IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Charles W. DAVIS, Lieutenant Commander 

U.S. Navy, Appellant 

No. 98-0497 

Crim. App. No. 9600585 

United States Court of Appeals for the Armed Forces 

Argued November 9, 2004 

Decided March 4, 2005 

ERDMANN, J., delivered the opinion of the Court, in which 

GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined. 

Counsel 

For Appellant: Captain Richard A. Viczorek, USMC (argued); 

Lieutenant Travis J. Owens, JAGC, USNR (on brief). 

For Appellee: Lieutenant Craig Poulson, JAGC, USN (argued); 

Lieutenant Colonel William K. Lietzau, USMC, and Lieutenant 

Commander Monique A.S. Allen, JAGC, USNR (on brief); Colonel 

M.E. Finnie, USMC, Commander Charles N. Purnell, JAGC, USN, and 

Lieutenant Frank L. Gatto, JAGC, USNR. 

Military Judge: Charles R. Hunt 

This opinion is subject to editorial correction before final publication. 
2

Judge ERDMANN delivered the opinion of the Court. 

 Lieutenant Commander (LCDR) Davis was tried at a general 

court-martial with members on charges resulting from the sexual 

abuse of his stepdaughter, whom he adopted, over a seven-year 

period. After mixed pleas, he was found guilty of rape of a 

child, rape, forcible sodomy upon a child, forcible sodomy, 

indecent liberties with a child, and indecent liberties, in 

violation of Articles 120, 125, and 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925, and 934 (2000), 

respectively. He was sentenced to confinement for life and 

forfeiture of $2,500.00 pay per month for 24 months. The 

convening authority approved the sentence, but suspended 

execution of the forfeitures on the condition that Davis 

maintain an allotment of all disposable pay and allowances to 

his wife. The Navy-Marine Corps Court of Criminal Appeals 

affirmed the findings and sentence on December 30, 1997. United 

States v. Davis, 47 M.J. 707 (N-M. Ct. Crim. App. 1997). 

In his initial appeal to this court, Davis claimed that he 

received ineffective assistance of counsel regarding the 

sentencing strategy employed at his trial. We found that the 

competing affidavits submitted on the issue of ineffective 

assistance of counsel warranted a fact-finding hearing to 

determine the nature of the legal advice provided to Davis. 

United States v. Davis, 52 M.J. 201, 206-07 (C.A.A.F. 1999). We 
3

returned the record to the Judge Advocate General of the Navy 

for a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 

37 C.M.R. 411 (1967). 

A DuBay hearing was held in January 2000 where the military 

judge received evidence and made findings of fact. The Court of 

Criminal Appeals adopted the findings of the military judge, 

rejected Davis’s claims of ineffective representation, and again 

affirmed the findings and sentence. United States v. Davis, 

NMCM 9600585 (N-M. Ct. Crim. App. July 24, 2003). 

 The Sixth Amendment guarantees that a servicemember tried 

by court-martial will receive competent, effective legal 

representation. Davis’s sentencing strategy was designed to 

avoid a punitive discharge in return for a longer period of 

confinement for the express purpose of protecting retirement 

benefits for his family. Because Navy regulations and policy at 

the time would not have allowed Davis to retire after his 

conviction, we granted review to determine whether Davis had 

received competent, effective legal advice during sentencing. 

BACKGROUND 

 Lieutenant Commander Davis was a Naval Flight Officer 

assigned to the USS ENTERPRISE (CVN 65). At the time of trial 

he was forty-two years old and had completed almost seventeen 

years of military service. Because he had been passed over for 

promotion to commander twice, Davis was eligible to apply for 

voluntary retirement under the discretionary Temporary Early 
4

Retirement Authority (TERA).1

 Prior to the commencement of 

proceedings in this case, Davis had applied for retirement under 

TERA rather than face involuntary separation from the Navy. He 

was approved for a TERA retirement with an effective date of 

December 1, 1994. Prior to this retirement date, Davis’s 

misconduct was discovered and the processing of his TERA 

retirement was terminated.2

 During sentencing, Davis made a brief unsworn statement. He 

informed the members that he had been passed over twice and that 

he was eligible to retire under TERA. Under questioning from his 

attorney, Davis indicated that he desired more confinement to 

offset forfeitures and a dismissal so that he could “save” his 

retirement and provide for his family. The Government argued for 

a sentence that included forty years of confinement and a 

dismissal from the Navy. Defense counsel presented the defense 

sentencing strategy as follows: 

He told you send him to prison, send him for as long 

as you feel that it’s necessary, but protect his 

family because he didn’t. The bottom line, that’s 

what happened, he didn’t protect them, but you have an 

opportunity to do what he didn’t. And punish him and 

send him to prison for as long as you think is 

necessary, add extra years if you -– to give the 

family money, if you think that you need to balance 

 

1

 The Temporary Early Retirement Authority (TERA) was enacted in 

§ 4403 of Pub. L. No. 102-484, 106 Stat. 2702 (1992). To 

implement the program, the Navy promulgated NAVADMIN 093/95, 

Temporary Early Retirement Program for Officers. 

2

 Paragraph 7, Subsection B, of NAVADMIN 093/95 provided: “An 

officer who is under adverse disciplinary . . . action under the 

[UCMJ] . . . may not apply for early retirement until the action 

is resolved in favor of the member.” (Emphasis added.) 
5

that, but he asks you to do that, and that’s what 

we’re asking today. Show some mercy for that family. 

You don’t have to show mercy for him, put him in jail, 

show mercy for the family because they need it right 

now and you’re the only ones that can give him -– give 

them that. 

You have an actuarial table that I have given to you 

as Defense Exhibit B, and that shows you the value of 

retirement, and I think that’s probably the worst 

thing in his case is he actually was retirementeligible. His family would have been taken care of 

financially and medically, but they’re not, but he’s 

still eligible for that. . . . Please consider not 

dismissing Lieutenant Commander Davis from the Navy. 

Arrangements can be made for his retirement to go to 

the family. He won’t get a dime, he’s going to be in 

prison. What’s he going to do with money? They will 

get medical benefits, they will get money, if he 

survives they can try to rebuild their lives, and we 

ask you to consider that and consider that family. 

 

At the request of the defense, a sentencing instruction was 

given informing the members that “[a] dismissal deprives one of 

all retirement benefits[.]” As noted, Davis was sentenced to 

confinement for life and forfeiture of $2,500 pay per month for 

twenty-four months, but no dismissal. 

 In a post-trial request for clemency, Davis’s defense 

counsel asked the convening authority to suspend the adjudged 

forfeitures so that Davis’s family would have the means to 

subsist. This clemency request stated, in part: 

A less immediate, but no less important reason to 

suspend the forfeiture of pay is that the feasibility 

of LCDR Davis receiving retirement pay is nonexistent. 

The members did not award a dismissal in this case to 

ensure that the family had access to financial and 

medical resources that they are desperately in need 

of. I researched the issue as to whether or not LCDR 

Davis would be allowed to retire and was dismayed to 
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find that the system was not going to allow retirement 

despite the court-martial members[’] wishes. 

His defense counsel further explained that she had been 

informed that Davis would be required to show cause why he 

should not be eliminated from the Navy. She explained that even 

if Davis were recommended for retention after the show cause 

board, he would not be allowed to retire voluntarily under TERA. 

Eligibility for TERA retirement required that an adverse action 

be “resolved in favor of the member.” Even though Davis was not 

dismissed at his court-martial, “the fact that LCDR Davis was in 

jail [the disciplinary action against him] was considered to not 

be resolved in his favor[.]” The convening authority approved 

the sentence but suspended the adjudged forfeitures contingent 

upon Davis providing “all disposable pay and allowances” to his 

family. 

 A show cause proceeding was initiated almost a year later 

to determine whether Davis should be separated from the Navy. 

The board recommended that Davis be separated from the Navy with 

an “other than honorable” discharge. The recommendation was 

accepted and in April 1997 Davis was discharged with a 

separation code denoting “misconduct, commission of a serious 

offense.” 

 At the DuBay hearing held in January 2000, Davis and his 

two military defense counsel testified about the advice Davis 

had been given regarding his eligibility for retirement as it 
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related to the defense sentencing strategy. The military 

judge’s findings of fact reflect that defense counsel informed 

Davis that while obtaining a TERA retirement would be difficult, 

it would be possible: 

e. . . . Both counsel advised him that, even if he was 

not dismissed as a result of the court-martial, he 

would unquestionably have to go through the 

administrative discharge process. Counsel believed 

that, armed with a member’s [sic] sentence of no 

dismissal, they could credibly argue for a favorable 

result at a [Board of Inquiry]. A favorable result 

would be not to receive an other than honorable 

discharge. Such a result would raise the issue of 

TERA eligibility. . . . At that point, the worst case 

for LCDR Davis, that is if BUPERS [Bureau of Naval 

Personnel] found LCDR Davis ineligible for TERA, would 

still entitle him to severance pay and the limited 

attendant military benefits. All of these 

consequences were communicated to LCDR Davis. 

. . . . 

i. After the member’s [sic] clear rejection of LCDR 

Davis’s credibility and his resulting conviction, the 

defense counsel believed that arguing for more 

confinement in lieu of a dismissal was their only 

effective extenuation and mitigation strategy. . . . 

A sentence to no dismissal would preserve the 

possibility of maintaining an income stream for the 

family, as well as medical benefits. . . . 

j. Defense counsel effected this strategy through 

LCDR Davis’s unsworn statement, LCDR Tinker’s 

sentencing argument, and the defense’s tailored 

sentencing instruction on the effect of a dismissal. 

Because of their awareness of the limitations of 

bringing up collateral consequences of a conviction 

during pre-sentencing, defense counsel presented their 

strategy to the members in an unequivocal manner: he 

was retirement eligible under TERA, his family needed 

his retirement benefits, do not sentence him to a 

dismissal. As a result, the reality, which included 

the uncertainties of the administrative discharge 

process and the eligibility for TERA, was not brought 

to the attention of the members. 
8

 

Despite framing a sentencing strategy centered on the 

possibility of TERA retirement, it was not until about a month 

after trial that defense counsel learned telephonically that the 

Bureau of Navy Personnel (BUPERS) “did not intend to allow LCDR 

Davis to retire under TERA.” Specifically, defense counsel was 

informed during that phone conversation that no TERA retirement 

would be considered unless pending disciplinary action was 

“resolved in favor of the member” by acquittal. 

DISCUSSION 

Ineffective Assistance of Counsel

 The Sixth Amendment right to effective assistance of 

counsel at trials by court-martial is a fundamental right of 

servicemembers. United States v. Knight, 53 M.J. 340, 342 

(C.A.A.F. 2000)(citing United States v. Palenius, 2 M.J. 86 

(C.M.A. 1977)). In reviewing claims that counsel rendered 

ineffective representation we apply the two-pronged test for 

ineffective assistance of counsel set forth by the United States 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 

The burden on each prong rests with the appellant challenging 

his counsel’s performance. 

 First, an appellant must show that counsel’s performance 

fell below an objective standard of reasonableness -– that 

counsel was not functioning as counsel within the meaning of the 

Sixth Amendment. United States v. Terlep, 57 M.J. 344, 349 
9

(C.A.A.F. 2002). Our review of counsel’s performance is highly 

deferential and is buttressed by a strong presumption that 

counsel provided adequate professional service. United States 

v. Garcia, 59 M.J. 447 (C.A.A.F. 2004). Thus, an appellant's 

burden is especially heavy on this deficiency prong of the 

Strickland test. United States v. Adams, 59 M.J. 367 (C.A.A.F. 

2004). An appellant must establish a factual foundation for a 

claim of ineffectiveness; second-guessing, sweeping 

generalizations, and hindsight will not suffice. See United 

States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002); United States 

v. Alves, 53 M.J. 286, 289 (C.A.A.F. 2000); United States v. 

Gray, 51 M.J. 1, 19 (C.A.A.F. 1999). The presumption of 

competence is rebutted by a showing of specific errors made by 

defense counsel that were unreasonable under prevailing 

professional norms. United States v. McConnell, 55 M.J. 479, 

482 (C.A.A.F. 2001). 

 The second prong of an appellant's burden requires a 

showing of prejudice flowing from counsel’s deficient 

performance. The appellant must demonstrate such prejudice as 

to indicate a denial of a fair trial or a trial whose result is 

unreliable. United States v. Dewrell, 55 M.J. 131, 133 

(C.A.A.F. 2001). The appropriate test for prejudice under 

Strickland is whether there is a reasonable probability that, 

but for counsel’s error, there would have been a different 
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result. United States v. Quick, 59 M.J. 383, 387 (C.A.A.F. 

2004). 

 Ineffective assistance of counsel involves a mixed question 

of law and fact. United States v. Anderson, 55 M.J. 198, 201 

(C.A.A.F. 2001). Factual findings are reviewed under a clearly 

erroneous standard. But the ultimate determinations of whether 

an appellant received ineffective assistance of counsel and 

whether the error was prejudicial are reviewed de novo. Id.; 

United States v. Cain, 59 M.J. 285, 294 (C.A.A.F. 2004); United 

States v. McClain, 50 M.J. 483, 487 (C.A.A.F. 1999). 

The Sentencing Strategy

 The entire defense sentencing strategy was to preserve an 

opportunity for Davis to retire under TERA and thereby provide 

support and benefits for his family. The Government argues that 

retirement eligibility under TERA is a collateral matter not 

subject to the Strickland analysis for ineffective assistance of 

counsel. We disagree. While retirement eligibility may well be 

a collateral matter in a different case, it is not so here. The 

potential for a TERA retirement and defense counsel’s advice in 

that regard formed the theme and foundation for the defense 

sentencing strategy. Davis relied on this advice when he asked 

for increased confinement in lieu of a dismissal from the Navy. 

Under these particular facts, we reject any suggestion that the 
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cornerstone of the defense sentencing strategy was merely a 

collateral matter. 

While Davis’s counsel advised him that it would be an 

uphill struggle to achieve a TERA retirement, they held out the 

hope that if he did not receive a dismissal, retirement under 

TERA, while uncertain, was a possibility. Although a critical 

component of the defense sentencing philosophy was based on this 

possibility, Davis’s defense counsel failed to determine the 

meaning and effect of the eligibility language in TERA that an 

officer charged with a UCMJ offense may not “apply for early 

retirement until the action is resolved in favor of the member.” 

Prior to trial, defense counsel did not thoroughly research this 

critical point of eligibility or even call BUPERS to determine 

whether Davis would be eligible to seek TERA retirement. In 

fact, BUPERS policy was that an individual with a felony 

conviction was disqualified from a TERA retirement.3

 Turning to the question of whether Davis has met his burden 

under the first prong of Strickland, we have created a threepart test for determining whether the presumption of competence 

has been overcome: 

 

3

 The government argued that Davis could have been eligible for a 

TERA retirement through a waiver from the Secretary of the Navy 

and therefore the defense strategy was sound. This merely 

underscores the fact that under the eligibility criteria at the 

time, Davis was not eligible for a TERA retirement. We need not 

speculate whether the Secretary of the Navy would have waived 

the eligibility criteria under these circumstances. 
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1. We ask first whether the Appellant's allegations are true 

and, if so, whether there is a reasonable explanation for 

counsel’s actions. 

2. Next, if the allegations are true, we review whether 

defense counsel’s level of advocacy fell measurably below 

the performance standards ordinarily expected of fallible 

lawyers. 

3. Finally, if we find that defense counsel was ineffective, 

we test for prejudice and determine whether there is a 

reasonable probability that, absent the error, there 

would have been a different result. 

United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004); 

United States v. Grigoruk, 52 M.J. 312, 315 (C.A.A.F. 2000). 

 In determining whether Davis’s allegations are true, we are 

mindful that we will not reject findings of fact unless they are 

unsupported in the record. In light of the record, we agree 

with the determination of the Court of Criminal Appeals that 

Davis was not credible when he asserted “that he believed, based 

on the advice from his lawyers, that his TERA retirement 

benefits would automatically result if the court-martial did not 

adjudge a dismissal.” 

Nonetheless, a critical portion of Davis’s allegations is 

confirmed in this record. The military judge found that both 

defense counsel believed that Davis understood their advice that 

there was a chance, although remote, that he could retain 
13

retirement benefits. Davis understood this advice and approved 

the strategy. Even though counsel advised Davis that it would 

be a difficult path to retirement, that advice obviously held 

out the hope that retirement was possible. Therefore, that 

portion of Davis’s allegations is true -- he was led to believe 

there was a chance that somewhere down the road, after his 

conviction, he could be retired under TERA. A single phone 

call, made by defense counsel a month after trial, revealed the 

fallacy of this belief and counsel’s subsequent advice. 

We find no reasonable strategic or tactical reason for the 

flawed advice. The flaw is a direct result of not investigating 

the meaning and effect of eligibility language in the TERA 

regulation as it applied to a member facing adverse action. 

Davis pleaded guilty to very serious offenses. Regardless of 

the outcome on the contested offenses, he would stand convicted 

of felony offenses based on his pleas alone. It strains reason 

to conclude that such a result -– a general court-martial 

conviction involving child sexual-abuse offenses that resulted 

in confinement for life -– might somehow be considered a 

resolution “favorable” to the member. 

Assuming that the application and administration of TERA in 

the Navy is as confusing as the Government claims, that fact 

itself provides greater incentive for counsel to investigate and 

research the area thoroughly before formulating an entire 

sentencing strategy and advising a client to pursue that course. 
14

Yet counsel did not know that under the Navy rules and policy at 

the time, TERA was not an option in this case. Consequently, 

they could not and did not correctly advise Davis. Counsels’ 

sentencing strategy was fundamentally flawed from its inception 

because of a failure to research the critical law and 

regulations. Davis was misadvised and there is no reasonable 

explanation for counsels’ failure to conduct proper research. 

 We next must determine whether counsels’ performance fell 

below that ordinarily expected of fallible lawyers. We find 

that it did. Familiarity with the facts and applicable law are 

fundamental responsibilities of defense counsel. See Wiggins v. 

Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 

U.S. at 690-91 (“[S]trategic choices made after thorough 

investigation of law and facts relevant to plausible options are 

virtually unchallengeable; and strategic choices made after less 

than complete investigation are reasonable precisely to the 

extent that reasonable professional judgments support the 

limitations on investigation.”). A reasonable attorney acting 

on behalf of a client would have researched the meaning and 

effect of TERA’s conditional language prior to embarking on a 

trial or sentencing strategy. The failure to investigate this 

critical component of the defense sentencing strategy precluded 

counsel from exercising informed judgment and fully informing 

Davis of the possible consequences of the strategy. Advising 

Davis and formulating a sentencing strategy based upon what 
15

counsel considered confusing eligibility criteria for TERA was 

risky; not determining the actual meaning of those eligibility 

criteria was unreasonable. We find that counsels’ performance 

was ineffective. 

 We must next test for prejudice and determine whether there 

is a reasonable probability that, absent the error, there would 

have been a different result. Had Davis and his counsel known 

that there was no possibility of a TERA retirement except for a 

Secretarial waiver, there would have been little incentive for 

Davis to ask for increased confinement to offset a possible 

punitive dismissal. Following counsel’s argument that the 

members should maximize Davis’s period of confinement to 

preserve the possibility of his retirement, the members did just 

that. They adjudged the maximum period of confinement 

available. If that possibility had not been presented to the 

members, with the Government arguing for a sentence of forty 

years of confinement and a dismissal, there is a reasonable 

probability that there would have been a different result. 

Davis was therefore prejudiced by the faulty advice and strategy 

of his trial defense counsel. 

DECISION 

 The decision of the Navy-Marine Corps Court of Criminal 

Appeals is affirmed as to the findings, but is reversed as to 

the sentence. The sentence is set aside. The record is 
16

returned to the Judge Advocate General of the Navy. A rehearing 

on the sentence is authorized.