disrepute if it were known.” United 

States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011); see also MCM (2008 ed.), 

pt. IV, ¶ 60.c.(3).

We accept the government’s concession and hold there is a substantial basis in 

law and fact to question appellant’s pleas of guilty to conduct that was prejudicial to 

good order and discipline in violation of clause 1 of Article 134, UCMJ. See United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States v. 

Prater, 32 M.J. 433, 436 (C.M.A. 1991)); see also UCMJ art. 45(a); R.C.M. 910(e). 

The stipulation of fact is silent as to this portion of the element and the military 

judge did not elicit an adequate factual basis during the colloquy with appellant to 

support his pleas to committing conduct prejudicial to good order and discipline.

We are satisfied, however, that appellant’s descriptions of the service discrediting

nature of his conduct during the colloquy evidenced his understanding, knowing, and 

voluntary admission that his conduct was of a nature to bring discredit upon the 

armed forces.
DEAN—ARMY 20140058

7

CONCLUSION

We affirm only so much of the findings of guilty of the Charge and its 

specifications as provide:

SPECIFICATION 1: In that Specialist (E-4) Chandler W. 

Dean, US Army, did, on or about 23 May 2011 and 02 

June 2011, at or near Fort Sill, Oklahoma, wrongfully and 

knowingly possess 20 images and 3 videos of child 

pornography on his laptop, which conduct was of a nature 

to bring discredit upon the Armed Forces.

SPECIFICATION 2: In that Specialist (E-4) Chandler W. 

Dean, US Army, did, on or about 23 May 2011 and 

02 June 2011, at or near Fort Sill, Oklahoma, wrongfully 

and knowingly possess 2 videos of child pornography on 

his cellphone, which conduct was of a nature to bring 

discredit upon the Armed Forces. 

 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and in accordance with the principles set forth in United States v. Winckelmann, 

73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 

(C.M.A. 1986), the sentence is AFFIRMED. All rights, privileges, and property, of 

which appellant has been deprived by virtue of that portion of the findings set aside 

by this decision, are ordered restored.

Judge KRAUSS and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: