UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, GALLAGHER, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist CHARLES A. FOXX 

United States Army, Appellant 

ARMY 20110272 

Headquarters, Fort Bliss 

David H. Robertson and Robert Bowers, Military Judges 

Colonel Francis P. King, Staff Judge Advocate 

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

Jamison, JA; Major Jacob D. Bashore, JA (on brief). 

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA; 

Captain Jessica J. Morales, JA (on brief). 

29 May 2013 

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

OPINION OF THE COURT 

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

COOK, Senior Judge: 

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

pursuant to his pleas, of bigamy in violation of Article 134, Uniform Code of 

Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge 

sentenced appellant to a bad-conduct discharge, confinement for two months, 

forfeiture of $900.00 pay per month for two months, and reduction to the grade of 

E-1. The convening authority (CA) approved the adjudged sentence. 

Appellant raises two assignments of error to this court, both of which merit 

discussion but no relief.1

                                                           

1

 Appellant also personally raises several issues pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merit discussion or relief. 
FOXX—ARMY 20110272 

2 

BACKGROUND 

 The instant case under review is a result of appellant’s second court-martial in 

2011. Appellant’s first court-martial took place on 27 January 2011 and Captain 

(CPT) TS2 served as appellant’s trial defense counsel. Appellant, then a Sergeant 

First Class (SFC), was convicted of wrongfully and without authority wearing 

numerous badges and tabs on multiple occasions. His approved sentence included 

confinement for four months and reduction to the grade of E-4. Appellant, on 7 

January 2011, while awaiting trial on this first set of charges and legally married to 

Ms. WF, married Ms. WO. This second marriage led to appellant being courtmartialed for bigamy on 5 April 2011. 

 Appellant’s first assignment of error, in general, alleges his primary trial 

defense counsel, the same CPT TS as at the first trial, provided ineffective 

assistance of counsel because he: (1) failed to conduct a proper investigation and did 

not present “vital” evidence during sentencing; and (2) “allowed” appellant, who had 

sixteen years of service, to request a bad-conduct discharge during sentencing. In 

his second assignment of error, appellant alleges he was denied effective post-trial 

assistance of counsel because the same CPT TS failed to submit two letters as part of 

his request for clemency to the convening authority. 

LAW AND DISCUSSION 

Pretrial and Trial Ineffective Assistance of Counsel Allegations 

 As a preliminary matter, we note neither appellant nor appellate counsel is 

challenging appellant’s conviction for bigamy. Rather, appellant and appellate 

counsel allege appellant’s sentence, particularly the adjudged bad-conduct discharge, 

was a direct result of the ineffective assistance of counsel provided by CPT TS. 

Ultimately, appellant and appellate counsel request this court set aside the sentence 

and order a sentence rehearing. 

 Regarding the first assignment of error, we begin by reviewing the allegation 

that CPT TS provided ineffective assistance of counsel by “allowing” appellant to 

request a bad-conduct discharge. In his post-trial affidavit, appellant claims CPT TS 

encouraged him to request a bad-conduct discharge at trial; that CPT TS failed to 

explain he was only facing twelve months of confinement; and that in response to 

appellant expressing “concern for losing my career,” CPT TS told him that appellant 

could ask for a bad-conduct discharge at trial and then, if he received a bad-conduct 

discharge, CPT TS would assist appellant in upgrading his discharge, joining the 

                                                           

2

 Captain TS has subsequently been promoted to Major and signed his post-trial 

affidavit as a Major. For simplicity purposes, we will continue to refer to now 

Major TS as CPT TS. 
FOXX—ARMY 20110272 

3 

National Guard, and coming onto active duty, from where appellant could ultimately 

retire. 

 In contrast, CPT TS, in his post-trial affidavit, states he recommended 

appellant “fight for retention” at the second court-martial; that he in fact advised 

appellant the maximum confinement he was facing was only twelve months; and that 

he never advised appellant he could get his bad-conduct discharge upgraded and 

subsequently re-enter and then retire from the Army. Captain TS further stated, 

contrary to his recommendation, appellant’s “primary goal from the time he entered 

confinement” as a result of his first court-martial “was to minimize his confinement, 

with little regard to any secondary effect on his future in the Army or potential for 

future retirement.” 

 In evaluating ineffective assistance of counsel allegations, we apply the 

standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). This 

standard requires appellant to demonstrate: (1) that counsel’s performance was 

deficient, and (2) that this deficiency resulted in prejudice. Id. at 687. Under the 

first part of this test, appellant must show “counsel made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Id. The relevant issue is whether counsel’s conduct failed to meet an 

objective standard of reasonableness or whether it was outside the “wide range of 

professionally competent assistance.” Id. at 690. “On appellate review, there is a 

‘strong presumption’ that counsel was competent.” United States v. Grigoruk, 56 

M.J. 304, 306-307 (C.A.A.F. 2001) (citing Strickland, 466 U.S. at 689). The second 

part of this test is met by showing a “reasonable probability that but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. 

 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 

238.” 

At the outset, the record of trial “compellingly demonstrates” appellant was 

aware the maximum sentence to confinement was twelve months. Following the 

providency inquiry, the trial counsel, on the record, stated the maximum 

confinement appellant faced as a result of his guilty plea was twelve months. 

Appellant’s defense counsel expressly agreed with the stated maximum punishment 

and the military judge then informed appellant the maximum confinement he faced at 

trial was twelve months. Appellant responded he understood the military judge and 
FOXX—ARMY 20110272 

4 

that he had no questions about the maximum punishment to confinement being 

twelve months. 

The record of trial also unequivocally contradicts appellant’s assertion that 

CPT TS encouraged appellant to request a bad-conduct discharge despite having 

sixteen years of military service. To the contrary, the record “compellingly 

demonstrates” the decision to argue for such a discharge was appellant’s alone; 

appellant’s primary concern at sentencing was to avoid confinement; and CPT TS 

fully advised appellant of the ramifications of a punitive discharge. 

First, during the government’s closing argument at sentencing, the trial 

counsel specifically requested that appellant receive at least seven months of 

confinement if the military judge did not adjudge a bad-conduct discharge. It was 

only after this request that appellant sought the attention of his defense counsel and 

requested he argue for a bad-conduct discharge in lieu of confinement. Specifically, 

the record of trial contains the following: 

Military Judge (MJ): Captain [TS], are you prepared to 

present argument on behalf of the accused? 

CPT TS: Just one moment, Your Honor. I am conferring 

with my client. 

MJ: Sure. 

[Pause] 

CPT TS: Ready, Your Honor. 

[The accused and his counsel continued to confer.] 

CPT TS: There is a matter we need to take up, Your 

Honor. 

MJ: Captain [TS], when you say, “We,” who do you 

mean? 

CPT TS: The court, Your Honor. 

MJ: The court. Okay. 

[Pause] 
FOXX—ARMY 20110272 

5 

CPT TS: My client has decided that he would like for me 

to argue for a bad-conduct discharge, Your Honor. We are 

marking the memorandum as an Appellate Exhibit. (App. 

Ex. V). 

Second, the record reflects, in order to ensure appellant understood the 

meaning of a punitive discharge and that he intended to make such a request, the 

military judge confirmed with appellant that: appellant was personally requesting a 

bad-conduct discharge; appellant was aware of the impact this discharge would have 

on his benefits; appellant’s express desire was to be discharged from the Army with 

a bad-conduct discharge; and appellant consented to CPT TS arguing for a badconduct discharge. Most notably, appellant and the military judge engaged in the 

following dialogue: 

MJ: Do you understand a bad-conduct discharge 

terminates your military status and will deprive you of any 

retirement benefits, including retired pay? 

ACC: Yes, Your Honor, I do. 

MJ: Have you thoroughly discussed your desires with your 

defense counsel? 

ACC: Yes, I have, Your Honor. 

MJ: Do you believe you fully understand the ramifications 

of a bad-conduct discharge? 

ACC: Yes, Your Honor, I do. 

MJ: Are you aware that if you do not receive a punitive 

discharge from this court-martial, then your chain of 

command may very well try to administratively separate 

you from the service? 

ACC: Yes, Your Honor, I do. 

MJ: Are you also aware that an administrative separation 

is considered much less severe than a discharge from a 

court-martial and will not stigmatize you with the 

devastating and long-term effects of a discharge from a 

court-martial? 

ACC: Yes, Your Honor, I do. 
FOXX—ARMY 20110272 

6 

MJ: Specialist Foxx, knowing all that I and your defense 

counsel have explained to you, is it your express desire to 

be discharged from the service with a bad-conduct 

discharge? 

ACC: Yes, Your Honor. 

Third, the record then reflects the court-martial was recessed for 

approximately fourteen minutes. When the military judge called the court back to 

order, he reviewed Appellate Exhibit (App. Ex.) V with appellant. This appellate 

exhibit is a memorandum with a subject line entitled “Sentencing Argument for 

Punitive Discharge” and is dated 5 April 2011, the date of appellant’s second courtmartial. The military judge, on the record, then established: appellant personally 

signed App. Ex. V; appellant reviewed App. Ex. V with CPT TS; appellant reviewed 

paragraph 9 of App. Ex. V wherein appellant affirmatively declared that he 

consented to “my defense counsel stating in argument that I desire to be discharged 

with a bad-conduct discharge if it will preclude an extended period of confinement”; 

and appellant affirmatively stated he wanted CPT TS “to argue for a punitive 

discharge in lieu of lengthy confinement.”3

 Therefore, in reviewing the record of 

trial, it is clear appellant desired to seek a bad-conduct discharge in an effort to 

avoid confinement, and he was thoroughly aware of the consequences of such a 

request. 

 Lastly, in addition to what transpired at the guilty plea and during the 

presentencing proceedings, the appellate filings reveal appellant previously 

submitted a request to be administratively separated in lieu of court-martial. 

Following his first court-martial, appellant submitted a voluntary request for 

discharge. In this request, one that appellant personally signed, appellant 

acknowledged: 

I understand that if my request for discharge is accepted, I 

may be discharged under conditions other than 

Honorable. I request a General Discharge. I have been 

advised and understand the possible effects of an Under 

Other Than Honorable Discharge . . . and that as a result 

of the issuance of such a discharge, I will be deprived of 

many or all Army benefits, that I may be ineligible for 

                                                           

3

 Appellant’s admissions and assertions during the presentencing phase are of the 

same nature that our superior court, under the fifth Ginn principle, has held may be 

examined in a guilty plea inquiry to discount appellant’s assertions on appeal. See 

Ginn, 47 M.J. at 248 (when an allegation of ineffective representation contradicts 

admissions made by appellant during a guilty plea inquiry, we may decide the issue 

on the basis of the appellate file, including admissions by the appellant during the 

guilty plea and his expression of satisfaction with counsel). 
FOXX—ARMY 20110272 

7 

many or all benefits administered by the Veterans 

Administration, and that I may be deprived of my rights 

and benefits as a veteran under Federal and State law . . . . 

I further understand that there is neither automatic 

upgrading nor review by any Government agency of a less 

than honorable discharge and that I must apply to the 

Army Discharge Review Board or the Army Board of 

Correction of Military Records if I wish review of my 

discharge. I realize that the act of consideration by either 

board does not imply that my discharge will be upgraded. 

(Gov. App. Ex. 1, Encl. 1). 

 On 8 March 2011, appellant submitted an additional memorandum in support 

of his request for administrative discharge, wherein he requested the convening 

authority discharge him in lieu of his second court-martial. In his personal 

memorandum, appellant requested the pending charge of bigamy be dismissed in 

exchange for his discharge. In general, appellant agreed to accept the first courtmartial conviction, along with the adjudged four months of confinement, and 

administrative discharge from the service, in exchange for not facing a second courtmartial on the bigamy charge. In this memorandum appellant tellingly stated: 

5. Approving this discharge it [sic] will save the Army 

the time and resources necessary to try the case. 

Approving this request will also terminate my opportunity 

to reach 20 years of service and retire, causing me to lose 

tens of thousands of dollars in benefits. 

(Gov. App. Ex. 1, Encl. 1). 

Therefore, before appellant’s second court-martial even began, appellant 

exhibited a belief that his Army career was irreversibly damaged and demonstrated a 

clear desire to be separated from the service. While the request for an 

administrative discharge in lieu of court-martial does not definitively disprove 

appellant’s allegations, it does indicate a willingness to barter his military 

retirement to avoid confinement. Accordingly, appellant’s request to be 

administratively discharged prior to his second court-martial belies his subsequent 

allegation that CPT TS was the driving force behind the request for a punitive 

discharge. 

 In assessing the record of trial and the appellate filings, apart from the 

conflicting affidavits, it is clear appellant desired to request a bad-conduct discharge 

in an effort to avoid confinement and he was satisfied with his counsel’s advice on 

the matter. Thus, 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 
FOXX—ARMY 20110272 

8 

whole ‘compellingly demonstrate’ the improbability of those facts, [and this] court 

may discount those factual assertions and decide the legal issue” without a post-trial 

evidentiary hearing. Id. at 248; see also United States v. Fagan, 59 M.J. 238, 247 

(C.A.A.F. 2004). Specifically, appellant has ultimately failed to show “that 

counsel’s performance was deficient, and that this deficiency resulted in prejudice” 

because the record clearly demonstrates appellant was advised of the ramifications 

of a bad-conduct discharge and the decision to request such a discharge was his 

alone. Strickland, 466 U.S. at 687. 

We now turn our attention to appellant’s allegation that CPT TS was 

ineffective because he failed to conduct a proper investigation and present vital 

evidence to the military judge. As alleged by appellant, this investigation would 

have consisted of interviewing two witnesses for sentencing purposes and the vital 

evidence would have been the testimony of these two witnesses. Appellant, in his 

post-trial affidavit, asserts he “spoke with [CPT TS] on numerous occasions about 

calling two witnesses on my behalf - [Lieutenant Colonel (LTC) PG] and [Master 

Sergeant (MSG) SH].” Appellant further states he “never agreed with not calling 

any live witnesses on my behalf.” In response, Captain TS, in his post-trial 

affidavit, asserts that he made a tactical decision not to call any witnesses on 

appellant’s behalf and, instead, focused on appellant’s relationship with his spouse 

during presentencing. 

 As an initial matter, having reviewed the record and the affidavits, we 

conclude, consistent with the principles announced in Ginn, that we can resolve 

appellant’s claim without directing a post-trial evidentiary hearing on this specific 

issue. The central point of contention by appellant is that he provided the names of 

prospective witnesses to his counsel, and yet CPT TS did not present them. These 

facts are conceded by CPT TS. Pursuant to CPT TS’s affidavit, prior to appellant’s 

first court-martial, appellant provided CPT TS with a list of potential sentencing

witnesses. Captain TS and his co-counsel contacted and interviewed these witnesses 

(“more than six”), to include the same LTC PG and MSG SH. However, CPT TS 

goes on to explain that he made a tactical decision not to call the witnesses on 

appellant’s behalf at appellant’s first court-martial, and this is not refuted by 

appellant. 

 In explaining his decision, CPT TS states, except for MSG SH, none of these 

witnesses had favorable testimony to offer on appellant’s behalf. Captain TS further 

states, in his affidavit, that “[a] consistent theme among them was that [appellant’s] 

duty performance was average or substandard and that [appellant] had accountability 

issues (e.g., frequent absences during duty hours without explanation or unverified 

excuses).” Appellant has offered nothing to contradict CPT TS’s representations 

concerning LTC PG, specifically, that LTC PG was interviewed to possibly testify 

on sentencing at appellant’s first court-martial and that LTC PG was not called as a 

witness in either of appellant’s courts-martial because he did not have favorable 

testimony to offer. Regarding LTC PG, appellant merely states that if CPT TS had 
FOXX—ARMY 20110272 

9 

informed appellant that LTC PG was “unwilling to testify,” that appellant would 

have “supplemented my witness list with other supervisors with whom I have worked 

during my sixteen years of Army service.” Thus, appellant has failed to meet his 

burden to show CPT TS was deficient by not calling LTC PG as a witness. 

Strickland, 446 U.S. at 687. 

 We next address whether CPT TS was ineffective in not properly investigating 

the testimony MSG SH had to offer or in not calling MSG SH to testify on 

sentencing at appellant’s second court-martial. 

 First, appellant, CPT TS, and MSG SH, per their affidavits, agree CPT TS did 

interview MSG SH prior to appellant’s first court-martial. In his affidavit, MSG SH 

states he was contacted by CPT TS and interviewed as a potential witness regarding 

appellant’s first court-martial. Master Sergeant SH characterizes the conversation as 

lasting “four minute[s]” and that “for some reason . . . the conversation did not lead 

to me being called as a witness even though I was willing to testify on [appellant’s] 

behalf.” Master Sergeant SH further states that, even with knowledge of appellant’s 

two convictions, he would have testified on appellant’s behalf at both trials. The 

remainder of MSG SH’s affidavit describes appellant as “an outstanding NCO” and 

provides some specific examples of areas in which he believed appellant performed 

well. Pursuant to his affidavit, CPT TS acknowledges, without going into detail, 

MSG SH “did have positive things to say about” appellant. Therefore, in regards to 

whether CPT TS was ineffective in not properly investigating whether MSG SH 

possessed favorable testimony, we, again, find appellant has failed to meet his 

burden to show that counsel’s performance was deficient. Strickland, 446 U.S. at 

687. 

The final prong left to analyze is, therefore, whether CPT TS was ineffective 

by not calling MSG SH to testify at appellant’s second trial during sentencing. “In 

weighing such matters, we must give deference to counsel’s tactical judgment and 

not substitute our view with the benefit of hindsight.” United States v. Stephenson, 

33 M.J. 79, 82 (C.M.A. 1991) (quoting Strickland, 466 U.S. at 689). Moreover, 

“heavy deference is given to trial defense counsel’s judgments, and this Court 

presumes counsel’s conduct falls within the wide range of reasonable professional 

assistance.” United States v. Morgan, 37 M.J. 407, 409 (C.M.A. 1993) (citing 

Strickland, 466 U.S. at 689). “[S]trategic choices made after thorough investigation 

of law and facts relevant to plausible options are virtually unchallengeable.” 

Strickland, 466 U.S. at 690. 

As contained in his affidavit, CPT TS made the tactical decision not to call 

MSG SH at the court-martial so as to keep the focus on appellant’s troubled 

relationship with his first wife and minimize the focus on appellant’s credibility. 

Given appellant’s previous court-martial for the unauthorized wear of badges and 

tabs, combined with appellant’s second court-martial for bigamy, any good-character 

or good-soldier witness called on appellant’s behalf would have been susceptible to 
FOXX—ARMY 20110272 

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cross-examination focusing on appellant’s lack of integrity, regardless of the 

positive information they had to offer. It is clear CPT TS engaged in such an 

analysis regardless of appellant’s input, and his decision reflects a tactically sound 

analysis. See United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009) (failure to 

call a witness that could both hurt and help appellant’s case is a reasonable tactical 

decision which does not amount to ineffective assistance of counsel). 

Finally, in his post-trial affidavit, appellant acknowledges CPT TS informed 

him of the interview with MSG SH and the likelihood that MSG SH would not be 

called as a witness at trial. When appellant asked why, CPT TS told him MSG SH 

would not be needed. In addition, appellant has failed to acknowledge MSG SH’s 

absence as a sentencing witness at his first court-martial. This decision not to call 

MSG SH as a witness at appellant’s first court-martial not only supports CPT TS’s 

explanation for not calling MSG SH at the second court-martial but also contradicts 

appellant’s assertion that he did not agree “with not calling any witnesses” at his 

second court-martial. Specifically, to the extent CPT TS employed this same 

approach at both courts-martial, appellant offers no explanation for why this trial 

strategy caught him unaware. As to this portion of appellant’s assignment of error, 

in applying the first part of the Strickland test, appellant has failed to demonstrate 

his counsel’s performance was deficient. Strickland, 446 U.S. at 687. 

However, assuming arguendo CPT TS provided deficient performance in 

failing to call MSG SH as a witness, appellant must then establish such a deficiency 

resulted in prejudice. Id. at 687. To establish prejudice, appellant must demonstrate 

“a reasonable probability that, but for counsel's [deficient performance] the result of 

the proceeding would have been different.” Id. at 694. “A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” Id. Assuming 

MSG SH testified consistent with his post-trial affidavit, his testimony would have 

been limited to good-soldier evidence and easily rebutted by appellant’s two 

convictions. Furthermore, appellant received only two months confinement despite 

facing a maximum of twelve months. Finally, as already captured in this opinion, 

appellant requested a punitive discharge during sentencing. Against this backdrop, 

we find MSG SH’s testimony would have had no impact on appellant’s sentence and 

therefore appellant has failed to establish prejudice in this case. See Id. at 687. 

Post-trial Ineffective Assistance of Counsel Allegation 

 In his second assignment of error, appellant alleges he was denied post-trial 

effective assistance of counsel when his trial defense counsel failed to include two 

letters in the post-trial matters submitted to the CA pursuant to Rules for CourtsMartial [hereinafter R.C.M.] 1105 and 1106. In support of this allegation, appellant 

offers only his post-trial affidavit. In his affidavit, appellant states CPT TS failed to 

submit two letters appellant had given to CPT TS to include in his post-trial 

clemency matters. One of these letters was purportedly authored by Ms. WO, the 

woman appellant married while still married to Ms. WF. It is difficult to imagine 
FOXX—ARMY 20110272 

11 

how a letter from Ms. WO, given appellant’s bigamy conviction, could have aided 

appellant’s request for clemency, and appellant adds to the mystery by neither 

providing a copy of this letter nor describing the contents of this letter in his 

affidavit. Appellant merely avers that CPT TS “received [the letter] through email.” 

 Appellant further states he wanted a letter he personally wrote included in his 

clemency request. Again, appellant fails to provide a copy of the letter to this court, 

and he does not describe the contents of the letter in his affidavit. Appellant merely 

alleges he “emailed [this] letter to [CPT TS]” and “I cannot access the email account 

at this time to retrieve our correspondence.” Appellant further states CPT TS 

“edited the letter and sent it back to me” and “assured me that both letters would be 

submitted to the [CA].” Finally, appellant alleges CPT TS merely submitted a “short 

memorandum” authored by CPT TS and that appellant “never saw this memorandum 

prior to submission nor did I approve of its submission without my letters being 

attached.” 

 Once again, because appellant and counsel have filed post-trial affidavits, that 

to some extent conflict, pursuant to Ginn, we analyze whether a post-trial 

evidentiary hearing is required. We conclude it is not. 

 Based on the second and fourth Ginn principles, we reject appellant’s 

allegation that CPT TS was ineffective because he failed to submit a letter from Ms. 

WO, the very woman appellant married while still married to Ms. WF. We will 

discuss the applicability of the fourth Ginn principle below, but in regards to the 

second Ginn principle, based on appellant’s failure to provide information 

concerning the content of Ms. WO’s letter or how this letter would have possibly 

persuaded the CA to grant appellant clemency, we find this allegation “consists . . . 

of merely speculative or conclusory observations” and reject it on that basis. Ginn, 

47 M.J. at 248. 

 Additionally, applying the fourth Ginn principle and assuming appellant’s 

affidavit is factually adequate, “the appellate filings and the record as a whole 

‘compellingly demonstrate’ the improbability” he submitted these letters to CPT TS, 

and we are able to “discount those factual assertions and decide the legal issue” 

without a post-trial evidentiary hearing. Ginn, at 47 M.J. at 248. The government 

moved to attach to the record Government Appellate Exhibit (Gov. App. Ex.) 1, 

which included emails between appellant and CPT TS. This motion was granted 

without objection. These emails paint a fairly compelling picture of a defense 

counsel repeatedly trying to communicate and coordinate with his client. (Gov. 

App. Ex. 1, Encls. 2-6). Appellant offered nothing in response to CPT TS’s 

appellate filings and merely alleges CPT TS was ineffective by not submitting the 

two letters to the CA. Moreover, appellant has neither provided copies of the letters 

to this court and nor described the alleged content of the letters in his affidavit. See 

United States v. Clemente, 51 M.J. 547, 551 (Army Ct. Crim. App. 1999) (an 
FOXX—ARMY 20110272 

12 

appellant has the responsibility to bring to an appellate court's attention facts rather 

than mere speculation and relief cannot be granted, under Strickland, based on mere 

speculation). 

 In his affidavit, CPT TS denies appellant provided him any letters to be 

submitted to the CA with his post-trial matters. The record, with its appellate 

filings, now documents CPT TS’s engagement with appellant regarding the 

submission of appellant’s post-trial matters. In Enclosure 6, an email dated 14 

September 2011 and addressed to appellant, CPT TS stated that a draft memorandum 

about which he had spoken “on the phone” with appellant was attached for 

appellant’s review. This memorandum, except for appellant’s endorsement and the 

date, mirrors the memorandum CPT TS ultimately submitted on appellant’s behalf. 

In the email, CPT TS further advised appellant they had about three weeks to submit 

clemency matters. 

 

 In Enclosure 5, an email dated 28 September 2011 and addressed to appellant, 

CPT TS notified appellant that clemency matters were due on 7 October 2011 and he 

requested to discuss clemency matters with appellant. 

 In Enclosure 4, an email dated 6 October 2011 and also addressed to 

appellant, CPT TS notified appellant that: clemency matters were due the next day; 

CPT TS would submit the memorandum he had previously sent appellant; CPT TS 

had not received any documents from appellant; and that if there was anything 

appellant wanted to submit, he needed to provide it to CPT TS as soon as possible. 

 In Enclosure 3, an email dated 7 October 2011 and addressed to appellant, 

CPT TS notified appellant he was submitting the attached memorandum as 

appellant’s clemency request later that day and appellant should let him know if he 

wanted to make any changes or if appellant wanted to submit any other documents. 

The memorandum attached to the email is a copy of the one CPT TS submitted on 

appellant’s behalf in regards to clemency. 

 

 Enclosure 2 contains three emails. The first email is the same email found at 

Enclosure 3. The second email is dated 7 October 2011 and sent by appellant to 

CPT TS in response to CPT TS’s 7 October 2011 email. The email reads: 

Sir, I apologize for the lateness [sic]. I just got home last 

evening after a back procedure. I will look at it now. 

(Matter a fact [sic], deriving [sic] from my ongoing back 

issues from the Military operational exercise of which 

cause [sic] my back injury due to a military parachuting 

injury.) Would this be a positive point to make [?] 

Especially [sic] I have been on meds (mood altering and 

pain killing narcutics [sic] since 2003). 
FOXX—ARMY 20110272 

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 The third email is dated 8 October 2011 and is sent by CPT TS in response to 

appellant’s email. In this email, CPT TS stated the clemency matters had already 

been submitted, but if appellant wanted “to submit a personal letter or anything else 

for the CG [commanding general] to consider” he should send them to CPT TS and 

he would do his best to add those matters to the clemency request. Captain TS 

further informed appellant that it would be at least a week before the CA took action 

in his case. The CA took action on appellant’s case on 14 October 2011. 

In addition, pursuant to the written post-trial and appellate rights guidance 

provided to appellant (App. Ex. III) and the oral guidance provided to appellant by 

the military judge at trial, appellant was clearly on notice of his responsibility to 

stay in touch with CPT TS concerning the submission of clemency matters. Further, 

in acknowledging his responsibility to stay in contact with CPT TS, appellant 

authorized CPT TS, both on the record and in writing, to submit matters on 

appellant’s behalf as CPT TS deemed appropriate. Therefore, appellant is limited to 

alleging the submission by CPT TS was deficient. 

 Finally, we note that although appellate defense counsel requested additional 

time to file a brief in reply to appellee’s brief, a request that this court granted, 

appellate defense counsel, to date, has not offered anything in response to the 

government’s brief, CPT TS’s affidavit, or the appellate documents and emails. See 

Clemente, 51 M.J. at 552 (appellant failed in his burden to affirmatively prove 

deficient performance where he failed to advise the court of “what favorable 

evidence he was deprived” of giving to the convening authority). 

 In sum, while appellant’s affidavit raises facts involving ineffective assistance 

of counsel during the post-trial stage of his court-martial, the record as a whole and 

the appellate filings “compellingly demonstrate” the improbability of those facts. 

Ginn, 47 M.J. at 248. Thus, under Strickland, this court discounts appellant’s 

factual assertions. Appellant has failed to demonstrate that counsel’s performance 

was deficient during the post-trial portion of his court-martial. See Strickland, 466 

M.J. at 687; Ginn, 47 M.J. at 248. 

CONCLUSION 

On consideration of the entire record, the submissions of the parties, and 

those matters personally raised by appellant pursuant to Grostefon, 12 M.J. at 431, 

we hold the findings of guilty and the sentence as approved by the convening 

authority correct in law and fact. 

Accordingly, the findings of guilty and the sentence are AFFIRMED. 
FOXX—ARMY 20110272 

14 

Judge GALLAGHER and Judge HAIGHT concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR.                          

Clerk of Court

FOR THE COURT: