UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201600297

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UNITED STATES OF AMERICA

Appellee

v.

AMBER N. ATKINS

Hull Maintenance Technician Second Class (E-5), U.S. Navy

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary 

Military Judge: Captain Charles N. Purnell, JAGC, USN.

Convening Authority: Commanding Officer, Naval Medical Center, 

Portsmouth, VA.

Staff Judge Advocate’s Recommendation: Lieutenant Regina A. 

Davis-Niles, JAGC, USN.

For Appellant: Lieutenant Colonel Richard A. Viczorek, USMCR. 

For Appellee: Major Cory A. Carver, USMC; Lieutenant Megan P. 

Marinos, JAGC, USN.

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Decided 28 March 2017

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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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RUGH, Judge:

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

consistent with her pleas, of conspiracy to commit larceny, wrongful use of 

controlled substances, and larceny—violations of Articles 81, 112a, and 121, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 912a, and 921

(2012). The military judge sentenced the appellant to eight months’ 
United States v. Atkins, No. 201600297

2

confinement, reduction to pay grade E-3, and a bad-conduct discharge. The 

convening authority (CA) approved the sentence as adjudged, suspending all 

confinement in excess of 6 months for a period of confinement served plus 24 

months pursuant to a pretrial agreement.

The appellant now raises two assignments of error (AOE): (1) that the 

court-martial order misstates several of the pleas, findings and specifications; 

and (2) that the order also mistakenly purports to execute the appellant’s 

punitive discharge. The government concedes both errors. We agree and 

order corrective action in our decretal paragraph. Otherwise, finding no error 

materially prejudicial to the appellant’s substantial rights, we affirm the 

findings and sentence. Arts. 59(a) and 66(c), UCMJ. 

I. BACKGROUND

From November 2015 to January 2016, the appellant regularly used 

heroin, cocaine, codeine, amphetamines, methamphetamines, and morphine. 

At the same time, in support of her various addictions, the appellant 

conspired with a civilian to trick several other junior Sailors into giving her 

cash in exchange for worthless checks. Additionally, she shoplifted nearly 

$800.00 in goods from the Navy Exchange.

II. DISCUSSION

A. Errors in the court-martial order

On 22 August 2016, the CA, Commanding Officer, Naval Medical Center 

Portsmouth, Virginia, approved and ordered executed the appellant’s 

sentence and promulgated the results via Special Court-Martial Order (CMO) 

No. 1-16. As identified by the appellant and conceded by the government, the 

CMO contains numerous errors in the specifications, the pleas, and the 

findings. Although such persistent inattention to detail is disconcerting, the 

appellant does not assert, and we do not find, any prejudice resulting from 

these errors. Nevertheless, the appellant is entitled to have the CMO 

accurately reflect the results of the proceedings. United States v. Crumpley, 

49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order corrective action 

in our decretal paragraph.

Additionally, the CMO provides that “the sentence is approved and will be 

executed.”1 Under Article 71(c)(1), UCMJ, a punitive discharge cannot be 

ordered executed until there is a final judgment as to the legality of the 

proceedings after the completion of direct appellate review. As a result, to the 

extent that the CMO purported to execute the bad-conduct discharge, it was 

 

1 CMO No. 1-16 at 5.
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a legal nullity. United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009). With that 

noted, no further action is required under these circumstances. Id.; United 

States v. Furkin, No. 201400005, 2014 CCA LEXIS 804, *2 (N-M. Ct. Crim. 

App. 28 Oct. 2014) (per curiam).

B. Post-trial ineffective assistance of counsel

Although not raised by the parties, we note that the trial defense 

counsel’s request for clemency on behalf of the appellant provided:

[Art. 60, UCMJ, and RULES FOR COURTS-MARTIAL 1101(a), 

1105, and 1106, MANUAL FOR COURTS-MARTIAL (2012 ed.)] give 

you the power, as convening authority, to modify both the 

findings and the sentence of the court-martial, as long as they 

are not increased. As [Art. 60, UCMJ] states, this is “a matter 

of command prerogative in the sole discretion of the convening 

authority.”2

Relying on this authority, the trial defense counsel requested that the CA 

disapprove the appellant’s bad-conduct discharge as his only act in clemency.3

The staff judge advocate’s (SJA) addendum to her previous recommendation 

did not comment on this misstatement of the law or on the requested relief.

Under changes to Article 60, UCMJ, effective now for over two-and-a-half 

years, a CA may not “disapprove, commute, or suspend in whole or in part an 

adjudged sentence of . . . dismissal, dishonorable discharge, or bad conduct 

discharge” unless certain exceptions exist.4 As a result of these changes, the 

CA was prohibited from granting trial defense counsel’s sole, requested relief.

United States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 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 

 

2 Trial Defense Counsel Clemency Request dtd 15 Jul 2016 at ¶ 2. The request 

was received by the CA’s staff judge advocate on 15 August 2016.

3 While the appellant’s counsel submitted the request four days late, it was still 

provided to the CA for his review prior to acting.

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

127 Stat. 672, 956-57 (2013). None of the exceptional circumstances are present in 

this case. 
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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) (quoting 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).

In evaluating post-trial ineffective assistance of counsel for prejudice, 

courts must give the 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)).

Even considering the strong presumption of competence, the trial defense 

counsel’s request in this case was so plainly flawed as to be deficient. 

Regardless, 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 her trial defense counsel’s clemency submission 

contrasted with her wishes.5 Likewise, there has been no description of 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). Nevertheless, we 

encourage all counsel and SJA to re-familiarize themselves with the current 

state of Article 60, UCMJ.

III. CONCLUSION

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

supplemental CMO shall correctly reflect that:

In the sole specification of Charge II, the appellant pleaded guilty by 

exceptions and substitutions and was found guilty by the military judge, with 

an additional exception and substitution, the specification thus reading:

In that Hull Maintenance Technician Second Class Amber N. 

Atkins, U.S. Navy, Naval Medical Center Portsmouth, on 

active duty, did, at or near Norfolk, Virginia, about November 

and December 2015, conspire with Ms. Julie Hall to commit 

 

5 See 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 were insufficient to show prejudice).
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offenses under the Uniform Code of Military Justice, to wit: 

larceny of money of a value of over $500.00, the property of 

various other persons, and in order to effect the object of the 

conspiracy, the said Hull Maintenance Technician Second 

Class Amber N. Atkins, U.S. Navy, and Ms. Julie Hall did 

knowingly ask at least one person to cash a valueless check.

In Specifications 2, 3 and 4 under Charge IV, the military judge excepted 

the word, “Portsmouth” substituting therefore the word, “Norfolk,” and found 

the appellant guilty of the specifications as excepted and substituted.

In Specification 5 under Charge IV, the specification should read, in part: 

“steal cash of a value of about $500.00, the property of . . .”

In the sole specification under Charge VI, the specification should read, in 

part: “on or about 26 May 2015, with intent to deceive and for the payment of 

a past due obligation, wrongfully and unlawfully make and utter to Aviation 

Machinist’s Mate Second Class [CB], U.S. Navy, a certain check upon the 

Navy Federal Credit Union in words and figures as follows, to wit...”

Senior Judge CAMPBELL and Judge HUTCHISON concur.

For the Court

R.H. TROIDL

Clerk of Court