UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600173

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UNITED STATES OF AMERICA

Appellee

v.

BENJAMIN F. MITCHAM, JR.

Lance Corporal (E-3), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel David M. Jones, USMC.

For Appellant: Captain Daniel R. Douglass, USMC.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

USN; Lieutenant James M. Belforti, JAGC, USN. 

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Decided 29 November 2016

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Before CAMPBELL, RUGH, and HUTCHISON, Appellate Military Judges

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This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

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PER CURIAM:

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

pursuant to his plea, of assault consummated by battery, in violation of 

Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928. The 

military judge sentenced the appellant to 60 days’ confinement, reduction to 

pay grade E-1, and a bad-conduct discharge. The convening authority (CA) 

approved the sentence as adjudged. 
2

Upon review, we specified one issue: did the appellant receive the 

effective assistance of counsel in his post-trial representation when detailed 

defense counsel requested relief that the CA had no authority to grant? After 

considering the pleadings, we find no error materially prejudicial to the 

appellant’s substantial rights, and affirm the findings and sentence. 

I. BACKGROUND

The appellant was assigned to the Marine Corps Security Force Regiment 

onboard Naval Submarine Base (NSB) King’s Bay, Georgia, where he worked 

alongside Lance Corporal (LCpl) JR. The appellant and LCpl JR were both 

married to other people and lived onboard NSB King’s Bay less than a 

quarter-mile from each other. The couples became friends and routinely 

socialized with each other. 

As part of their duties, the appellant and LCpl JR stood watch at the NSB 

King’s Bay Waterfront Restricted Area (WRA), a secure area where the 

Marines on duty remained for approximately a week at a time, rotating 

through different security watches. During their duty rotation, Marines were 

typically not permitted to return home, but slept within the WRA. On 1 July 

2015, the appellant’s section, which included LCpl JR, had duty inside the 

WRA. However, the appellant’s section leader authorized him to leave “the 

wire” to attend to his pregnant wife.1

After telling his wife he was going to go for a run, the appellant, instead, 

made his way to LCpl JR’s apartment where LCpl JR’s wife, SR, was home 

alone. The appellant repeatedly knocked on her door and texted her, asking if 

she was home, before SR opened the door. The appellant, without further 

invitation, walked past SR into her living room. Once inside SR’s apartment, 

the appellant complained that his wife had not been “taking care of him,” 

remarked how attractive SR was, and noted that if he and SR were married, 

he would have “been on her” the moment he entered the apartment.2 The 

appellant proceeded to stare at SR’s breasts and make inappropriate 

comments about her body. SR attempted to reassure the appellant about his 

own marriage and, hinting that he needed to leave, informed him that she 

had to get ready for work. 

SR then excused herself, went to her bedroom to change, and the 

appellant followed her. Once in the bedroom, the appellant continued his 

comments about how attractive SR was and described the various sex acts he 

would like to do with her. At some point while in the bedroom, the appellant 

 

1 Record at 69-70. Marine Security Force Regiment personnel referred to their 

duty rotation within the WRA as a “week in the wire.”

2 Prosecution Exhibit 1 at 3.
3

hugged SR, without her consent, by placing his arms around her torso. 

Feeling uncomfortable with the appellant’s unwanted advances, SR told the 

appellant he needed to leave, went into the adjacent bathroom, locked the 

door and changed for work. When she emerged from the bathroom five 

minutes later, SR made her way back into the living room to grab her keys, 

where appellant approached and cornered her. After telling her “you’ve got it 

all,” the appellant reached down and ran both of his hands along SR’s thighs 

and then touched SR’s breasts over her clothing.3 At that point, the 

appellant’s wife called, interrupting the appellant’s advances, and he left SR’s 

apartment telling her she should call or text him later.

Following the appellant’s guilty plea, the CA’s staff judge advocate (SJA) 

correctly advised the CA that the CA could not “disapprove, commute or 

suspend” the adjudged punitive discharge.4 In response, trial defense counsel 

submitted clemency matters pursuant to RULE FOR COURTS-MARTIAL 1105,

MANUAL FOR COURTS MARTIAL, UNITED STATES (2012 ed.), asking that the 

CA “set aside the conviction in lieu of nonjudicial punishment” and “set aside 

the [b]ad-[c]onduct [d]ischarge in lieu of an administrative discharge.”

5

Notably, trial defense counsel conceded that “reduction in rank . . . may be 

merited in this case.”6 In his action, the CA noted the discrepancy between 

the SJA’s advice and trial defense counsel’s request, remarking that, after 

careful consideration, “even if I had the authority to disapprove or suspend 

the [b]ad-[c]onduct [d]ischarge, I would not exercise it in this case.”7

II. DISCUSSION

Under recent changes to Article 60, UCMJ, except for only the most minor 

offenses, a CA can no longer set aside guilty findings.

8 In acting on sentences, 

CAs can no longer “disapprove, commute, or suspend in whole or in part an 

adjudged sentence of confinement for more than six months or a sentence of 

dismissal, dishonorable discharge, or bad conduct discharge” unless certain 

exceptions exist.9 As a result of these changes, the CA could not grant trial 

defense counsel’s requested relief. United States v. Kruse, __ M.J. __, No. 

 

3 Id. at 4.

4 SJAR dated 8 Apr 2016 at 2. 

5 Trial Defense Counsel ltr 5813 Ser DSO/fal of 30 Apr 16 at 1.

6 Id. at 3.

7 Convening Authority Action at 3.

8 National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 

127 Stat. 672, 956 (2013).

9 See Id. at 956-57. Neither of the exceptional circumstances are present in this 

case.
4

201600101, 2016 CCA LEXIS 650, at *8-10 (N-M. Ct. Crim. App. 3 Nov 2016) 

(holding such an action by the CA to be ultra vires).

“By virtue of Article 27, UCMJ, 10 U.S.C. §827, as well as the Sixth 

Amendment of the Constitution, a military accused is guaranteed the 

effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88 

(C.M.A. 1987) (citations omitted). That right extends to post-trial 

proceedings. United States v. Cornett, 47 M.J. 128, 133 (C.A.A.F. 1997). In 

reviewing claims of ineffective assistance of counsel, we “look at the questions 

of deficient performance and prejudice de novo.” United States v. Datavs, 71 

M.J. 420, 424 (C.A.A.F. 2012). However, we “must indulge a strong 

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

professional assistance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 

2007) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). Thus, the 

appellant bears the burden of demonstrating (1) that his counsel’s 

performance was deficient to the point that he “was not functioning as the 

‘counsel’ guaranteed . . . by the Sixth Amendment” and (2) that the deficient 

performance prejudiced the defense. Id. (citations and internal quotation 

marks omitted).

Courts are not required, however, to determine whether counsel’s 

performance was deficient before first examining whether the appellant 

suffered any prejudice. Datavs, 71 M.J. at 424-25. In evaluating claims of 

post-trial ineffective assistance of counsel, courts must give an appellant the 

benefit of the doubt and find that “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.’” United States v. 

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

Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). In this case, we conclude that 

the appellant has not made a colorable showing of possible prejudice. The 

appellant has not articulated any specific prejudice that resulted from the 

request for unauthorized relief, and has submitted no evidence indicating 

how his trial defense counsel’s clemency submission contrasted with his 

wishes.10 Likewise, the appellant fails to adequately describe what the CA 

“might have done to structure an alternative form of clemency.” United States 

v. Capers, 62 M.J. 268, 270 (C.A.A.F. 2005). Indeed, at the time of the CA’s 

 

10 See e.g., United States v. Starling, 58 M.J. 620, 622-23 (N-M. Ct. Crim. App. 

2003) (finding that “bare allegations” of “inadequate representation” are not 

“seriously entertained” by courts without submission of an affidavit showing how 

counsel acted contrary to appellant’s wishes); United States v. Pierce, 40 M.J. 149, 

151 (C.M.A. 1994) (finding that vague or general intimations with regards to what 

the appellant would have submitted to the convening authority is insufficient to show 

prejudice).
5

action, the appellant had already served the adjudged 60 days’ confinement.

The only additional punishments the CA might have acted upon were the 

appellant’s reduction in rank—which trial defense counsel conceded was an 

appropriate punishment—and retroactive deferment of the automatic 

forfeiture of two-thirds pay per month pursuant to Article 58b, UCMJ, during 

the previously served confinement period. But the appellant has provided no 

evidence to suggest that he desired any relief from either the reduction in 

rank or the automatic forfeitures, or, alternatively, that he was improperly 

advised regarding any potential clemency. 

III. CONCLUSION

The findings and sentence as approved by the CA are affirmed.

 For the Court 

 R.H. TROIDL 

 Clerk of Court