UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

COOK, GALLAGHER, and HAIGHT 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 SYDNEY D. TAYLOR 

United States Army, Appellant 

ARMY 20110358 

Headquarters, 8th Army 

T. Mark Kulish, Military Judge 

Colonel Jeffrey C. McKitrick, Staff Judge Advocate 

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

Jamison, JA; Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Daniel H. Karna, 

JA (on brief). 

31 January 2013 

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SUMMARY DISPOSITION 

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Per Curiam: 

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

pursuant to his pleas, of conspiracy to commit larceny, conspiracy to obtain services 

under false pretenses, three specifications of larceny, and obtaining services under 

false pretenses, in violation of Articles 81, 121 and 134 of the Uniform Code of 

Military Justice, 10 U.S.C. §§ 881, 921, 934 (2006) [hereinafter UCMJ]. The 

convening authority approved the adjudged sentence to a bad-conduct discharge and 

confinement for five months. 

Upon application of the accused, Article 57b, UCMJ, enables a convening 

authority to defer both automatic and adjudged forfeitures until the date on which 

the convening authority approves the sentence under Article 60, UCMJ. 

Additionally, under Article 58b, UCMJ, if an accused has dependents, a convening 

authority ―may waive any or all of the [automatic] forfeitures of pay and 

allowances . . . for a period not to exceed six months, and such money ―shall be 

paid . . . to the dependents of the accused. See also R.C.M. 1101(d)(1). 
TAYLOR— ARMY 20110358 

2

In this case, appellant alleges that he was denied his Sixth Amendment right 

to effective assistance of counsel in the post-trial phase of his court-martial when his 

defense counsel failed to request deferment and/or waiver of automatic forfeitures in 

accordance with Articles 57b and 58b, UCMJ. In addition, appellant argues he did 

not receive the opportunity to fully present clemency matters because he was not 

adequately advised on the distinction between automatic and adjudged forfeitures. 

Had appellant been properly advised, he would have requested the convening 

authority defer and/or waive automatic forfeitures at action for the benefit of his 

dependents. This issue has added significance in appellant’s case because his 

pretrial agreement insulated appellant from adjudged, but not automatic, forfeitures. 

Such a provision reflects appellant’s desire to obtain monetary relief and the 

convening authority’s willingness to grant that relief. 

The government concedes that appellant indicated his desire to request 

deferment and/or waiver of automatic forfeitures on his post-trial and appellate 

rights form and that this desire did not change prior to action. As a result, the 

government concedes appellant did not receive the opportunity to submit his 

complete clemency matters to the convening authority. 

Without addressing appellant’s claim of ineffective assistance of counsel, we 

note our superior court has held an accused’s best chance for clemency rests with 

the convening authority. United States v. Wheelus, 49 M.J. 283, 287 (C.A.A.F. 

1998); United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994). If the 

convening authority “has not seen a convicted servicemember’s clemency 

submission, it is well established that he has not been afforded his best hope for 

sentence relief.” United States v. Spurlin, 33 M.J. 443, 445 (C.M.A. 1991). In 

addition, “the convening authority’s obligation to consider defense submissions is 

uniquely critical to an accused.” United States v. Hamilton, 47 M.J. 32, 35 

(C.A.A.F. 1997). In this case, appellant did not receive the opportunity to fully 

present matters and receive meaningful consideration of his clemency request 

because he was unable to request the convening authority defer and/or waive the 

automatic forfeitures in his case. See United States v. Fordyce, 69 M.J. 501, 504 

(Army Ct. Crim. App. 2010). On these facts, we decline to speculate what the 

convening authority would have done if presented with the clemency information 

appellant desired to submit. Accordingly, we will order a new recommendation and 

action to ensure appellant has a meaningful opportunity for clemency. 

Further, assuming without deciding that sentence disparity in closely related 

cases rises to the level of legal error, we note the SJA failed to address the issue in 

accordance with R.C.M. 1106(d)(4). “Failure by the [SJA] to respond to an 

allegation of legal error . . . requires remand to the [CA] for comment by the [SJA].” 

United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988). 
TAYLOR— ARMY 20110358 

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CONCLUSION 

The convening authority's initial action, dated 28 July 2011, is set aside. The 

record of trial is returned to The Judge Advocate General for a new Staff Judge 

Advocate’s Post-Trial Recommendation (SJAR) and new initial action by the same 

or a different convening authority in accordance with Article 60(c)-(e), UCMJ. 

Appellant should receive a newly appointed defense counsel to assist with the 

preparation of his clemency matters. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: