## 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 201 40058

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

C arling M. Dunham, JA (on brief)

.

10 Febru ary 20 1 5

--------------------------------- OPINION OF THE COURT

---------------------------------

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 , U niform Code of Military Justice [hereinafter UCMJ]

, 10 U.S.C. § 934 (2006). Th e military judge sentenced appellant to a bad

- conduct

discha rge, confinement for seven months, and reduction to the gra de 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. Groste

fon , 12 M.J. 431 (C.M.A. 1982)

, and find one which merits discussion and

relief.DEAN

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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 allowa nces effective 29 January 2014 because h is

sentence included more than six months confinement. See UCMJ art s . 58 b (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

c onvening 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 grade 2 :

[Appellant] specifically requests that any w aiver/deferment that is granted be utilized for the benefit of providing for his elderly mother

. . . . [Appellant’s mother] is a wid ow who currently resides alone . . . . [Appellant] assisted in the financial support of his mother prior to his Court

Martial. 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, a ppellant 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

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3

In the a ddendum 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

tha t 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 a ddendum wa s 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 a ddendum. On 19 March 2014, th e 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 th e Staff Judge Advocate

dated 19 March 2014 is : approved.”

Appellant’s assignment of error has t wo p arts

. First , appellant avers the

record is insufficient to show the CA took action on appellant’s 5 March 2014 request for deferment of automatic forfeit ures 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, a ppellant argues that even if the CA acted on ap pellant’s request for deferment

, the action was not in

accordance with U nited States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992)

, because th e 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 error s 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 recommend ation 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

governmen t further argues that the CA ’s summary denial of deferment and waiver

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

fa iled 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

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4

perhaps, the request was a typographical error from a different request for clemency. 4

We find that appellant ’s request for defer ment 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 for feitures 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 dur ing 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 discr etion. 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 c ourt held that when a CA “acts on an accused’s request for deferment of al l or part of an a djudged 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. Des pite 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

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5

. . . [the CA] mus t inc lude 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 c ourt has applied the requirement for the CA to include reasons when acting on a request to defer a utomatic 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 i d. at 874.

H owever, 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 Justic e 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 2 1, 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 waive r of automatic forfeitures. Both the Navy

Marine

- Corps Court of Criminal Appeals and the Ai r 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 S31 361

, 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], para s . 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 pers on who will be receiving the waived forfeitures. See

AR 27

- 10, para. 5

- 32.a.DEAN

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6

In this case, appellant makes no suggestion and there is no evidence that t he convening authority denied appellant’s request for retroactive defer ment of

automatic forfeitures and adjudged reduction in grade for an y unlawful or improper

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

warrant relie f.

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

and prejudicial to good order and discipline in the armed forces

W e 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 plea s 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, 3 22 (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 plea s 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 evidence d his understanding , knowing, and voluntary admission that his conduct was of a nature to bring di scredit upon the

armed forces.DEAN

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7 CONCLUSION

We affirm only so much of the finding s of guilty of the Charge and its

s pecification s as provide :

SPECIFICATION 1: In that Speci alist (E

- 4) Chandler W.
Dean, U S Army, d id, 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 natu re to bring discredit upon the A rmed F orces.

SPECIFICATION 2: In that Specialist (E

- 4) Chandler W. Dean, U S 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 cond uct was of a natu re to bring discredit upon the Armed F orces.

Reassessing the sentence on the basis of the error s noted, the entire record, and in accordance with the principles set forth in United States v. Win ck e l ma n n , 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 res tored.

Judge KRAUSS a nd Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: