UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Private First Class DAMARCUS D. MCGINTY

United States Army, Appellant

ARMY 20110627

Headquarters, 2nd Infantry Division

T. Mark Kulish and Patrick Parrish, Military Judges

Colonel Jeffery D. Pederson, Staff Judge Advocate (pretrial)

Lieutenant Colonel Paula I. Schasberger, Staff Judge Advocate (post-trial)

For Appellant: Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Daniel D. Mauer, JA 

(on brief).

30 July 2013

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HAIGHT, Judge:

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

pursuant to his pleas, of one specification of violating a lawful general order, three 

specifications of failing to obey a lawful order, and three specifications of 

committing indecent conduct, in violation of Articles 92 and 920, Uniform Code of 

Military Justice, 10 U.S.C. §§ 892, 920 (2006) [hereinafter UCMJ]. The convening 

authority approved the adjudged sentence of a bad-conduct discharge, confinement 

for thirty months, and reduction to the grade of E-1. 

Appellate counsel assigned three errors to this court and appellant personally 

raised matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 

The first error raised by appellate counsel merits discussion but no relief. The 

additional assignments of error and those matters raised by appellant pursuant to 

Grostefon are without merit. 
MCGINTY—ARMY 20110627

2

BACKGROUND

In an assignment of error to this court, appellant alleges he received 

ineffective assistance of counsel in the post-trial phase of his court-martial. 

Specifically, appellant asserts that his trial defense counsel failed to adequately 

advise him of his post-trial rights and failed to submit certain letters on appellant’s 

behalf to the convening authority. Appellant alleges he obtained a letter of support 

from a family friend, Mr. SF, and prepared his own letter for presentation to the 

convening authority. According to appellant, he mailed these documents to his 

defense counsel in early November 2011 for inclusion in his request for clemency to 

the convening authority. In his affidavit to this court, appellant maintains:

Prior to my court-martial, I was briefly advised of 

my post-trial and appellate rights by my defense counsel

Captain (CPT) [CD]. That was the only discussion we had 

concerning post-trial matters. I have spoken with CPT 

[CD] only one time since I arrived at Fort Lewis. That 

conversation occurred in late October or early November

2011, via telephone.

During that conversation CPT [CD] did not discuss 

my R.C.M. 1105/1106 matters. Captain [CD] never 

requested that I send him a letter or any other matters. 

The only time that CPT [CD] spoke to me about clemency 

was when he briefly discussed my post-trial rights the day 

before my court-martial. 

The post-trial advice that CPT [CD] provided to me 

on the eve of trial was brief and I understood very little of 

it at the time. After I arrived at Fort Lewis, I began to 

understand the R.C.M. 1105/1106 clemency process better. 

I learned from a counselor here at the facility that I could 

submit letters and petition the convening authority for 

clemency. I was advised that I should [submit] clemency 

matters to my defense counsel.

After learning of my right to request clemency, I 

contacted family and friends and I requested letters of 

support. In October 2011, I received a letter from a 

family friend, Mr. [SF] of Dallas, Texas. I also wrote a 

letter on my behalf. In early November 2011, I mailed 

Mr. [SF’s] letter and my letter to CPT [CD] in Korea . . . . 

I intended for these letters to be submitted as part of my 

R.C.M. 1105/1106 matters. To my knowledge, they were 
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not submitted to the convening authority. In fact, no 

letters of support were submitted on my behalf along with 

CPT [CD’s] clemency request. 

Appellant also included a second affidavit wherein he explained t he content of 

his personal handwritten letter intended for the convening authority. Appellant 

avers the letter contained information such as: he played college football; he 

regularly sent money to his young daughter; he was remorseful for his crimes; and 

his sentence was overly severe compared to his co-accused. Finally, appellant 

informed the convening authority of his aspirations for the future and the negative 

impact of a punitive discharge. Appellant did not include a copy of the letter from 

Mr. SF nor did he provide an explanation or summary of the content of that letter.

LAW AND DISCUSSION

The Sixth Amendment guarantees an accused the right to effective assistance 

of counsel. United States v. Gooch, 69 M.J. 353, 361 (C.A.A.F. 2011) (citing United 

States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001)). In the military, this guarantee 

extends to assistance with the post-trial phase of a court-martial. United States v. 

Lee, 52 M.J. 51, 52 (C.A.A.F. 1999). We review de novo claims that an appellant 

did not receive the effective assistance of counsel. United States v. Mazza, 67 M.J. 

470, 475 (C.A.A.F. 2009). 

“In assessing the effectiveness of counsel we apply the standard set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin with the presumption 

of competence announced in United States v. Cronic, 466 U.S. 648, 658 (1984).” 

Gooch, 69 M.J. at 361. To overcome the presumption of competence, the Strickland

standard requires an appellant to demonstrate “both (1) that his counsel’s 

performance was deficient, and (2) that this deficiency resulted in prejudice.” United 

States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at 

687). 

This Court applies a three-part test to determine whether the presumption of 

competence has been overcome:

1. Are the allegations true, and, if so, is there any reasonable 

explanation for counsel’s actions?

2. If the allegations are true, did counsel’s performance fall 

measurably below expected standards?

3. Is there a reasonable probability that, absent the errors, there 

would have been a different outcome?
MCGINTY—ARMY 20110627

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United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991). In the context of a post-trial 

claim for ineffectiveness, our superior court has modified the third step, requiring 

only that there be some colorable showing of possible prejudice. Lee, 52 M.J. at 53 

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

When assessing Strickland's first prong, courts “must indulge a strong 

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

professional assistance.” Strickland, 466 U.S. at 689. When challenging the

performance of trial defense counsel, the appellant “bears the burden of establishing 

the truth of the factual allegations that would provide the basis for findin g deficient 

performance.” United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (citation 

omitted). 

When there is a factual dispute, we determine whether further fact-finding is 

required under United States v. Ginn, 47 M.J. 236 (C.A.A.F.1997). If, however, the 

facts set forth in the affidavit do not set forth specific facts but consist of 

speculative or conclusory observations, the claim may be rejected on that basis. 

Ginn, 47 M.J. at 248. Further, if the facts alleged by the defense would not result in 

relief under the high standard set by Strickland, we may address the claim without 

the necessity of resolving the factual dispute. Ginn, 47 M.J. at 248.

First, regarding the letter from Mr. SF, we find that we need not return this 

case for further fact-finding under Ginn because appellant’s affidavits do not set 

forth specific facts, “but consist[] of speculative or conclusory observations.” Id. 

Thus, we are able to decide the legal issue without further proceedings. Id. While 

appellant avers he obtained and mailed a letter from Mr. SF for inclusion in his 

clemency submission, appellant fails to produce a copy of this letter and fails to 

summarize or describe the content of the letter. Thus, appellant’s claim that failure 

to include Mr. SF’s letter rendered counsel’s submission deficient is speculative at 

best, and we can discount such an assertion.

Second, regarding appellant’s claim that he was not adequately advised by 

counsel, we find the appellate filings and the record as a whole “compellingly 

demonstrate the improbability of those facts,” and we may discount those factual 

assertions and decide the legal issue. Id. Appellant maintains that until a very late 

stage he was unaware of his ability to submit clemency matters to the convening 

authority. However, this statement is directly contradicted by the record. Appellant 

signed a post-trial rights advisement form wherein he acknowledged:

Under Rules For Court-Martial 1105 and 1106, I have the 

right to submit matters to the convening authority that I 

wish him to consider in deciding what action to take in my 

case. Those matters include, but are not limited to, a 
MCGINTY—ARMY 20110627

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personal statement, personal letters and documents, letters 

and documents from any other person . . . . 

Appellant then initialed the portion of the form indicating he understood his posttrial and appellate rights. Therefore, the record directly refutes appellant’s claim he 

was unaware of his ability to submit clemency matters. 

Third, we find, even if any and all factual disputes were resolved in 

appellant’s favor, he failed to establish his counsel’s performance fell measurably 

below the expected professional standards and his claims would not result in relief. 

See Green, 68 M.J. at 361 (holding an accused must prove his counsel’s performance 

was deficient in order to overcome the presumption of competence). See also Polk, 

32 M.J. at 153 (holding a court must assess whether appellant’s performance fell 

below objectively reasonable standards). Here, appellant signed and initialed the 

post-trial and appellate rights form before his court-martial. On the form, appellant 

specifically provided:

If I have matters that I wish the convening authority 

to consider, or matters in response to the staff judge 

advocate’s recommendation, such matters must be 

submitted within 10 days after I receive a copy of the 

record of trial or the recommendation of the staff judge 

advocate, whichever occurs later . . . .

Upon my request, the convening authority may 

extend this period for good cause, for not more than 20 

days. 

Appellant’s trial ended on 22 July 2011 and the post-trial recommendation 

was completed on 20 September 2011. Appellant received a copy of the record of 

trial and post-trial recommendation on 3 October 2011. Having been served on 3 

October 2011, the deadline for appellant’s submission would have been 13 October 

2011 (or 2 November 2011 if extended for the maximum allowable period). Based 

on the post-trial and appellate rights form, it is clear appellant was aware of his

deadline for the submission of his clemency matters. However, he failed to meet it. 

Neither the record nor the appellate filings indicate appellant informed his trial 

defense counsel that he was about to or did mail matters for submission but that 

these letters would arrive past the deadline. Under these circumstances, we cannot 

say appellant’s defense counsel acted unreasonably in timely submitting matters to 

the convening authority. This is especially true where action was not taken until 17 

November 2011 and there is no indication contained in the record that the letters had 

arrived in Korea even at that later date. 
MCGINTY—ARMY 20110627

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Finally, we find even if counsel’s performance were deficient, appellant has 

failed to establish that the deficiency resulted in prejudice. See Strickland, 466 U.S. 

at 687. Although appellant’s letter would have provided one additional piece of 

information–that appellant played college football and an injury caused him to leave 

school–the remainder of the information was included within the record of trial or

within appellant’s trial defense counsel’s clemency request. This includes

appellant’s personal background; his apology to all involved and acknowledgment of 

guilt; his financial responsibility for his daughter; and appellant’s argument that his 

sentence was overly severe. Thus, because the essence of the information was 

ultimately presented to the convening authority, we are confident appellant has 

failed to make a colorable showing of possible prejudic e.

CONCLUSION

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

those matters personally raised by appellant pursuant to Grostefon, we hold the 

findings of guilty and the sentence as approved by the convening authority are 

correct in law and fact. 

Accordingly, the findings of guilty and the sentence are AFFIRMED.

Senior Judge COOK and Judge CAMPANELLA concur.

FOR THE COURT:

ANTHONY O. POT

Chief Deputy Clerk 

ANTHONY O. POTTINGER

Chief Deputy Clerk of Court