Petition for Writ of Certiorari — Dresen v. United States

97 935 DE - 4 1997

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

TECHNICAL SERGEANT DONALD J. DRESEN,

PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of C-~tiorari to the

United States Court of Appeals tur the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Margo Stone Newton

Captain, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

Douglas H. Kohrt

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

November 1997

7+ pp

QUESTION PRESENTED

Whether it was improper for the 8th Air Force Legal

Office, given their active involvement in attempting to

overturn the Court of Appeals for the Armed Forces’ Decision

ordering a new action, to have provided the legal advice to the

8th Air Force Commander, the convening authority, regarding

the disposition of petitioner’s case.

ili

TABLE OF CONTENTS

Page

GRRE WITTE) 6 coos co vce bdnnscaucneuue i

OIE SP RF RUPE IID oo og vos oc cv neu ntbe eens «. iV

I i a oy eC aga 1

sete cag ASS ARI ce Area embeee Suan ee 1

CONSTITUTIONAL PROVISION INVOLVED ......... 2

CemNnE DE OP SOUR oo es on a Che edenh.s 2

REASON FOR GRANTING THE WRIT ............... 6

RE coi eo a sas 14

APPENDIX A

(Opinion of the United States Court of Appeals

for the Armed Forces, dated 15 September 1997) .... 1a

APPENDIX B

(Opinion of the United States Air Force

Court of Criminal Appeals, dated 30 July 1996) .... 10a

APPENDIX C

(Opinion of the United States Court of Appeals

for the Armed Forces, dated 27 September 1995). .. 17a

APPENDIX D

(Opinion of the United States Air Force Court of

Criminal Appeals, dated 12 May 1995). .......... 19a

APPENDIX E

(Opinion of the United States Court of Military

Appeals, dated 22 September 1994) .............. 21a

APPENDIX F

(Opinion of the United States Air Force Court of

Military Review, dated 22 March PRIN cas Sess 33a

iV

TABLE OF AUTHORITIES

Page

Military Cases:

United States v. Brown, 17 M.J. 987

CPR BA os iio co ek ne KO a ee ake 8,9

United States v. Coulter, 3 USCMA 657, 14

Ce PE a Ne ies ea bse heen 75 2a

United States v. Dresen, —_M.J. — (No. 93-0949,

SORMEIIIINE EO A) ek eR eee eens eee 1,6

United States v. Dresen, ACM 29249 (AFCMR,

FUER Res RE ae a ee eee a 1,6

United States v. Dresen, 43 M.J. 372 (1995) ....... 1,4

United States v. Dresen, ACM 29249

(A.F.Ct.Crim.App., May 12, 1995) .............. i,3

United States v. Dresen, 40 M.J. 462

CL SOE oS vee rie eh ees ook ia scl x hha is

United States v. Dresen, 36 M.J. 1103

CAR RCE Thc i he bse is Rh eis base beewnne 1.3

United States v. Gordon, 1 USCMA 255, 2

Ce BE CA bois hs oss sek be beer Re ee f Os

United States v. Graham, 17 C.M.R. 889

CPAP CR asd ae SN DK heeds 4 ti aaa wa 8 9

United States v. Haimson, 5 USCMA 208, 17

CE RES hcg a vv eek k os ode ws ad Soe ea 7)

United States v. Holt, 38 M.J. 682

(A Bee Be ahs os Mie eri 60 5 9h see ee ll

United States v. Leal, 44 M.J. 235 (1996) ........ 8, 12

United States v. McCormick 34 M.J. 752

tye AS BO ea ren “Drege usar la ak rag rarncee eS Re:

United States v. Rice, 33 M.J. 451 (CMA 1991) ..... 1]

United States v. Waddell, ACM S29061

(A.F.Ct.Crim.App., February 13,1996) ........--. 1]

Manual for Courts-Martial, United States, 1984

(1998S ed.):

Rule for Courts-Martial (R.C.M.) 1106(b) ......... 1]

Federal Statutes:

LONGO BOG N ie. oi Gets 1

Re BI ee ea 1

iG Se i 8, 10, 13, 14

10 U.S.C. §§ 890, 891, and 912a

]

The petitioner, Technical Sergeant Donald J. Dresen,

respectfully prays that a writ of certiorari issue to review the

order and judgment of the United States Court of Appeals for

the Armed Forces entered in his case on September 15, 1997.

OPINIONS BELOW

Petitioner’s case had been heard numerous times below.

The most recent order and judgment of the United States Court

of Appeals for the Armed Forces, reported at United States v.

Dresen, — M.J. — (No. 93-0949, September 15, 1997), is

located at Appendix A. The latest opinion of the United States

Air Force Court of Criminal Appeals (No. ACM 29249, July

30, 1996) is unpublished and is located at Appendix B. The

Court of Appeals for the Armed Forces’ summary disposition

setting aside the Air Force Court of Criminal Appeals’

decision, reported at 43 M.J. 372 (1995), is at Appendix C. The

unpublished Air Force Court of Criminal Appeals’ decision

(No. ACM 29249, May 12, 1995) before that is at Appendix D.

The first opinion of the Court of Appeals for the Armed

Forces, then the Court of Military Appeals, reported at 40 M.J.

462 (C.M.A. 1994), is at Appendix E. The Air Force Court of

Criminal Appeals’, then the Air Force Court of Military

Review's, firit opinion was reported at 36 M.J. 1103 (AFCMR

1993), and is at Appendix F.

JURISDICTION

The judgment of the United States Court of Appeals for

the Armed Forces was entered on September 15, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.A. § 1259

(3) (West Supp. 1996) and 10 U.S.C.A. § 867(a) (West Supp.

1996).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment to the

Constitution of the United States provides in relevant part:

“No person shall . . . be deprived of life, liberty, or

property, without due process of law .. .”

STATEMENT OF THE CASE

Procedural History:

On 15,16,17,22 and 23 January 1991, petitioner was tried

by a general court-martial at Carswell Air Force Base, Texas.

He was ccuvizted, contrary to his pleas, of one specification

of disobeying a lawful order of a superior commissioned

officer, one specification of disobeying a lawful order of a

non-commissioned officer, and wrongfully using marijuana

on divers occasions, in violation of Articles 90, 91, and 112a,

Uniform Code of Military Justice, 10 U.S.C. §§ 890, 891, and

91 2a, respectively.

He was sentenced to a bad conduct discharge,

confinement for 12 months, forfeiture of $500.00 pay per

month for 6 months, and reduction to the grade of airman

basic (El). On 17 April 1991, pursuant to the advice from his

staff judge advocate, the convening authority, 8th Air Force

Commander Lieutenant General Shuler, Jr., dismissed Charge

I and its specification due to an improper referral, approved

the finding of guilt to Charge III and its specification, and

approved a bad conduct discharge, confinement for 10

months, forfeiture of $500.00 pay per month for 6 months,

and reduction to the grade of airman basic (E~1).

In its initial review on 29 March 1993, the then Air Force

Court of Military Review affirmed the finding but reassessed

the sentence because the Court was uncomfortable that the

convening authority, after disapproving a charge that

constituted 5 years of the maximum 7 years in confinement

petitioner was subject to, could meaningfully determine what

the sentence would have been absent Charge I and its

specification. Although “confident” that a servicemember with

19% years of service and no prior disciplinary problems would

have received some jail time from enlisted and officer

members for divers uses of marijuana, the Court only

approved as an appropriate sentence a bad conduct discharge

and reduction to the grade of airman basic (E-l). United

States v. Dresen, 36 MJ 1103 (AFCMR 1993) (Appendix F) .

By that time, the petitioner had already served his 10 months

in jail.

On the first review to the Court of Appeals for the Armed

Forces, then the Court of Military Appeals, (22 September

1994) (Appendix E), that Court specifically found that the Air

Force Court had not abused its discretion by not ordering a

rehearing on sentence. However, the Court set aside the

decision, finding that the record of trial should have been

returned to the convening authority because petitioner

received inadequate representation, which was prejudicial,

when his defense counsel had asked the convening authority

to approve the bad conduct discharge, a request contrary to

the express desires of the petitioner. United States v. Dresen,

40 MJ 462 (CMA 1994).! The Court ordered petitioner’s

record of trial returned to “the Judge Advocate General of the

Air Force for referral to a new convening authority for a

recommendation by the Air Force staff judge advocate and

action by the convening authority . . .” /d, at 465. Petitioner’s

record of trial was returned to the 8th Air Force commander

(the convening authority), at that time Lieutenant General

IThe Air Force Court had found error on the part of defense counsel

requesting approval of a bad conduct discharge, contrary to appellant's

express wish, but had found no prejudice.

Stephen B. Croker, for a second submission of clemency

matters and a second staff judge advocate recommendation.

On 16 February 1995, the convening authority approved the

same sentence as had been approved in 1991: a bad conduct

discharge, confinement for 10 months, forfeiture of $500.00

pay per month for 6 months, and reduction to the = of

airman basic (E-1).

On 12 May 1995, in its second review, the now named

Air Force Court of Criminal Appeals approved the findings

and the sentence as “correct in law and fact.” (Appendix D).

No further or new issues were raised by petitioner’s counsel

prior to the Air Force Court’s 12 May 1995 decision.

For the second appeal to the Court of Appeals for the

Armed Forces, then the Court of Military Appeals, Captain

Michael McIntyre was assigned as petitioner’s appellate

defense counsel due to the permanent change of station (PCS)

of his prior appellate defense counsel. On 5 July 1995,

petitioner raised one assignment of error in his Supplement to

his Petition for a Grant of Review. On 10 July 1995 the

Government entered its “general opposition” and did not file a

specific reply. On 27 September 1995, the Court of Appeals

for the Armed Forces again set aside the decision of the Air

Force Court of Criminal Appeals, finding that the staff judge

advocate had erred in advising the convening authority that

the maximum sentence he could approve was the sentence

originally approved by the convening authority in 1991 (a bad

conduct discharge, 10 months confinement, forfeitures of

$500.00 pay per month for 6 months, reduction to the rank of

airman basic) and not the sentence ultimately approved by the

Air Force Court in its 1993 decision (a bad conduct discharge

and reduction to the rank of airman basic). The Court of

Appeals for the Armed Forces ordered that petitioner’s record

of trial be returned to the “Judge Advocate General of the Air

Force for resubmission to the convening authority for a new

re

staff judge advocate’s recommendation and action.”

(Appendix C). Appellee did not file a Petition for

Reconsideration with the Court within 10 days of its decision,

as required by Rule 31 of the Court of Appeals for the Armed

Forces Rules of Practice and Procedure. In accordance with

that Court’s decision, on 20 October 1995, the petitioner’s

record of trial was returned to the 8th Air Force commander

by The Air Force Judge Advocate General for “resubmission”

to the convening authority.

During the week of 17 December 1995, the Air Force

Appellate Defense Division (also known as “AFLSA/JAJA"),

(through petitioner’s counsel) inquired about the status of

petitioner’s clemency submissions. No new action had been

taken by that date. Petitioner had not been appointed any

defense counsel to assist him with clemency matters. No

explanation was provided as to what 8th Air Force had been

doing with petitioner’s record of trial from 20 October 1995

to 17 December 1995. The Appellate Defense Division was

informed that the 8th Air Force legal office was working with

the Appellate Government Division to petition the Court of

Appeals for the Armed Forces to reconsider its 27 September

1995 decision. This request was being made despite the fact

that The Judge Advocate General of the Air Force had

returned petitioner’s record of trial on 20 October 1995 in

order to comply with the Court of Appeals for the Armed

Forces’ order. (staff judge advocate recommendation, block

36b). On 27 December 1995, the Government filed a petition

for reconsideration, which was denied by the Court of

Appeals for the Armed Forces on 25 January 1996.

On 2 April 1996, the 8th Air Force commander, at that

time Lieutenant General Phillip Ford, upon the

recommendation of Captain Tooker and the staff judge

advocate, approved the findings and a sentence to a bad

conduct discharge and reduction to the grade of airman first

class (E-3). Captain Tooker actually wrote the staff judge

advocate recommendation and the addendum, recommending

to the convening authority that petitioner’s bad conduct

discharge be approved, although petitioner requested that the

bad conduct discharge be disapproved. On 30 July 1996, on

review to the Air Force Court of Criminal Appeals for a third

time, that Court once again affirmed. (Appendix B).

Appellant then petitioned the Court of Appeals for the

Armed Forces again. On 15 September 1997, that Court held

that the 8th Air Force legal office was not disqualified from

providing legal advice to the convening authority in

petitioner’s case. (Appendix A).

REASON FOR GRANTING THE WRIT

IT WAS IMPROPER FOR THE 8TH AIR FORCE

LEGAL OFFICE, GIVEN THEIR ACTIVE

INVOLVEMENT IN ATTEMPTING TO

OVERTURN THE COURT OF APPEALS FOR

THE ARMED FORCES’ DECISION ORDERING

A NEW ACTION, TO HAVE PROVIDED THE

LEGAL ADVICE TO THE 8TH AIR FORCE

COMMANDER, THE CONVENING

AUTHORITY, REGARDING THE DISPOSITION

OF PETITIONER’S CASE.

As noted, the Air Force Appellate Defense Division was

informed in December 1995 that the 8th Air Force legal office

was in the process of asking the Appellate Government

Division to request reconsideration out of time of the 27

September 1995 decision by the Court of Appeals for the

Armed Forces. This fact was confirmed in the staff judge

advocate’s recommendation. In the recommendation itself,

Captain Tooker states that “This office requested, through

appellate channels, that the United States Court of Appeals for

the Armed Forces reconsider their order.” (staff judge

advocate recommendation, block 36b). The staff judge

advocate, Colonel Mangin, signed the recommendation and

addendum, concurring with the statements made by Captain

Tooker. When reconsideration was denied, the 8th Air Force

legal office recommended that petitioner’s bad conduct

discharge be approved.

The Law

As Court of Appeals for the Armed Forces has long

stated, an accused’s best hope for sentencing relief is with the

convening authority. United States v. Coulter, 3 USCMA 657,

14 CMR 75, 78 (1954). Thus, an accused has a right to an

impartial review of his case for clemency. United States v.

Gordon, 1 USCMA 255, 2 CMR 161 (1952). “. . . [H]uman

behavior is such, that when a person interested in the outcome

of a trial, is called upon to pass on the results of that trial, his

decision is necessarily different from that of a person who had

no interest in the matter.” Coulter, supra, citing Gordon,

supra. It is of utmost importance to an accused that the post-

trial recommendation, upon which the convening authority

will base his action on the sentence, be free of any possible

suggestion of personal partiality or bias on the part of the

reviewer. Jd. Therefore, it was fundamentally unfair for the

8th Air Force legal office to have been involved in providing

advice to the convening authority about petitioner’s clemency

submissions after they had taken an active, and indeed lead

role, in attempting to deny petitioner the opportunity to again

submit clemency matters, which had been ordered by The

Judge Advocate General of the Air Force, pursuant to the

order of the Court of Appeals for the Armed Forces.

Article 6(c), UCMJ, 10 USC § 806(c) states:

(c) No person who has acted as member, military

judge, trial counsel, assistant trial counsel, defense

counsel, assistant defense counsel, or investigating

officer in any case may later act as a staff judge

advocate or legal officer to any reviewing authority

upon the same case.

The language of the article is not considered all inclusive, for

the intent behind the rule is clear—an accused is entitled to a

fair and impartial post-trial recommendation by a person “free

from any connection with the controversy.” See United States

v. McCormick, 34 M.J. 752 (NMCMR 1992) (citations

omitted, emphasis added); United States v. Leal, 44 MJ 235

(1996) (“The essence of post-trial practice is basic fair play.”).

As the Army Court of Military Review noted in United States

v. Brown, 17 MJ 987 (ACMR 1984), “[t]he legislative history

confirms that this Article (Article 6(c)) was developed to

‘secure review by an impartial Air Force judge advocate or

legal officer . . .. S.Rep. No. 81-486, 81th Cong., Ist Sess. 9,

reprinted in Index and Legislative History, Uniform Code of

Military Justice 996.” Because of their direct involvement as

adversaries in the litigation of an issue on appeal in

petitioner’s case, Captain Tooker and the staff judge advocate

became involved in the “controversy” and created the

connection that had previously been missing.

The Air Force Court of Criminal Appeals decision

The Air Force Court’s most recent decision (30 July

1996)(Appendix B) affirming petitioner’s conviction and

sentence dismissed this issue by stating that petitioner had

cited no authority which disqualifies a staff judge advocate

under the circumstances “sub judice”, and that no member of

the 8th Air Force legal office acted in any capacity listed in

Article 6(c).

It has long been held that a staff judge advocate, because

of his position in the military justice system and because of

explicit Congressional intent, may prepare, and must prepare,

the post-trial recommendation to the convening authority.

United States v. Haimson, 5 USCMA 208, 17 CMR 208

(1954). When a staff judge advocate becomes and advocate

for the prosecution as a trial counsel or appellate counsel,

however, he or she is disqualified from providing a

recommendation. Brown, supra; United States v. Graham, 17

CMR 889 (AFBR 1954). In the case sub judice, the staff

judge advocate and Captain Tooker became advocates against

petitioner in litigation at the appellate level. The analysis by

the court below misses the point of Article 6(c) and

voluminous case law regarding post-trial processing. Jn

Brown, supra, the then Army Court of Military Review held

that a staff judge advocate, who had signed his name on

appellate pleadings involving petitioner’s case as a

government attorney, could not later provide a

recommendation to the convening authority: “To allow a

former appellate advocate to offer the convening authority

adverse advice on the very same matter offends our sense of

judicial fairness and undermines the public perception of

military judicial proceedings.” 17 MJ 986, at 987. The

drafters simply listed those persons most obviously involved

in a particular servicemember’s court-martial. The Air Force

Court of Criminal Appeals’ decision guts the intent and

purpose of Article 6(c).

The Air Force Court also stated that reconsideration was

requested because the staff judge advocate was confused over

the continued “legal viability of our earlier opinion respecting

sentence.” That conclusion is unsupported by any evidence in

the record. The Court of Appeals for the Armed Force’s order

of September 1995 was clear and not difficult to understand.

Further, nowhere in the April 1996 staff judge advocate’s

recommendation or addendum does Captain Tooker state that

the 8th Air Force legal office was confused. In fact, the

recommendation point blank states “The court held that the

reassessment by the Air Force Court of Military Review

10

limited the maximum sentence which could be approved by

the convening authority to a bad-conduct discharge and

reduction.” This opinion was absolutely correct. Clearly, the

8th Air Force legal office simply disagreed with the rationale

behind the Court of Appeals for the Armed Forces’ decision

and decided to urge the Appellate Government Division to

challenge it by asking for reconsideration. This is further

evident by reading the Petition for Reconsideration ultimately

filed by the respondent. Nowhere in the Petition did

respondent state that the 8th Air Force legal office was

“confused.” The Petition clearly shows that the 8th Air Force

legal office and respondent knew exactly what the Court of

Appeals for the Armed Forces’ decision meant—they simply

disagreed with that decision. The Air Force Court of Criminal

Appeals’ finding that the staff judge advocate was “confused”

has no merit.

Waiver is not applicable

The disqualification of the personnel listed in Article 6(c)

attaches to the work and not just the signature. McCormick,

755 (citations omitted). Mere concurrence by a staff judge

advocate in a review prepared by a disqualified person does

not constitute compliance with the requirement for impartial

review. Id, at 755 (citation omitted). Although McCormick

further cites many cases which hold that an erroneously

drafted staff judge advocate recommendation by someone

who is disqualified should be examined for prejudice, it is

clear that such drafting on the part of, for instance, a trial

counsel amounts to plain error. United States v. Rice, 33 MJ

451 (CMA 1991) (“The general principle underlying Rule for

Court-Martial (R.C.M.) 1106(b) on disqualification is that the

legal officer or staff judge advocate providing a

recommendation to the convening authority must be neutral.

The recommendation of a biased legal officer could unfairly

11

prejudice the convening authority’s decision. Thus, plain error

exists, and we are satisfied such error was prejudicial.”).

Further, Captain Tooker also completed the addendum to the

staff judge advocate recommendation, which was not served

upon defense counsel. Therefore, defense counsel did not

have an opportunity to object to the addendum. United States

v. Holt, 38 MJ 682 (AFCMR 1993), petition denied, 40 MJ

268 (CMA 1994); United States v. Waddell, ACM S29061

(A.F.Ct.Crim.App. 13 February 1996). (Appendix). Thus,

waiver is not applicable.

Prejudice

The 8th Air Force legal office’s involvement with

petitioner’s clemency matters was plain error, and it must be

presumed that such error in the post-trial processing of

petitioner’s case was prejudicial to petitioner because “we

doubt that any public confidence in the integrity and

impartiality of a process could be garnered when that process

Air Force affords disqualified persons an ‘inside track’ for

advancing their views and then purports to cloak those views

with the mantle of impartiality.” McCormick, supra, at 755,

756; Coulter, supra; citing Gordon, supra; Leal, supra.

The Air Force Court of Criminal Appeals, in the case sub

judice, stated that “[petitioner] does not even attempt to argue

whatever ‘bias’ subsists in the 8th [Air Force staff judge

advocate’s office] somehow prejudiced him” going on to note

that the legal office did recommend that appellant (petitioner)

get a couple of stripes back. This analysis ignores the facts.

During the last clemency submissions by petitioner, defense

counsel and petitioner requested (and defense counsel argued

vigorously) that petitioner’s bad conduct discharge be

disapproved. It didn’t happen. Captain Tooker and the staff

?The Air Force Court did not specifically find waiver.

12

judge advocate strongly recommended to the convening

authority that he disapprove the one thing petitioner was most

interested in having disapproved—his bad conduct discharge.*

The people who provided a recommendation to the

convening authority in petitioner’s case took the lead role on

appeal and actively participated in attempting to overturn the

decision of the Court of Appeals for the Armed Forces. They

became advocates for the Government in a controversy

involving petitioner, indeed, directly involving the very issue

that petitioner was soon to be involved in with the very same

legal office convening authority—a new staff judge advocate

recommendation, submission of clemency matters, and

convening authority Action. The 8th Air Force legal office

created a direct, adversarial, professiona: .nterest in the final

outcome of the petitioner’s case that had not existed before. It

is clear they believed the Court of Appeals for the Armed

Forces’ opinion was wrong and did not believe another

convening authority action had to be accomplished.

The processing of petitioner’s case after the Court of

Appeals for the Armed Forces’ 27 September 1995 decision

also shows that the processing of petitioner’s case was not fair

and impartial. For two months, despite the return of the record

of trial to 8th Air Force by The Judge Advocate General of the

Air Force to comply with the Court of Appeals for the Armed

Forces’ order, the 8th Air Force legal office (a subordinate

office) did nothing with petitioner’s case. No defense counsel

Appellant has a compelling case, before any unbiased legal office, for

having his BCD disapproved. He has a conviction for wrongful use of

marijuana and served 10 months in jail as part of the sentence adjudged by

the court-members and approved by the convening authority the first time.

The Air Force Court of Criminal Appeals eventually reduced his sentence

to a BCD and reduction to E-l. This remedy, however, was hardly any

remedy at all for, as appellant argued below, appellant did serve the 10

months in jail disapproved by the Air Force Court of Criminal Appeals.

13

was appointed. Petitioner was not contacted. These actions

clearly showed that the 8th Air Force legal office, in the same

adversarial nature as a trial counsel, became a biased

participant in the appellate proceedings of petitioner's case.

In addition to the actual bias in this case and the

perception of unfairness that Article 6(c) is designed to avoid,

the staff judge advocate’s recommendation provides no

assurance that petitioner’s latest clemency request was fairly

and impartially reviewed. Word for word, blocks 38, 39, and

40 of Captain Tooker’s recommendation are copied verbatim

from previous staff judge advocate recommendations. Further,

although by February 1996 petitioner had been in the Air

Force over 24 years and was 42 years old, Captain Tooker

wrote under block 39 that “Sergeant Dresen is 41 years old

and has been in the Air Force for about 19 years and 6

months.” He wrote those words because that is exactly what

had been written in the staff judge advocate’s

recommendation from a year earlier. No effort was apparently

made to ensure factual accuracy involving such an important

matter.

CONCLUSION

Under the facts of this case, # cle 6(c) was not

complied with. As with a trial counsel. investigating officer,

accuser, military judge, or defense counsel, the 8th Air Force

legal office became a party to the controversy by instigating

the Government’s petition for reconsideration because they

believed the Court of Appeals for the Armed Forces’ decision

to be in error. The 8th Air Force legal office involved

themselves in the direct litigation, at the appellate level, of

petitioner’s case and became an advocate for the United States

against petitioner. The 8th Air Force legal office became a

party to “the controversy” and was not, therefore, free from

any connection with the controversy.

14

Respectfully submitted,

/s/Margo Stone Newton

MARGO STONE NEWTON

Captain, United States Air Force

Appellate Defense Division

Counsel for Petitioner

DOUGLAS H. KOHRT

Colonel, United States Air Force

Chief, Appellate Defense Counsel

Counsel or Record

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

November 1997

la

APPENDIX A

United States, Appellee

V.

Donald J. DRESEN, Technical Sergeant

U. S. Air Force, Appellant

No. 93-0949

Crim.App. No. 29249

United States Court of Appeals for the Armed Forces

Argued April 9, 1997

Decided September 15, 1997

Counsel

For Appellant: Captain Michael L. McIntyre (argued);

Colonel Jay L. Cohen and Colonel David W. Madsen (on

‘rief); Lieutenant Colonel Kim L. Sheffield.

For Appellee: Lieutenant Colonel Michael J. Breslin (argued);

Colonel Theodore J. Fink (on brief); Major LeEllen Coacher.

Military Judge: Wade B. Morrison

Opinion of the Court

EFFRON, Judge:

At a contested trial in January 1991 at Carswell Air

Force Base, Texas, appellant was convicted by a general

court-martial composed of officer and enlisted members of

charges that he had disobeyed a lawful order of a superior

commissioned officer and that he had used marijuana on

2a

divers occasions over a 9-month period. See Arts. 90 and

112a, Uniform Code of Military Justice, 10 USC §§ 890 and

912a, respectively. The members sentenced him to a bad-

conduct discharge, confinement for 12 months, forfeiture of

$500.00 pay per month for 6 months, and reduction to the

lowest enlisted grade. On the recommendation of his staff

judge advocate (SJA), the convening authority set aside the

disobedience finding and dismissed that charge as having

been improperly referred. He did not disturb the marijuana-

use finding and approved the sentence, except for confinement

exceeding 10 months.

I. Prior Appellate Review

As a result of multiple deficiencies in the post-trial

processing of this case, it has been reviewed on three

occasions by this Court and by the court below.

In its initial review of this case, the Court of Military

Review (subsequently redesignated as the Court of Criminal

Appeals)! held that it could not be certain that the convening

authority provided adequate relief with respect to the sentence

following his dismissal of the disobedience charge. 36 MJ

1103, 1114 (1993). That court decided not to order a sentence

rehearing, however, and took curative action by reducing the

sentence to include only a bad-conduct discharge and

reduction to the lowest enlisted grade. /d. at 1114-15. On

appellant’s petition from that decision, we ordered a new

SJA’s recommendation and convening authority’s action,

based upon an unrelated issue as to ineffective assistance of

counsel during post-trial clemency proceedings. 40 MJ 462

(1994) (Dresen I).

When the case was returned to 8th Air Force, both the

original SJA and the original convening authority had

See 41 MJ 213, 229 n. * (1994)

3a

departed, and different officers occupied those positions. Upon

recommendation of the new SJA, the new convening authority

approved the same findings and sentence that the original

convening authority had approved—the use charge and a bad-

conduct discharge, confinement for 10 months, forfeiture of

$500.00 pay per month for 6 months, and reduction to the

lowest enlisted grade—despite the fact that the Court of

Military Review had not affirmed the portions of the sentence

that extended to confinement and forfeitures. 36 MJ at 1115.

The case was then forwarded to the Court of Criminal

Appeals (previously designated as the Court of Military

Review)? in February 1995, and that court affirmed the

sentence approved in the second convening authority’s action.

On appellant’s petition from that decision, we concluded that

the SJA had committed plain error when he advised the

convening authority that he could approve a sentence that

included punishments that had not been affirmed by the Air

Force appellate court during its initial review of the case, and

we ordered a new recommendation and action. 43 MJ 372

(1995)(summary disposition) (Dresen IT).

Three months later, on December 27, 1995, at the request

of the 8th Air Force SJA, the Government filed a motion in

this Court, asking us to allow filing out-of-time of a petition

for reconsideration of our disposition of Dresen IJ. The

Government argued that the legal basis upon which we had

relied was not applicable and that, because we had set aside

the lower court’s decision in Dresen I, the lower court’s

decision in that case did not place a ceiling on the sentence

that the convening authority could approve in a subsequent

opinion. This Court denied the Government’s motion to file

the petition. 43 MJ 478 (1996) (Dresen III).

2See note 1.

4a

The record then was returned to 8th Air Force for a new

SJA’s recommendation and action by the convening authority.

Both the SJA and the convening authority who had been

involved in the second recommendation and action had

departed, and these positions were now occupied by officers

who had not held those positions during either of the earlier

reviews of this case.

The new convening authority approved the remaining

marijuana-use finding and, consistent with the decision in

Dresen Il, approved only that portion of the sentence that

included a bad-conduct discharge and reduction to the grade

of EH.

The Court of Criminal Appeals, in an unpublished

decision, affirmed the findings and the newly approved

sentence. We granted appellant’s petition for review of the

following issue:

WHETHER IT WAS IMPROPER FOR THE 8TH

AF [AIR FORCE] LEGAL OFFICE, GIVEN

THEIR ACTIVE INVOLVEMENT IN

ATTEMPTING TO OVERTURN THE COURT OF

APPEALS FOR THE ARMED FORCES’

DECISION ORDERING A NEW ACTION, TO

HAVE PROVIDED THE LEGAL ADVICE TO

THE 8TH AIR FORCE COMMANDER, THE

CONVENING AUTHORITY, REGARDING THE

DISPOSITION OF APPELLANT’S CASE.

For the reasons discussed below, we hold that the 8th Air

Force Legal Office was not disqualified from providing legal

advice to the convening authority on this case

II. Analysis

Article 60(d), UCMJ, 10 USC 860(d) (1983), requires

that a convening authority of a general court-martial “obtain

and consider the written recommendation of his staff judge

Sa

advocate or legal officer” before taking post-trial action on the

findings and sentence. The only statutory disqualification

regarding who may serve as an SJA for this purpose is found

in Article 6(c), UCMJ, 10 USC § 806(c), which provides:

No person who has acted as member, military

judge, trial counsel, assistant trial counsel, defense

counsel, assistant defense counsel, or investigating

officer in any case may later act as a staff judge

advocate or legal officer to any reviewing authority

upon the same case.

RCM 1106(b), Manual for Courts-Martial, United States

(1995 ed.), contains the same disqualification language found

in Article 6(c). The non-binding Discussion that accompanies

RCM 1106(b) reflects concern that, in addition to the list of

disqualifications, a person may become “ineligible” to serve

as a staff judge advocate in a particular case by virtue of other

prior activity by that person. The Discussion states:

The staff judge advocate or legal officer may

also be ineligible when, for example, the staff judge

advocate or legal officer served as the defense

counsel in a companion case; testified as to a

contested matter (unless the testimony is clearly

uncontroverted); has other than an official interest

in the same case; or must review that officer’s own

pretrial action (such as the pretrial advice under

Article 34; see RCM 406) when the sufficiency or

correctness of the earlier action has been placed in

issue.

Appellant does not contend that the officer who was the

8th Air Force SJA on the last occasion of review by that office

had served in any of the above-listed conflicted positions.

Reflecting the fact that a different officer served as the SJA

during each of the three post-trial proceedings in this case,

appellant does not urge a theory of personal disqualification.

6a

Instead, as the granted issue reflects, appellant contends that

the entire “8th AF legal office” should be disqualified from

providing a recommendation to the convening authority by

virtue of the involvement of that office, institutionally, in

asking the appellate government division to seek

reconsideration of Dresen II.

In some cases, our Court specifically has required that a

new post-trial recommendation and action be done by a

“new” or a “different” staff judge advocate and convening

authority. See United States v. Rice, 33 MJ 451, 453 (CMA

1991). Article 6(c), RCM 1106(b), the Discussion following

that rule, and the relevant precedents of this Court all

demonstrate sensitivity to the need that the officers

performing those important statutory responsibilities be, and

appear to be, objective. See, e.g., United States v. Newman, 14

MJ 474, 482 (CMA 1983); United States v. Collins, 6 MJ 256,

257-58 (CMA 1979); United States v. Engle, 1 MJ 387, 389

(CMA 1976).

In this case, however, appellant did not ask us during any

of the prior proceedings to disqualify a particular SJA or legal

office, and nothing in our prior actions suggested any such

disqualification. While it might be possible to conceive of a

hypothetical case in which an entire legal office could become

so conflicted that the post-trial recommendation should be

done by a different SJA’s office, that would be an unusual

case. Appellant has the burden to demonstrate the basis for an

alleged disqualification, but he has not done so here.

The individuals best situated to address the potential for

bias were those directly involved in the post-trial action.

Appellant, however, did not even comment on this matter

when responding to the last SJA’s recommendation, even

though the SJA forthrightly set forth the history of the case—

including the statement that “[t]his office requested, through

appellate channels, that the United States Court of Appeals for

7a

the Armed Forces reconsider their order.” 1996 SJA Recom.

at 1 36b. Compare United States v. Caritativo, 37 MJ 175, 183

(CMA 1993)(accused’s failure to challenge SJA’s impartiality

prior to or during trial or in his clemency petition to the

convening authority waived appellate claim for new

recommendation on that ground), with Rice, 33 MJ at 453

(plain error for recommendation to be prepared by legal

officer who had testified at sentencing as a witness in

aggravation). See also United States v. Edwards, 45 MJ 114,

115—16 (1996) (no waiver of challenge to SJA’s impartiality

where defense counsel not fully aware of circumstances).

Appellant had ample opportunity during our prior

consideration of the case and during the convening authority’s

most recent action to demonstrate that the SJA or the legal

office should have been disqualified. He did not do so.

Additionally, he has not demonstrated any basis for us to find

plain error in the face of his prior failure to seek such relief.

The action of the second SJA, after our decision in Dresen II,

was limited to a professional request that the Appellate

Government Division in Washington, DC, ask us to

reconsider that decision. There were reasonable questions and

differing views about the precise meaning and the impact of

our earlier order, which the Government—exercising its

discretion in behalf of the SJA and the convening authority—

sought to answer through filing the petition for

reconsideration. It is not the sort of activity that would

provide the basis for an institutional challenge to a subsequent

SJA or an entire legal office.

III. Decision

The 1996 decision of the United States Air Force Court

of Criminal Appeals is affirmed.

Chief Judge COX and Judges SULLIVAN,

CRAWFORD, and GIERKE concur.

8a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Technical Sergeant DONALD J. DRESEN, FR396—60—2733

United States Air Force

ACM 29249 (f rev)

30 July 1996

Sentence adjudged 23 January 1991 by GCM convened at

Carswell Air Force Base,Texas. Military Judge: Wade B.

Morrison.

Approved sentence: Bad-conduct discharge and reduction to

E-4.

Appellate Counsel for Appellant: Colonel Jay L. Cohen and

Captain Michael L. McIntyre.

Appellate Counsel for the United States: Colonel Jeffery T.

Infelise and Lieutenant Colonel Michael J. Breslin.

Before

PEARSON, MORGAN, C. H., Il, and MORGAN, J.H.

Appellate Military Judges

9a

OPINION OF THE COURT

UPON FURTHER REVIEW

MORGAN, C. H., II, Judge:

This peripatetic case is before us for the third time, and

for the third time we affirm.

While his administrative discharge for personal drug

abuse was being processed, appellant’s name came up for

random urinalysis on March 5, 1990. Possibly fearing he was

“hot”! appellant engaged in various stall tactics for several

hours after the last individual had been processed. He insisted

that his constitutional rights were being violated, demanded to

see a lawyer, and adamantly declined to submit a urine

sample. When given a direct order to do so by a judge

advocate, Captain (Caps) Kaar, he mocked Capt Kaar’s

authority, declaring his belief that Capt Kaar, as a legal

officer, could not tell him what to do. Only after the acting

base commander authorized catheterization did the appellant

finally submit a urinalysis.

At about the same time, Airman First Class (A1C) Link,

provided information to the Air Force Office of Special

Investigations (AFOSI), to the effect that appellant was a

known, frequent user of marijuana. AlC Link believed ‘that

appellant actually smoked marijuana on the job, in uniform,

because he had smelled smoke coming from appellant’s room

in the dormitory and on his uniform, and had observed him

smoking what appeared to be a hand-rolled marijuana

cigarette.

'Appellant’s specimen was subsequently resumed from the laboratory as

“unsuitable for testing.” The urinalysis itself formed no part of his prose-

cution, which proceeded on the basis of his own admissions of frequent

use over a period of years and the observations of Airman First Class Link.

10a

Charges for disobedience of Capt Kaar’s order, the

subsequent order of a chief master sergeant to submit a

urinalysis sample, and for use of marijuana on divers

occasions between March 1, 1989 and November 30, 1989

were preferred in September with trial scheduled for October

2, 1990. As a result of defense counsel’s illness, it was

rescheduled for November 1, 1990. Then appellant purported

to hire a civilian defense counsel, and the trial was again

rescheduled for December. By letter of December 19, 1990,

appellant informed the trial judge that he had released his

civilian defense counsel. Having already fired a number of

local defense counsel, appellant was given a new defense

counsel and an individual military counsel from the circuit

office. He announced that he was satisfied with his

representation in the same December 19 letter to the military

judge. Nevertheless, on January 15, 1991, the first day of trial,

appellant “fired” both counsel and demanded the military

judge appoint a new civilian defense counsel to represent him

and that the trial be further delayed another “six to eight

weeks.”

After nearly four months of delay, the military judge

denied appellant’s request, and allowed him, after repeated

warnings to the contrary, to proceed pro se, with one of the

defense counsel seated at the table with him. It was later

discovered that appellant’s plan was to delay the trial,

apparently in the mistaken belief that when he reached 20

years of service, he could simply retire. It developed that the

“conflict” between appellant and his various defense counsel

stemmed from appellant’s desire to defend his case by

admitting to frequent use of marijuana to help relic him on the

job. Indeed, during the course of the trial, before members

consisting of enlisted representation, appellant freely admitted

to frequent use since 1974, but felt that it was none of the Air

Force’s business, since, in appellant’s view, his job

lla

performance did not suffer. He attributed his prosecution to a

desire on the part of Air Force authorities to punish him

because of his frequent inspector general complaints over the

condition of the dormitories on base.

The members convicted him of disobeying Capt Kaar’s

order and of the use of marijuana, but acquitted him of

disobeying the chief master sergeant’s order. They sentenced

him to a bad-conduct discharge, confinement for 1 year,

forfeiture of $500 per month for six months, and reduction to

the grade of E-I, airman basic. Yet another counsel, Capt N.

was appointed to represent appellant during clemency

proceedings. The convening authority, at the urging of his

staff judge advocate (SJA), disapproved the finding of guilty

of the disobedience charge, not on the basis of lack of proof,

but out of an excess of caution as a result of an administrative

error in the referral order. The SJA recommended the

convening authority reduce the confinement to 10 months,

which he did.

We reviewed the case and affirmed. United States v.

Dresen, 36 M.\. 1103 (A.F.C.M.R. 1993). However,

“uncomfortable” with the comparative modest sentence relief

afforded by the convening authority following his disapproval

of the disobedience charge, we reassessed the sentence and

disapproved all of the confinement and forfeitures. We also

noted that Capt N, in her clemency presentation, had

specifically requested relief which included the bad-conduct

discharge, without appellant’s consent.* We found this to be

?As in other situations, appellant had difficulty getting along with counsel.

According to him, she would not meet personally with him and declined to

return his telephone calls. According to her, she did return his calls, many

times. The real difficulty was that he refused to listen to her advice and

sent letters and documents which were not, in her judgment, in his best

interest, but rather tended to exacerbate his situation.

12a

error, but remarking on her otherwise excellent clemency

presentation, decided it was harmless.

The Court of Appeals for the Armed Forces, then the

Court of Military Appeals, disagreed with our conclusion

regarding the harmlessness of Capt N’s presentation, and

reversed. United States v. Dresen, 40 M.J. 462 (C.M.A. 1994).

It set aside our decision and returned the record of trial to The

Judge Advocate General of the Air Force “for referral to a

new convening authority for a recommendation by the staff

judge advocate and action by the convening authority, after

appellant and defense counsel have had full opportunity to

offer whatever matters they wish for consideration in this

regard.” Dresen, 40 M.1. at 465.

This was done, and we affirmed in a per curium decision

of May 10, 1995. However, on July 5, 199S, appellant filed a

Supplement to his Petition for a Grant of Review to the Court

of Appeals for the Armed Forces, arguing that the most recent

Staff Judge Advocate’s Recommendation (SJAR) had

incorrectly advised the convening authority that he could

approve 10 months confinement. The Court of Appeals for the

Armed Forces granted relief on this basis by order of

September 27, 1995. It set aside our May 10, 1995 decision

and returned the record for a third convening authority action.

A new SJAR was prepared advising the convening

authority that he could approve no more than a bad-conduct

discharge and a reduction to airman basic. The SJA continued:

While we believe that the adjudged sentence is

appropriate for the accused’s repeated use of

marijuana standing alone, we also believe, in light

of the appellate actions taken in this case, that

further sentence reassessment is in order. Therefore,

we recommend that you approve the adjudged

discharge and the reduction, but only to E-3

{airman first class].

13a

By order dated April 2, 1996, the convening authority took

clemency one step farther, approving the bad-conduct

discharge and reduction to the grade of E-4, senior airman.

This matter is now before us with three new assignments of

error: (1) that the sentence is inappropriately severe; (2) that

the office of the staff judge advocate to the convening

authority should be disqualified from writing the advice to the

convening authority in view of its request for reconsideration

of our superior Court’s September 27, 1995 order, and (3) that

the Air Force failed to comply with the Court of Appeals for

the Armed Forces 1994 referral to a “new” convening

authority.

Sentence Seventy

Nothing in the appellate tennis match which has ensued

since appellant’s conviction and the first action of the

convening authority has diminished or impeached what

appellant did. He was not merely a one-time casualty of the

Air Force urinalysis testing program, he virtually flaunted his

marijuana abuse, in front of subordinates, superiors and

ultimately, members of his court-martial. His outspoken belief

that marijuana should be treated no differently than alcohol,

and that he was entitled to smoke marijuana as a result of job

pressures stemming from his role as a dormitory manager at

Carswell Air Force Base, bespeak of a profound contempt for

Air Force authority in general, and the special trust reposed in

noncommissioned officers specifically. Our superior Court in

its 1994 opinion, declared “[w]e are not convinced that the

Court of Military Review abused its discretion when it

decided that it confidently couid conclude that appellant’s

adjudged sentence would have included at least a bad-conduct

discharge and reduction to the lowest enlisted grade, even

without the improper conviction for disobedience.” Dresen,

40 M.J. at 464. The only significant change since that time has

l4a

been that the convening authority has now restored three

stripes to appellant.* We find, therefore, that the sentence, as

approved, is not inappropriate.

The Convening Authority's SJA is Not Disqualified

Evidently appreciating the ratchet effect of repeated

referrals to convening authorities, notwithstanding the fact

that in the most recent action a five stripe reduction was

reduced to a two stripe reduction, appellant asks that we send

his case back a fourth time. He argues that, because the 8th

Air Force (AF) SJA asked that the Air Force request

reconsideration by the Court of Appeals for the Armed Forces

of its September 27. 1995 order, it betrayed a prosecutorial

bias, and was disqualified from further review under Article

6(c), UCMJ, 10 U.S.C. § 10 U.S.C. 806(c). Article 6(c)

provides that:

No person who has acted as member, military

judge, trial counsel, assistant trial counsel, defense

counsel, assistant defense counsel, or investigating

officer in any case may later act as a staff judge

advocate or legal officer to any reviewing authority

upon the same case.

Appellant cites no authority, nor are we aware of any, which

disqualifies a staff judge advocate under the circumstances

sub judice. No member of the 8th AF legal office acted in any

capacity listed in Article 6(c).

Nor did the request for reconsideration reveal an

impermissible bias. Under the circumstances, we appreciate

3In an affidavit submitted with his most recent brief, appellant complains

that he has yet to be reimbursed the $3,000 forfeiture. We assume that this

is because to date he has never had an approved, affirmed sentence. The

restoration of two stripes will add to the amount of money to which appel-

lant will be entitled.

lSa

that there was some potential for confusion in the office

following the September 27, 199S, order. The 1994 opinion of

the Court of Appeals for the Armed Forces had vacated our

decision, a vacation which seemingly comprehended our

reassessment of the sentence. The order recited R.C.M.

810(d)(1) as authority for the proposition that the SJA erred in

advising the convening authority that he could approve 10

months confinement. R.C.M. 810(d)(1) reads, in pertinent

part, as follows:

Except as otherwise provided in [the provision

relating to pretrial agreements] offenses on which a

rehearing, new trial, or other trial has been ordered

shall not be the basis for punishment in excess of or

more severe than the legal sentence adjudged at the

previous trial or hearing, as ultimately reduced by

the convening or higher authority. . . .

No retrial or rehearing had been ordered, and the SJA was

confused over the continued legal viability of our earlier

opinion respecting sentence. In addition, of course, defense

counsel made no complaint about the SJAR.

Furthermore, appellant does not even attempt to argue

that whatever “bias” subsists in the 8th AF SJA office

somehow prejudiced him. The SIA assiduously honored the

decision of the Court of Appeals for the Armed Forces, not

only advising the convening authority that he could not

approve any confinement, but recommending further

sentencing relief. The convening authority then went one

better, adding another stripe in his action. With that in mind,

we reject this assignment of error.

Failure to Comply with 1994 Court of Appeals

for the Armed Forces

Appellant argues that the government disobeyed the

order of the Court of Appeals for the Armed Forces in its 1994

l6a

decision to return the record of trial for a new

recommendation and action by a “new” convening authority.

We could decide this issue by the simple observation that it is

moot. However, it is clear that our superior Court was

primarily interested in ensuring that any subsequent action by

the convening authority respecting appellant’s case was not

tainted by the improper concession of Capt N. The original

action had been taken by the then commander of 8th Air

Force, Lt General Schuler. The second action, following

return of the record and a new SJAR, was taken by Lt General

Croker, a “new” convening authority. Nothing in the 1994

decision, nor any reason grounded in common sense, suggests

that the Court of Appeals for the Armed Forces wanted the

action referred to a separate command.*

The findings and sentence are correct in law and in fact,

the sentence is not inappropriate, and the same are hereby

AFFIRMED.

Senior Judge PEARSON and Judge MORGAN concur.

OFFICIAL

LAURA L. GREEN

Clerk of Court

*We note that, even though the September 27, 1995 order did not specify a

“new” convening authority, yet a third general officer, Lt General Ford,

took the action in this case.

17a

APPENDIX C

*372 43 M.J. 372

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

Daily Journal

Wednesday, September 27, 1995

95-248

APPEALS—SUMMARY DISPOSITIONS

95-—245248 No. 93-0949/AF. U.S. v. Donald J. Dresen. CCA

29249. On consideration of the petition for grant of review of

the decision of the United States Air Force Court of Criminal

Appeals on further review, we hold that the staff judge

advocate improperly advised the convening authority when he

stated the maximum sentence which could be approved

included a bad-conduct discharge, confinement for 10 months,

forfeiture of $500.00 pay per month for six months, and

reduction to the lowest enlisted grade (E-1). The United

States Air Force Court of Criminal Appeals (formerly the

Court of Military Review) had previously reassessed

appellant’s sentence and affirmed only so much of the

sentence as provided for a bad-conduct discharge and

reduction to E~1. This action limited the sentence which the

convening authority could approve on further review. RCM

810(d)(1), Manual for Courts-Martial, United States, 1984.

This Court has consistently held that an accused’s best hope

for sentence relief lies with the convening authority. United

States v. Bono, 26 M.J. 240, 243 n. 3 (C.M.A.1988), citing

United States v. Wilson, 9 U.S.C.M.A. 223, 226, 26 C.M.R. 3,

18a

6, 1958 WL 3280 (1958). Although defense counsel did not

bring this to the convening authority’s attention, we hold that

such misleading advice is plain error. See United States v.

Demerse, 37 M.J. 488 (C.M.A.1993). Thus, we hold that

appellant is entitled to a new staff judge advocate’s

recommendation and a new convening authority’s action.

Accordingly, it is ordered that the petition for grant of review

is hereby granted on the issue raised by appellate defense

counsel; and that the decision of the United States Air Force

Court of Criminal Appeals is set aside. The record of trial is

returned to the Judge Advocate General of the Air Force for

resubmission to the convening authority for a new staff judge

advocate’s recommendation and action. Following these

proceedings, Articles 66 and 67, Uniform Code of Military

Justice, 10 USC §§ 866 and 867 (1989), shall apply. [See also

ORDERS GRANTING PETITION FOR REVIEW this date. }

ORDERS GRANTING PETITION FOR REVIEW

95-—245249 No. 93-0949/AF. U.S. v. Donald J. Dresen. CCA

29249. [See also APPEALS—SUMMARY DISPOSITIONS

this date. }

PETITIONS FOR GRANT OF REVIEW FILED

95-—245250 No. 95-1216/AR. U.S. v. Chuckle L. Bowling.

CCA 9400970.

INTERLOCUTORY ORDERS

95-—245251 No. 94-5011/NA. U.S. v. Christopher J. Bubonics.

CCA 92-2014. Appellant’s motion to cite supplemental

authority granted.

MANDATES ISSUED

95-—245252 No. 94—0325/AF. U.S. v. Gregory A. Dale. % 17

CMR 29794.

19a

APPENDIX D

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Technical Sergeant DONALD J. DRESEN, FR396—60—2733

United States Air Force

ACM 29249 (f rev)

12 May 1995

Sentence adjudged 23 January 1991 by GCM convened at

Carswell Air Force Base, Texas. Military Judge: Wade B.

Morrison (sitting alone).

Approved sentence: Bad-conduct discharge, confinement for

10 months, forfeiture of $500 pay per month for 6 months,

and reduction to E-1.

Appellate Counsel for Appellant: Colonel Terry J.

Woodhouse, Colonel Jay L. Cohen, Captain David D. Jividen,

and Captain Robert E. Watson.

Appellate Counsel for the United States: Colonel Thomas E.

Schlegel and Captain Jane Harless.

Before

SNYDER, PEARSON, and SCHREIER

Appellate Military Judges

20a

UPON FURTHER EVIEW

PER CURIAM:

In our ordinal review of this case this Court approved the

findings but reassessed the sentence and approved it as

reassessed. United States v. Dresen, 36 M.J. 1115 (A F.C.M.R.

1993). The then Court of Military Appeals, however, set aside

our decision and ordered a new Staff Judge Advocate

Recommendation and a new action by the convent authority.

United States v. Dresen, 40 M.J. 462, 465 (C.51LA. 1994).

Those actions have been completed and we find the

findings and sentence correct in law and fact. Accordingly,

they are hereby

AFFIRMED.

21a

APPENDIX E

*462 UNITED STATES, Appellee

V.

Donald J. DRESEN, Technical Sergeant U.S. Air Force,

Appellant.

No. 93-0949/AF.

CMR No. 29249.

U.S. Court of Military Appeals.

Argued June 2, 1994.

Decided Sept. 22, 1994.

Accused was convicted by a general court-martial, Wade

B. Morrison, J., of willful disobedience of superior

commissioned officer and divers uses of marijuana. The

United States Air Force Court of Military Review, 36 M.J.

1103, affirmed as reassessed. Review was granted. The United

States Court of Military Appeals, Wiss, J., held that: (1)

improper referral to trial of disobedience charge did not

prejudice accused, but (2) Court of Military Review erred

when, after finding that accused’s defense counsel committed

posttrial error by requesting convening authority approval of

bad conduct discharge contrary to accused’s express desire for

clemency form of disapproval of punitive separation, it failed

to return record of trial for new convening authority action.

Decision set aside and record returned for new action.

”

aad

1. MILITARY JUSTICE k1433

258A —

258AX Review of Courts-Martial

258AX(B)_ Further Review

258AX(B)1 In General

258Ak1430 Appellate Disposition

258Ak1433 Reassessment to cure error.

C.M.A. 1994.

When Court of Military Review finds trial error that

impacted on adjudged sentence, it may put itself in shoes of

military judge or court members who originally adjudged

sentence and reassess sentence to one no greater than that

which sentencing body would have adjudged absent the error.

2. MILITARY JUSTICE k1433

258A a

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1_ In General

258Ak430 Appellate Disposition

258Ak1433 Reassessment to cure error.

[See headnote text below]

2. MILITARY JUSTICE k1434

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1_ In General

258Ak1430 Appellate Disposition

258Ak1434 Remand; rehearing.

C.M.A. 1994.

When Court of Military Review finds trial error that

impacted on adjudged sentence but cannot put itself in shoes

23a

of original sentencer and reassess sentence to one no greater

than that which sentencing body would have adjudged absent

error, it must then set aside sentence and order sentence

rehearing at which sentence may be adjudged that is untainted

by error in question.

3. MILITARY JUSTICE k1322.1

S8A —

258AVIII Sentence

258Ak1322 Nature and Extent of Punishment

258Ak1322.11n general.

[See headnote text below]

3. MILITARY JUSTICE k1433

258A ——

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1430 Appellate Disposition

258Ak1433 Reassessment to cure error.

C.M.A, 1994.

Court of Military Review did not abuse its discretion

when it concluded that accused’s adjudged sentence would

have included at least bad conduct discharge and reduction to

lowest enlisted grade, even without his improper conviction

for disobedience; while disobeying superior officer’s order to

give urine sample was serious military misconduct, that order

in fact merely related to course of drug abuse over many

months which was subject of remaining, valid conviction,

particularly since, after rejecting services of detailed defense

counsel, accused proceeded pro se and adamantly maintained

that his marijuana use never hurt his duty performance and

was justified for relaxation purposes.

24a

4. MILITARY JUSTICE k1242

258A -~

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

[See headnote text below]

4. MILITARY JUSTICE k1316.1

258A as

258AVIII Sentence

258Ak1316 Presentencing Argument

258Ak1316.1In general.

C.M.A. 1994.

Counsel may not ask court-martial to impose punitive

discharge when accused’s wishes are to the contrary.

5. MILITARY JUSTICE k1242

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

[See headnote text below]

5. MILITARY JUSTICE k1316.1

258A —

258AVIII Sentence

258Ak1316 Presentencing Argument

258Ak1316.1In general.

C.M.A. 1994.

25a

When defense counsel seeks punitive discharge or

concedes appropriateness of punitive discharge, even as

tactical step to accomplish mitigation of other elements of

possible sentence, counsel must make record that such

advocacy is pursuant to accused’s wishes.

6. MILITARY JUSTICE k1242

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

{See headnote text below]

6. MILITARY JUSTICE k1316.1

258A —

258AVIII Sentence

258Ak1316 Presentencing Argument

258Ak1316.1In general.

C.M.A. 1994.

Posttrial advocacy that asks for or accepts

appropriateness of approval of adjudged punitive discharge,

even as imposed quid pro quo for substantially reduced

confinement, was error when acceptance of discharge flew

squarely in the face of accused’s desire to avoid it.

7. MILITARY JUSTICE k1428

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)I In General

258Ak1423 Harmless or Prejudicial Error; Test for

Reversible Error

26a

258Ak1428 Post-trial proceedings.

C.M.A. 1994.

Accused was prejudiced by counsel’s inadequate

posttrial representation in advocating bad conduct discharge,

contrary to accused’s wishes and thus was entitled to

resentencing; it was not certain that convening authority

would approve discharge against forceful and persuasive plea

for clemency, and honorable discharge had already been

approved for accused based on his administrative request to

terminate service as result of positive urinalysis, and accused

had furnished Air Force and country with lengthy dedicated

service and apparently was victim of psychological chemical

dependence on marijuana.

*463 For Appellant: Captain Robert E. Watson (argued);

Colonel Jay L. Cohen (on brief); Colonel Terry J. Woodhouse

and Captain David D. Jividen.

For Appellee: Captain Jane L. Harless (argued);

Lieutenant Colonel Thomas E. Schlegel (on brief); Colonel

Jeffery T. Infelise.

Opinion of the Court

WISS, Judge:

A general court-martial of officer and enlisted members

convicted appellant, over his not-guilty pleas, of willfully

disobeying an officer and using marijuana on divers occasions

between March and November 1989, in violation of Articles

90 and 112a, Uniform Code of Military Justice, 10 USC Secs.

890 and 912a, respectively. The members sentenced appellant

to a bad-conduct discharge, confinement for 1 year, forfeiture

of $500.00 pay per month for 6 months, and reduction to the

lowest enlisted grade. The convening authority disapproved

the disobedience conviction and dismissed that charge

because it had not been properly referred to trial. He

27a

approved, however, the marijuana finding and the adjudged

sentence except for reducing the confinement to 10 months.

In the Court of Military Review, appellant raised a

number of issues. Rejecting several appellate complaints, the

court did agree that appellant had received inadequate

representation post-trial when defense counsel, in “otherwise

excellent advocacy for appellant,” pleaded in her clemency

brief to the convening authority that appellant should receive

a sentence rehearing or, alternatively, approval of the punitive

discharge but substantial:, reduced confinement. The court

reasoned:

Of all the possible court-martial punishments, the

bad-conduct discharge was the one thing appellant

did not desire. Although Captain N probably was

entirely correct in viewing it as unlikely the

convening authority would disapprove the bad-

conduct discharge, it was error under the

circumstances of this case to specifically request

relief which included the bad-conduct discharge

without appellant’s consent ... .

36 MJ 1103, 1113 (1993). Nonetheless, the court found

no violation of Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), because appellant had not

been prejudiced by this misstep by counsel—the second of

two prongs which must be satisfied to carry the day on an

issue of inadequate representation. 36 MJ at 1113.

The Court of Military Review agreed with another of

appellant’s claims, too. In view of the fact that the convening

authority had disapproved the conviction of disobedience of

an officer, the court had some “discomfort . . . with whether

the convening authority could meaningfully determine what

sentence would have been adjudged in the absence of the

disobedience offense.” Jd. at 1114. It decided, however, that a

sentence rehearing would not be necessary to remedy any

28a

possible flaw in this respect. Itself reassessing the sentence in

line with what would have been adjudged for the divers uses

of marijuana, the court detailed all of the circumstances

appropriately before the sentencing body and concluded that it

was “confident [that] appellant’s sentence would have

included, as a minimum, a bad-conduct discharge and

reduction. [United States v.] Peoples, 29 MJ [426] at 429

[ (CMA 1990) }; [United States v.] Sales, 22 MJ [305] at 307

| (CMA 1986) ].” 36 MJ at 1115. As thus reassessed, the court

affirmed the findings and sentence.

*464 These two portions of the opinion below form the

bases for the two issues on which this Court granted

appellant’s petition for review:

I

WHETHER THE IMPROPER REFERRAL TO

TRIAL OF CHARGE I| AND SITS

SPECIFICATION ENTITLES APPELLANT TO A

NEW TRIAL ON SENTENCE.

Il

WHETHER THE AIR FORCE COURT OF

MILITARY REVIEW ERRED WHEN, AFTER

FINDING THAT APPELLANT’S DEFENSE

COUNSEL “COMMITTED [POST-TRIAL]

ERROR” BY REQUESTING CONVENING

AUTHORITY APPROVAL OF THE BAD-

CONDUCT DISCHARGE CONTRARY TO

APPELLANT’S EXPRESSED DESIRE FOR

CLEMENCY IN THE FORM OF DISAPPROVAL

OF THE PUNITIVE SEPARATION, IT FAILED

TO RETURN THIS RECORD OF TRIAL FOR A

NEW CONVENING AUTHORITY ACTION DUE

TO THEIR FINDING OF “NO PREJUDICE.”

29a

While we find no merit in the first issue, we do agree

with appellant as to the second and, accordingly, will order a

new action by the convening authority following opportunity

for appellant to submit a complete clemency package for the

convening authority’s consideration.

[1}[2] Turning to the first issue, this Court has made it

clear that, when the Court of Military Review finds a trial

error that impacted on the adjudged sentence, it may “put

itself in the shoes of the military judge or court members who

originally adjudged the sentence” and reassess the sentence to

one no greater than that which the sentencing body would

have adjudged, absent the error. United States v. Peoples, 29

MJ at 428. If the court is unable to do so, it then must set

aside the sentence and order a sentence rehearing at which a

sentence may be adjudged that is untainted by the error in

question. Jd. Accord United States v. Sales. supra; United

States v. Suzuki, 20 MJ 248 (CMA 1985).

[3] We are not convinced that the Court of Military

Review abused its discretion when it decided that it

confidently could conclude that appellant’s adjudged sentence

would have included at least a bad-conduct discharge and

reduction to the lowest enlisted grade, even without the

improper conviction for disobedience. See generally United

States v. Reed, 33 MJ 98, 99 (CMA 1991) (Court of Military

Review must be able “confidently” to “discern the extent of

[an] error’s effect on the sentencing authority’s decision”

before it may purge the error by reassessment). While

disobeying a superior officer’s order to give a urine sample is

serious military misconduct, that order in fact merely related

to the course of drug abuse over many months which was the

subject of the remaining, valid conviction. In fact, appellant

already had been processed for administrative discharge due

to an earlier instance of drug abuse that had been detected by

command-directed urinalysis.

30a

Moreover, after adamantly rejecting the services of his

detailed defense counsel, appellant proceeded pro se and was

unwavering in his position at trial that his marijuana use never

hurt his duty performance and that it was justified “as a

sedative to relax and ease the tension” of problems at work

and “of his marriage to an alcoholic spouse.” See 36 MJ at

1114. In reflecting on the sentence actually adjudged by the

members, it would not appear that the Court of Military

Review abused its discretion when conciuding that, under

these circumstances, the members would have adjudged at

least the punitive discharge and reduction in grade for the

divers uses of marijuana by this noncommissioned officer

who had betrayed his some 18 years of service. (FN*)

*465. II

The nut of the dispute between the parties on the second

issue is whether the court below erred when it concluded that

appellant had not satisfied the second prong of Strickland v.

Washington, supra—specifically, that he had suffered

prejudice from his counsel’s error. As indicated earlier,

appellant represented himself during the trial, but defense

counsel was appointed to pursue appellant’s posttrial

remedies, including filing a clemency petition with the

convening authority. See generally United States v. Palenius,

2 MJ 86 (CMA 1977).

[4][5] Of course, an accused has a right to ask the

sentencing authority for a particular punishment to the

exclusion of other kinds of permissible penalties, and a

defense counsel may advocate an accused’s wishes in this

regard in an effort to effectuate them. United States v.

Weatherford, 19 USCMA 424, 42 CMR 26 (1970). Counsel

may not, however, ask a court-martial to impose a punitive

discharge when the accused’s wishes are to the contrary.

United States v. Robinson, 25 MJ 43 (CMA 1987); United

lO eet te

3la

States v. Webb, 5 MJ 406 (CMA 1978); United States v.

Weatherford, supra. Accordingly, when defense counsel does

seek a punitive discharge or does concede the appropriateness

of such a discharge—even as a tactical step to accomplish

mitigation of other elements of a possible sentence—counsel

must make a record that such advocacy is pursuant to the

accused’s wishes. United States v. Lyons, 36 MJ 425 (CMA

1993); United States v. McNally, 16 MJ 32 (CMA 1983).

[6] Similar considerations inexorably lead to a similar

conclusion regarding any post-trial advocacy that asks for or

accepts the appropriateness of approval of an adjudged

punitive discharge. See generally United States v. Palenius,

supra. Indeed, as we noted earlier, the Court of Military

Review held that defense counsel here erred in her advocacy

of a bad-conduct discharge—even as an implied quid pro quo

for substantially reduced confinement—when acceptance of

the discharge flew squarely in the face of appellant’s desire to

avoid it.

[7] We do not agree with the court, however, that

appellant suffered no prejudice from counsel’s inadequate

representation. Just because the court concluded that the

court-martial would have sentenced appellant to a bad-

conduct discharge for his divers uses of marijuana even in the

absence of the other conviction, it is not a necessary

conclusion that the convening authority would have approved

the discharge against a forceful and persuasive plea for

clemency in that regard. Appellant had furnished the Air

Force and his country with lengthy dedicated service and

apparently was a victim of a psychological chemical

dependence on marijuana. The Secretary of the Air Force

already had approved an honorable discharge based on

appellant’s administrative request to terminate his service as a

result of his earlier positive urinalysis, so the relationship

32a

between appellant and the Air Force soon would have been

severed even in the absence of the punitive discharge.

This Court often has referred to the convening

authority's clemency powers as an “accused’s best hope for

sentence relief,” see. e.g., United States v. Stephenson, 33 MJ

79, 83 (CMA 1991). Unfortunately, appellant’s “best hope”

was dashed by his own advocate. He deserves another

opportunity.

Il

The decision of the United States Air Force Court of

Military Review and the action of the convening authority are

set aside. The record of trial is returned to the Judge Advocate

General of the Air Force for referral to a new convening

authority for a recommendation by the staff judge advocate

and action by the convening authority, after appellant and

defense counsel have had full opportunity to offer whatever

matters they wish for consideration in this regard.

Chief Judge SULLIVAN and Judges COX,

CRAWFORD, and GIERKE concur.

FN* As these comments fairly imply, neither do we find the

corrective action by the Court of Military Review to be

insufficient as a matter of law. See United States v. Dukes,

5 Mj 71 (CMA 1978); United States v. Christopher, 13

USCMA 231, 32 CMR 231 (1962).

33a

APPENDIX F

*1103 UNITED STATES

v.

Technical Sergeant Donald J. DRESEN, FR396—60—2733,

United States Air Force.

ACM 29249.

U.S. Air Force Court of Military Review.

Sentence Adjudged 23 Jan. 1991.

Decided 22 March 1993.

Accused was convicted by general court-martial,

Carswell Air Force Base, Texas, Wade B. Morrison, J., of

willful disobedience of superior commissioned officer and

divers uses of marijuana. Convening authority disapproved

findings on willful disobedience offense, dismissed that

charge and specification, and reduced confinement portion of

sentence. The United States Air Force Court of Military

Review, Snyder, J., held that: (1) accused was not entitled to

continuance to obtain civilian counsel; (2) accused was aware

of and appreciated risks of self-representation; (3) accused

was not denied effective assistance of counsel; and (4)

sentence would be reassessed.

Affirmed, as reassessed.

1. MILITARY JUSTICE k1187.1

258A —

258AVI Time for Trial and Continuance

258Ak1187 Continuances

258Ak1 187.1 In general.

AFCMR 1993.

Military judge is authorized to grant request by either

party for continuance as often as fairness may dictate. UCM3J,

Art. 40, 10 U.S.C.A. Sec. 840.

2. MILITARY JUSTICE k1 187.1

258A —

258AVI Time for Trial and Continuance

258Ak1 187 Continuances

258Ak1 187.1 In general.

AFCMR 1993.

Request for continuance is addressed to sound discretion

of trial judge, and only clear abuse of that discretion will

result in error; such discretion is very broad, and only myopic

insistence upon expeditiousness in face of justifiable need for

delay, which must be determined on case-by-case, will

constitute abuse of discretion. UCMJ, Art. 40, 10 U.S.C.A.

Sec. 840.

3. MILITARY JUSTICE k1 187.1

258A —

258AVI Time for Trial and Continuance

258Ak1 187 Continuances

258Ak1 187.1 In general.

AFCMR 1993.

Some factors weighed in testing for abuse of discretion

in denying continuance are: number of prior delays granted,

timeliness and stage in proceedings continuance was

requested, and, if based on dissatisfaction of counsel,

adequacy of trial court’s inquiry into accused’s complaint

against counsel. UCMJ, Art. 40, 10 U.S.C.A. Sec. 840.

35a

4. MILITARY JUSTICE k1 188

258A —

258AVI Time for Trial and Continuance

258Ak1 187 Continuances

258Ak1 188 Grounds.

AFCMR 1993.

Accused was not entitled to continuance to enable him to

retain civilian counsel; there was more than reasonable basis

on which to conclude that accused’s request was made solely

for purpose of delay, in view of prior delays granted to

accused and timing of his request, and, other record evidence

that ruling was unreasonable insistence on expeditiousness.

UCM, Art. 32, 10 U.S.C.A. Sec. 832.

5. MILITARY JUSTICE ki 188

258A —

258AVI Time for Trial and Continuance

258Ak1 187 Continuances

258Ak1 188 Grounds.

AFCMR 1993.

Accused’s right to obtain civilian counsel at any point in

trial does not guarantee accused delay in progress of trial for

him to do so. UCMJ, Art. 38(b), 10 U.S.C.A. Sec. 838(b).

6. MILITARY JUSTICE k1 188

258A =

258AVI Time for Trial and Continuance

258Ak1 187 Continuances

258Ak1 188 Grounds.

AFCMR 1993.

Right to counsel of one’s choice, unlike Sixth

Amendment right to assistance of counsel, is not absolute and

36a

must be balanced against society’s interest in efficient and

expeditious administration of justice. UCMJ, Art. 38(b), 10

U.S.C.A. Sec. 838 (b); U.S.C.A. Const.Amend. 6.

7. MILITARY JUSTICE k1 188

258A —

258AVI Time for Trial and Continuance

258Ak1 187 Continuances

258Ak1 188 Grounds.

AFCMR 1993.

Sixth Amendment right to counsel may not be

manipulated for purposes of delay or to thwart ends of justice.

UCMJ, Art. 32, 10 U.S.C.A. Sec. 832; U-.S.C.A.

Const.Amend. 6.

8. MILITARY JUSTICE k1238. 1

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1238.1 In general.

[See headnote text below]

8. MILITARY JUSTICE k1278

258A —

258AVII Trial

258Ak1278 Objections; waiver.

AFCMR 1993.

When, in face of trial judge’s clear warning that

substitute civilian counsel would not be produced at

governments expense, accused insisted on discharging his

detailed and individual military counsel for insufficient cause,

he in fact waived assistance of those counsel and his action

37a

was functional equivalent of knowing and voluntary choice to

proceed pro se. U.S.C.A. Const.Amend. 6.

9. MILITARY JUSTICE k1238.1

258A ~=

258AVII Trial

258Ak1238 Defense Counsel

258Ak1238.1In general.

[See headnote text below]

9. MILITARY JUSTICE k1278

258A —

258AVII Trial

258Ak1278 Objections; waiver.

AFCMR 1993.

Prior to allowing accused to waive representation by

counsel and proceed pro se, judge must make accused award

of disadvantages of self-representation and find that accused

understands risks and disadvantages of self-representation and

that accused’s waiver of counsel is knowing and voluntary.

R.C.M. 506(d); U.S.C.A. Const.Amend. 6.

10. MILITARY JUSTICE k1238.1

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1238.1In general.

AFCMR 1993.

Standard for determining whether accused is competent

to proceed pro se is not higher than one required for

38a

conducting or assisting in one’s defense. R.C.M. 506(d);

U.S.C.A. Const.Amend. 6.

11. MILITARY JUSTICE k1241

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1241 Establishing and severing attorney-client

relationship.

AFCMR 1993.

Trial judge should have particularized basis for its

findings that accused, who wished to discharge counsel, |

clearly understood disadvantages of self-representation and

was mentally competent to make that decision. R.C.M.

506(d).

12. MILITARY JUSTICE k1241 |

258A ~ |

258AVII Trial |

258Ak1238 Defense Counsel |

258Ak1241 Establishing and severing attorney-client |

relationship.

[See headnote text below]

12. MILITARY JUSTICE k1426

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1423 Harmless or Prejudicial Error; Test for

Reversible Error

258Ak1426 Trial matters.

en

39a

AFCMR 1993.

Trial judge’s error in failing to particularize basis for his

findings that accused clearly understood disadvantages of

self-representation and was mentally competent to make

decision was not prejudicial, in that record clearly established

basis for findings and demonstrated only that trial judge did

not abandon accused while he was proceeding claim to

original U.S. Govt. works pro se. R.C.M. 506(d).

13. MILITARY JUSTICE k1238.1

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1238.1In general.

AFCMR 1993.

Military counsel could be seated at accused’s counsel

table, though accused was proceeding pro se, where trial

judge provided clear instruction to court members regarding

military counsel’s role at trial; instruction and military

counsel’s presence in no way infringed on perception that

accused was representing himself. ;

14. MILITARY JUSTICE k1247.1

258A _

258AVII Trial

258Ak1247 Reception of Evidence

258Ak1247.1In general.

AFCMR 1993.

Military judge should not have asked military counsel if

particular unit was assigned to *1103 his home base, while

ruling on admissibility of document, and used military

counsel’s answer to exclude document from evidence, where

accused was proceeding pro se.

40a

15. MILITARY JUSTICE k1425

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1423 Harmless or Prejudicial Error; Test for

Reversible Error

258Ak1425 Evidence and witnesses.

AFCMR 1993.

Error in excluding document from evidence did not

prejudice accused, where document related to collateral

matter of minor importance.

16. MILITARY JUSTICE k1242

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

AFCMR 1993.

To successfully claim ineffective assistance of counsel,

accused must demonstrate deficient performance or errors by

counsel, and also demonstrate that he was prejudiced as result

of claimed errors. U.S.C.A. Const.Amend. 6.

17. MILITARY JUSTICE k1242

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

AFCMR 1993.

4la

Accused claiming ineffective assistance of counsel has

burden to demonstrate counsel errors and claimed prejudice.

U.S.C.A. Const.Amend. 6.

18. MILITARY JUSTICE k1242

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

AFCMR 1993.

Because of many decisions which are made during trial,

latitude accorded counsel is wide, and tactical decisions will

not be second guessed on appeal in context of claim of

ineffective assistance of counsel. U.S.C.A. Const.Amend. 6.

19. MILITARY JUSTICE k1242

258A

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

AFCMR 1993.

Accused claiming ineffective assistance of counsel failed

to prove that military counsel misadvised him during

administrative separation action, refused to request mental

evaluation of accused to pursue marijuana addiction defense,

and failed to adequately prepare for trial. U.S.C.A.

Const.Amend. 6.

20. MILITARY JUSTICE k1242

258A -

42a

258AVII Trial

258Ak1238 Defense Counsel

258Ak1242 Effective assistance of counsel; multiple

representation.

[See headnote text below]

20. MILITARY JUSTICE k1244

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1244 Post-trial duties.

AFCMR 1993.

Accused failed to establish he was denied effective

assistance of counsel during posttrial representation by

military counsel’s failure to consult with him and refusal to

advocate all errors accused believed occurred at trail.

U.S.C.A. Const.Amend. 6.

21. MILITARY JUSTICE ki244

258A —

258AVII Trial

258Ak1238 Defense Counsel

258Ak1244 Post-trial duties.

AFCMR 1993.

Accused was not denied effective assistance of counsel

during posttrial representation by military counsel’s

requesting, as alternative to rehearing on sentence, clemency |

in form of approval of bad-conduct discharge and substantial |

reduction in confinement forfeitures; although it was error for

counsel to request relief including bad-conduct discharge

without accused’s consent, accused was not prejudiced.

U.S.C.A. Const.Amend. 6.

43a

22. MILITARY JUSTICE k1392

258A ——

258AX Review of Courts-Martial

258AX(A) Initial Action on Record

258Ak1385 Staff Judge Advocate or Legal Officer’s

Review

258Ak1392 Incorrect or misleading advice, opinion, or

statement.

AFCMR 1993.

Convening authority received complete and accurate

advice on proper standard he was to apply to sentence; even if

staff judge advocate’s original review was unclear, it was

crystallized by posttrial counsel’s response to review

advocation rehearing on sentence, and staff judge advocate’s

addendum thereto.

23. MILITARY JUSTICE k1395.1

258A a

258AX Review of Courts-Martial

258AX(A) _ Initial Action on Record

258Ak1395 Determination or Relief; Approval; Matters

Considered

258Ak1395.1In general.

AFCMR 1993.

It did not appear that convening authority could have

meaningfully determined what sentence would have been

judged in absence of disobedience offense after findings

thereof were disapproved, especially in view of fact previous

offense accounted for two thirds of authorized maximum

punishment at trail.

44a

24. MILITARY JUSTICE k1415

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1414 Preservation of Grounds of Review;

Waiver; Plain Error

258Ak1415 Admission or exclusion of evidence.

AFCMR 1993.

Admission of accused’s letter to the Secretary of Air

Force, detailing accused’s drug use, was not plain error;

accused who disregarded advice of counsel during

administrative discharge action and at other times could not

be heard now to complain regarding the consequences.

Military Rules of Evid., Rule 305.

25. MILITARY JUSTICE k1433

258A —

258AX Review of Courts-Martial

258AX(B) Further Review

258AX(B)1 In General

258Ak1430 Appellate Disposition

258Ak1433 Reassessment to cure error.

AFCMR 1993.

On appeal, accused’s sentence for divers use of

marijuana would be reassessed, to reflect disapproval of

findings on willful disobedience offense, only to provide for

bad-conduct discharge and reduction to E—1, considering

difficulty in determining exact length of confinement and

forfeitures that would be appropriate, and that accused already

served whatever confinement was appropriate.

45a

*1105 Appellate Counsel for the Appellant: Captain

David D. Jividen (argued), Colonel Jeffrey R. Owens, Major

Alice M. Kottmyer, and Major Mary C. Yastishock.

Appellate Counsel for the United States: Captain Carlos

L. McDade (argued), Lieutenant Colonel Brenda J. Hollis,

and Major Paul H. Blackwell, Jr.

Before O’HAIR, SNYDER, and GRUNICK, Appellate

Military Judges.

OPINION OF THE COURT

SNYDER, Judge:

Is an accused denied his Sixth Amendment right to

counsel when the trial judge denies a request for a

continuance and informs the accused he must either proceed

with duly detailed and individual military counsel or proceed

pro se? Under the facts and circumstances of the instant case,

we hold he is not.

Contrary to his pleas, appellant was convicted by a

general court-martial, which included enlisted members, of

willful disobedience of a superior commissioned officer and

divers uses of marijuana. (FN1) He was sentenced to a bad-

conduct discharge, confinement for one year, forfeiture of

$500 pay per month for 6 months, and reduction to E-1. The

convening authority disapproved the findings on the willful

disobedience offense, dismissed that charge and specification,

and reduced the confinement portion of the sentence to 10

months. The remaining parts of the sentence were approved.

Appellant raises 13 assignments of error. Two have some

merit, and we grant appellant partial relief.

I. SIXTH AMENDMENT RIGHT TO

ASSISTANCE OF COUNSEL

Appellant avers the trial judge abused his discretion to

appellant’s prejudice by denying his request for a delay,

46a

thereby forcing appellant to proceed pro se against his wishes.

We disagree.

A. Factual Background

Charges were preferred against appellant on 27 August

1990. Captain W already was appellant’s individual military

*1106 counsel for an administrative proceeding. (FN2) After

the Article 32 Investigation, the charges were referred for trial

on 20 September 1990 and served on appellant on 25

September 1990. Trial was scheduled for 2 October 1990.

Because of Captain W’s illness and medical treatment, delays

were granted until 30 October 1990. On 26 October 1990,

however, appellant retained civilian counsel, and, on 1

November 1990, the trial judge granted civilian counsel’s

request for delay until 3 December 1990. Between 3

December 1990 and 15 January 1991, additional delays were

granted at the request of civilian counsel. Because of his

involvement with a capital murder trial, civilian counsel did

not meet again with appellant until 18 December 1990, when

he reviewed the entire case with appellant and Captain W.

After thoroughly reviewing the case and the trial strategy

Captain W proposed to pursue in defense of appellant, civilian

counsel opined appellant was in extremely capable hands with

Captain W. and civilian counsel could not offer any better

representation than Captain W was already providing.

Consequently, civilian counsel advised appellant that, in view

of Captain W’s apparent ability and thorough preparation, he

could not, in good conscience, accept appellant’s retainer and

recommended he proceed solely with Captain W’s

representation. On 19 December 1990, appellant provided a

letter informing all concerned that he had released civilian

counsel and was fully satisfied Captain W would adequately

represent him.

47a

Trial convened on 15 January 1991. After the trial judge

advised appellant of his rights regarding counsel, see R.C.M.

901(d)(4), appellant informed the trial judge he had released

both his detailed and individual military counsel. This part of

the colloquy was as follows:

M§J: Since you are here today with Captains [R] and [W], am I

correct in assuming that you wish to proceed to trial

represented by them alone?

Acc: No sir, I do not. I wish to release them at this time.

MJ: And do what? Represent yourself?

Acc: Yes, sir. I'd like to submit this to you sir.

MJ: Okay, I'll mark this as Appellate Exhibit 1. (FN3)

Acc: Sir, may I clarify something?

MJ: Sure.

Acc: I do not wish to represent myself. J request that a

civilian attorney be assigned, and I request a six to eight

week delay to prepare. (emphasis added)

* * * k* Kk *

MJ: I have given you three and a half, over three and a half,

almost four months to get civilian counsel. You fired a civilian

counsel. You tell me you are satisfied with your military

lawyer, and then you come in today and you want a civilian

counsel. The answer to that is no. Now, do you want a

military counsel?

Acc: No sir, I do not at this time.

MJ: Okay, do you want to represent yourself?

Acc: No sir, I do not.

MJ: Well, what are you going to do? What are you going to

do, because I have given you delay after delay, to have *1107

a civilian counsel present. You fired him, you notified me that

48a

you fired him, that you are satisfied with your military

counsel, and then you come in here today and tell me that you

want a civilian counsel. I’m telling you the answer to that is

no. Now, do you want a military counsel?

Acc: No sir, I do not.

*_ *+ * & *& *€

MJ: Sergeant Dresen, what I am going to do is I’m going to

have [counsel] remain at counsel’s table throughout the trial.

Now you are representing yourself, you don’t have to consult

them if you don’t want to, but they are there to provide you

legal advice if you feel that you need it. Do you understand

that?

Acc: Yes, sir. I request that they not sit at the table though.

MJ: Well, Ill leave them there and you don’t have to ask

them anything if you don’t want, but that’s where they are

going to be.

Acc: Sir, I don’t want to give the jury the impression that I

have someone here representing me.

MJ: Well I’m not going to tell them that they are representing

you. I am going to tell them that you are representing

yourself, and that they are there to provide you legal advice if

you request it. (FN4)

B. Denial of Continuance and Pro Se

[1}{2] Upon request and for reasonable cause, the

military judge is authorized to grant requests by either party

for a continuance as often as fairness may dictate. Article 40,

UCMJ, 10 U.S.C. Sec. 840 (1988). A request for a

continuance is addressed to the sound discretion of the trial

judge, and only a clear abuse of that discretion will result in

error. United States v. Thomas, 22 M.J. 57 (C.M.A.1986);

United States v. Menoken, 14 M.J. 10 (C.M.A.1982). The

Liciieemetinmtiiietiiiia ial aici

49a

discretion granted trial judges in deciding the question of

continuances is very broad, and only “a myopic insistence

upon expeditiousness in the face of a justifiable need for

delay,” which must be determined case-by-case, will

constitute an abuse of discretion. Ungar v. Sarafite, 376 U.S.

575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964), accord

Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610,

1616-17, 75 L.Ed.2d 610 (1983); Thomas, 22 M.J. at 59.

[3][4] Some of the factors weighed in testing for an

abuse of discretion are: the number of prior delays granted,

the timeliness and stage in the proceedings the continuance

was requested, and, if based on dissatisfaction with counsel.

the adequacy of the trial court’s inquiry into appellant’s

complaint against counsel. See United States v. Torres, 793

F.2d 436 (ist Cir.1986), cert. denied, 479 US. 889, 107 S.Ct.

287, 93 L.Ed.2d 262 (1986); United States v. Stevens, 27 M.J.

626 (A.F.C.M.R.1988), aff’d, 28 M.J. 159 (C.M.A.1989),

cert. denied, 490 U.S. 1091, 109 S.Ct. 2433, 104 L.Ed.2d 989

(1989). Reviewing and weighing these particular factors, and

applying them to the instant case, we find no abuse of

discretion.

(5}[6}{7] Although Article 38(b), UCMJ, 10 U.S.C. Sec.

838(b) (1988), guarantees an accused the right to obtain

civilian counsel at any point of the trial, it does not guarantee

an accused a delay in the progress of the trial for him to do so.

An accused can always discharge his attorney, but if

he desires to substitute another attorney for the one

discharged, his right is qualified in “that the request

for substitution of counsel cannot impede or

unreasonably delay the proceedings.”

United States v. Montoya, 13 M.J. 268, 274, quoting

United States v. Jordan, 22 U.S.C.M.A. 164, 166, 46 C.M.R.

164, 166 (1973). This principle reflects the fact that, unlike

the Sixth Amendment right to the assistance of counsel, the

50a

right to counsel of one’s choice is not absolute, and must be

balanced against society’s interest in the efficient and

expeditious administration of justice. Thomas, 22 M.J. at 59,

and cases *1108 cited therein. (FN5) Further, the Sixth

Amendment right to counsel may not be manipulated for

purposes of delay or to thwart the ends of justice. United

States v. Flewitt, 874 F.2d 669 (9th Cir.1989); McMahon v.

Fulcomer, 821 F.2d 934 (3d Cir.1987).

In the instant case, appellant’s request for a continuance

the day of trial truly was an eleventh hour request. Granted, the

delays due to Captain W’s illness and civilian counsel’s docket

were not his fault, but appellant still had more than ample time

between 29 December 1990, when he released civilian counsel,

and 15 January 1991 to find another civilian counsel. The

record not only supports the conclusion appellant did nothing

between 29 December 1990 and 15 January 1991 to obtain

civilian counsel, but also that he had no realistic expectation of

obtaining another counsel. This fact is demonstrated by

appellant’s request for the trial judge to appoint a civilian

counsel, (FN6) as well as the following exchange:

MJ: Yesterday you told me you needed a delay and

made a motion to have civilian counsel provided to

you at government expense because you didn’t have

the money, and then you wanted a delay to hire a

civilian counsel, and now you do have the money

and want a delay. Let me ask you this. If I gave you -

a delay to get a civilian counsel, what would you do

with that delay? ... How would you have a civilian

attorney present your case?

Acc: Basically the same way I am going about it

now; command influence. Hopefully I could find an

attorney that would take it on a contingency basis,

because my intentions are to file a civil suit when

this matter is concluded.

Sla

Further, the trial judge ascertained appellant’s military

counsel were fully prepared, there was no evidence of an

irreconcilable conflict between appellant and his counsel, and,

when appellant informed them he no longer desired their

services, counsel were willing to proceed in the manner

appellant desired.

When appellant stated he desired a six to eight week

delay to “prepare and obtain witnesses,” the trial judge

walked appellant through the issues he proposed to raise and

the witnesses he requested and their desired testimony. This

inquiry went to the heart of appellant’s request for the

additional delay. On the basis of appellant’s responses, the

trial judge properly ruled the issues and preferred testimony

irrelevant to the proceedings.

In view of the prior delays granted appellant, his waiting

until the morning of the trial to discharge his fully prepared,

military counsel, his unrealistic request for civilian counsel.

and his baseless request for additional delay, the trial judge

had more than a reasonable basis on which to conclude

appellant’s request was made solely for purposes of delay.

(FN7)

The record reflects the trial judge was not indifferent to

appellant’s requests falling within reasonable bounds. When

appellant complained of insufficient sleep due to his

preparation for the trial’s sessions, the trial judge adjourned

earlier than normal and started later the next day. Further,

*1109 after the start of trial, the trial judge continued the

proceedings for five days to allow appellant to arrange for

witnesses on relevant issues and prepare his presentation.

Therefore, the trial judge was reasonably within his discretion

in denying appellant the six to eight week continuance. The

trial judge’s ruling was not an unreasonable insistence on

expeditiousness, but was based on the history of the case and

the merits of the request. United States v. Browers, 20 M.J.

52a

356, 361 (C.M.A.1985) (Cox, J., concurring); Stevens, 27

M.J. at 627.

[8] Although appellant informed the trial judge he did

not desire to represent himself, his actions inescapably

produced that result. After ascertaining whether an accused is

seeking to discharge an unprepared counsel, or, for personal

reasons, seeking to discharge counsel who is fully prepared,

McMahon v. Fulcomer, 821 F.2d 934, there comes a point

when the court can require an accused to proceed with

detailed counsel or proceed pro se. United States v. Flewitt,

874 F.2d at 674; United States v. Moya-Gomez, 860 F.2d 706

(7th Cir.1988), cert. denied, 492 U.S. 908 (1989). Therefore,

regardless of appellant’s desires and protestations, when, in

the face of the trial judge’s clear warning that substitute

civilian counsel would not be produced at government

expense, appellant insisted on discharging his detailed and

individual military counsel for insufficient cause, he in fact

waived the assistance of those counsel and his action was the

functional equivalent of a knowing and voluntary choice to

proceed pro se. McQueen v. Blackburn, 755 F.2d 1174, 1178

(Sth Cir.1985), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88

L.Ed.2d 125 (1985). The only question to address with

regards to this choice is whether appellant was adequately

apprised of the risks to which his choice exposed him.

C. Adequacy of Faretta (FN8) Advice

[9] Prior to allowing an accused to waive representation

by counsel and proceed pro se, the trial judge must make the

accused aware of the disadvantages of self-representation and

find the accused understands the risks and disadvantages of

self-representation and that the accused’s waiver of counsel is

knowing and voluntary. Faretta v. California, 422 U.S. 806,

95 S.Ct. 2525. 45 L.Ed.2d 562 (1975); R.C.M. 506(d).

Appellant argues the trial judge failed to make a particularized

53a

finding that he clearly understood the disadvantages of self-

representation and that appellant was mentally competent to

make the decision. In fact, appellant argues the trial judge was

required to make a two-tiered finding of mental competency:

that he was competent to stand trial, and he also possessed a

higher degree of mental competency required to proceed pro

se. We disagree with these assertions.

[10] We first address appellant’s assertion that the degree

of mental competency required for knowingly proceeding pro

se is higher than that of basic mental competency to stand

trial. This argument is based on United States v. Freeman, 28

M.J. 789 (N.M.C.M.R.1989), which appears to hold that

competence to merely assist in one’s defense with

representation of counsel is not sufficient to demonstrate

competence to proceed pro se. The Navy Court decided,

essentially, that the higher degree of competence is shown by

insuring an accused possesses the legal ability to represent

him/herself in addition to understanding the risks of self-

representation. Freeman, 28 M.J. at 792-3, 793 n. 5. We do

not read Faretta, R.C.M. 506(d), or United States v. Streater,

32 M.J. 337, as requiring such a dual standard of competency.

We join our Army brethren in holding R.C.M. 506(d)

provides the sole test for determining whether an accused is

competent to proceed pro se, and that the standard is not

higher than the one required for conducting or assisting in

one’s defense. See United States v. Mix, 32 M.J. 974, 980

(A.C.M.R.I991). We also believe the Court of Military

Appeals does not subscribe to a higher degree of competency

for a knowing decision to proceed pro se. See Streater. *1110

32 M.J. at 339 n. 3. As did the Army Court, we also view

Freeman as reflecting a record where there was a reasonable

doubt regarding Freeman’s mental responsibility, period, let

alone his competency to represent himself. Mix, 32 M.J. at

980 n. 4.

S4a

R.C.M. 506(d) reads as follows:

(d) Waiver. The accused may expressly waive the

right to be represented by counsel and may

thereafter conduct the defense personally. Such

waiver shall be accepted by the military judge only

if the military judge finds that the accused is

competent to understand the disadvantages of self-

representation and that the waiver is voluntary and

understanding. The military judge may require that

a defense counsel remain present even if the

accused waived counsel and conducts the defense

personally. ...

[11}[12] The trial judge discussed the risks of self-

representation with appellant on three occasions. (FN9) He

ascertained appellant’s education level, the length of his

military service, and he particularized the risks and difficulty

appellant could encounter, e.g., inartful examination of

witnesses and being held to the same standard as an attorney.

Although the trial judge did not particularize the basis for his

finding, he did make a finding as to appellant’s understanding

his choices and making a knowing waiver. His ruling was as

follows:

I am going to continue to allow you to represent

yourself. I don’t think it’s a good idea, but you have

that constitutional right. Captain [W] will be here to

help you if you want. You don’t have to ask him for

advice if you don’t want to. Although I don’t think

your choice is intelligently made, I think it is

knowing and voluntarily made. So I am going to

grant your request to represent yourself.

First, we do not view the trial judge’s comment on the

intelligence of appeilant’s choice as inconsistent with his

findings, but as a comment on the wisdom of appellant’s

55a

choice. Appellant asserted the need for another mental

evaluation, but the trial judge ruled another one was

unnecessary. In refusing appellant’s request, the trial judge

relied on his in-court observations, as well as an earlier

mental evaluation finding appellant mentally competent. All

of the evidence before the trial judge reflected a diagnosis of

chemical dependency, which is not a mental disease or defect.

(FN10) Further, our review of the record also convinces us the

trial judge had sufficient information to enter informed

findings.

It was error for the trial judge not to particularize the

basis for his findings, but it was not prejudicial error. Streater,

32 M.J. at 339. Our review of the record convinces us

appellant was mentally competent and made a knowing,

intelligent choice to proceed pro se. As we held in subpart B.

supra. when appellant discharged his military counsel, he

made a knowing waiver of counsel. In addition to trying to

avoid trial, appellant was adamant on how he wanted his case

handled and proceeded to do so. Single minded pursuit of an

ill-advised strategy does not equate to mental incompetence.

The record demonstrates appellant was aware of and

appreciated the risks of self-representation, which is reflected

by his persistent request for an alternative delay of five days

to prepare, which the trial judge did eventually grant. (FN11)

The record *1111 also demonstrates appellant pursued a

coherent, albeit ill-advised, strategy. He litigated his assertion

of command influence, vindictive prosecution based on

alleged bias.by the office of the staff judge advocate, and

reprisal for his filing Inspector General complaints addressing

defective showers in the dormitories. He presented evidence

of his military character, as well as attacking the credibility of

a witness called to corroborate appeliant’s prior admission.

Most important, however, the record demonstrates

compellingly that the trial judge did not abandon appellant.

56a

On numerous occasions, out of the presence of the members,

the trial judge cautioned appellant he was pursuing a path

which would provide evidence of his guilt and he might want

to reconsider. Appellant basically thanked the trial judge for

his advice and pressed on. We view this as additional

evidence of appellant knowingly proceeding with full

knowledge of the risks.

D. Requiring Counsel’s Presence At Counsel’s Table

[13] Appellant also claims prejudice from the trial

judge’s requiring Captain W to remain at counsel’s table over

appellant’s objection. We find no error. The trial judge

provided a clear instruction to the court members regarding

Captain W’s role at the trial. His instruction, and Captain W’s

presence, in no way infringed on the perception appellant was

representing himself. McKaskle v. Wiggins, 465 U.S. 168, 104

S.Ct. 944, 79 L.Ed.2d 122 (1984). In view of the fact the

record reflects appellant consulted Captain W during the trial,

we fail to discern any prejudice.

[14][15] We find no impropriety in the trial judge asking

Captain W how much time and effort he expended preparing

to defend appellant. These were questions Captain W was

obliged to answer as an officer of the court. (FN12) On the

other hand, the trial judge did err when he asked Captain W if

a particular unit was assigned to his home base, Dyess AFB,

Texas, while ruling on the admissibility of a document.

Captain W’s answer was used to exclude the document from

evidence. However, we find no prejudice. The document

related to a collateral matter of minor importance. The

remaining inquiries by the trial judge were to insure appellant

possessed the documentation he claimed he needed to litigate

his motions and pursue his defense.

57a

II. INEFFECTIVE ASSISTANCE OF COUNSEL

[16][17][18] Appellant claims he was prejudiced by

deficient performance of his defense counsel both during and

after trial. To successfully claim ineffective assistance of

counsel, appellant must demonstrate deficient performance or

errors by counsel, and also demonstrate that he was

prejudiced as a result of the claimed errors. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The burden is on appellant to demonstrate the errors

and the claimed prejudiced. Because of the many decisions

which must be made during a trial, the latitude accorded

counsel is wide, and tactical decisions will not be second

guessed on appeal. Strickland at 688-91, 104 S.Ct. at

2065-66. Lockhart v. Fretwell, __ U.S. —_. 113 S.Ct. 838, 122

L.Ed.2d 180 (1992); United States v. Scott, 24 M.J. 186

(C.M.A.1987),

A. At Trial

[19] Appellant’s complaints against Captain W are:

misadvice during the administrative separation action, refusal

to *1112 request another mental evaluation of appellant in

order to pursue the marijuana addiction defense, and failure to

adequately prepare for the trial. Appellant claims Captain W

advised him to prepare a statement for use in the discharge

action which detailed appellant’s drug use and for appellant to

submit it to the legal office after it was complete. Appellant

asserts he followed this advice to his serious detriment, for

this statement was the prosecution’s main evidence at trial.

Captain W agrees he advised appellant to draft a

Statement for submission to the Secretary of The Air Force,

(FN13) but he told appellant to first submit it to him for

review and editing. Captain W states he had no knowledge

appellant had submitted the statement to the legal office until

after the legal office phoned and advised him of receiving it.

58a

Captain W testified on appellant’s motion that he thoroughly

investigated the possibility of bias by the office of the staff

judge advocate, and concluded there was no bias against

appellant. As he stated at trial, Captain W states in his

affidavit that he was fully prepared for trial. He states he

researched and discussed with appellant the addiction defense,

advised against it, and appellant agreed to follow an

alternative strategy. Captain W relates that, the morning the

trial was to begin, appellant informed him and Captain R

appellant was releasing them to delay the trial until he reached

20 years of service. Appellant disputes Captain W’s affidavit.

After reviewing the record and the affidavits, we resolve

the factual issues against appellant. The record demonstrates

Captain W was commendably prepared. The civilian counsel's

affidavit is additional evidence of Captain W’s preparation.

Captain W requested the assistance of Captain R solely with

drafting the anticipated motions. Captain W had already

performed the research and defined the nature of the motions.

Appellant’s actions during trial, where he consistently refused

to heed prudent advice and cautions, tend to corroborate

Captain W’s statement that he advised appellant to first

submit his statement to him for review and editing, but

appellant disregarded his advice.

We also resolve against appellant his claim that Captain

W refused to pursue a mental evaluation and the defense of

addiction to marijuana. Attached to Captain W’s affidavit is a

copy of a chart outlining the advice given to appellant and the

strategy and tactics to be pursued at trial. Captain W used the

chart as he consulted with appellant in detail concerning his

trial and defense. Appellant’s initials appear by each issue and

right discussed. Consequently, we accept Captain W’s

assertions that he did not refuse to pursue a defense appellant

desired and that appellant concurred with and consented to the

Strategy to be pursued at trial. It was appellant’s conscious

ee

59a

choice which led him to pursue his addiction defense pro se,

and not deficient performance by Captain W. his individual

military counsel.

B. Post-Trial Representation

[20}[21] Captain N was detailed to represent appellant

during the post-trial Stage of his proceedings. Appellant’s

complaint against Captain N is multipronged: her refusal to

personally consult with him at the confinement facility or

return his telephone calls, and her refusal to advocate the

errors he believed occurred at his trial. Appellant alleges

Captain N refused to seek disapproval of his bad-conduct

discharge, informing him the convening authority did not

have the authority to overturn or disapprove the punitive

discharge, and that Captain N refused to assist him with

seeking rehabilitation and retention.

Captain N confirms she declined appellant’s request to

consult with him at the confinement facility. She did not do so

because of her busy schedule with other clients and because it

was her professional opinion there were no extraordinary

circumstances requiring a personal visit. She *1113 states

there was no difficulty reaching appellant by phone, and she

did return appellant’s calls. Captain N also details other

differences with appellant.

Captain N denies telling appellant the convening

authority could not disapprove the bad-conduct discharge. She

told him she viewed that as unlikely. She also states it was not

a matter of her refusing to assist appellant with preparing

requests for retention and rehabilitation, but appellant’s

refusal to accept her advice on all of the matters she raised.

Further, after she refused to prepare the presentation the way

appellant demanded, which in her view contained

inflammatory material harmful to his receiving meaningful

relief, appellant refused to discuss alternative plans with her.

60a

She also states she advised appellant she would not address

every conceivable legal issue, for those issues were already

preserved for appeal. She viewed the best strategy to be a

request for a rehearing on sentence and seeking meaningful

sentence relief. Captain N also states appellant, against her

request and advice, submitted matters directly to the

convening authority without first allowing her to review them.

She also states appellant refused to allow her to see what he

had submitted. Captain N opposed seeking a delay solely so

appellant could continue to draw E-6 pay as long as possible.

However, without her knowledge, appellant requested, and

received, a longer delay than she required to complete her

submissions on his behalf. Captain N states she advised

appellant it was in his best interest to ask for reasonable relief

which the convening authority might grant.

As is apparent, Captain N had experiences with appellant

similar to those encountered by his trial defense counsel. We

resolve the factual differences in her favor. However, that

does not dispose of this issue. Captain N submitted a thorough

and well reasoned brief on appellant’s behalf, wherein she

vigorously advocated a rehearing on sentence. Unfortunately,

we conclude Captain N committed error via the alternative

relief she sought from the convening authority.

As an alternative to a rehearing on sentence, Captain N

requested clemency in the form of an approval of the bad-

conduct discharge and a substantial reduction in the

confinement and forfeitures. Of all the possible court-martial

punishments, the bad-conduct discharge was the one thing

appellant did not desire. Although Captain N probably was

entirely correct in viewing it as unlikely the convening

authority would disapprove the bad-conduct discharge, it was

error under the circumstances of this case to specifically

request relief which included the bad-conduct discharge

without appellant’s consent. Captain N’s affidavit implies this

61a

course was pursued on the basis of professionally assessed

reality, as opposed to appellant’s consent. It detracted from

otherwise excellent advocacy for appellant. This was not a

case of urging the convening authority to reduce a

dishonorable discharge to a bad-conduct discharge. Only a

bad-conduct discharge was in issue, and it concerned a 19-

year noncommissioned officer facing loss of any chance at

retirement. To pursue this strategy, Captain N should have

insured appellant knowingly consented to it.

Although we find error by Captain N. we do not find

prejudice to appellant. The specific basis for our finding no

error will be detailed in our final disposition. Therefore,

appellant has not satisfied the second prong of the Strickland

v. Washington test.

II]. IMPROPER ADVICE TO CONVENING AUTHORITY

[22] [23] Appellant also avers the staff judge advocate

failed to inform the convening authority of the proper

Standard to apply to the sentence. Specifically, after advising

the convening authority to disapprove the findings on Charge

I and its specification and dismiss the charge, the staff judge

advocate failed to clearly advise the convening authority of

the following: that the convening authority must first

appropriately reassess the sentence to account for the change

in the findings, and then make a separate determination of

sentence *1114 appropriateness based on the reassessed

sentence. Further, appellant avers the convening authority was

not made arvare that first he must decide whether he could

determine the sentence the court would have adjudged solely

for the remaining charge. See United States v. Reed, 33 M.J.

98 (C.M.A. 1991).

Appellant raises this error as an alternative to his

argument that only a rehearing on sentence can truly provide

him a proper sentence for the sole offense remaining after the

dismissal of Charge I and its specification. The basis for this

argument is that Charge I was the means by which extremely

prejudicial evidence was admissible against appellant, and it

is extremely difficult, if not impossible, to determine what

sentence the members would have adjudged in its absence. In

the alternative, he requests another Recommendation by a

staff judge advocate and another action by the convening

authority. We partially agree with appellant.

First, we do not agree that the convening authority

received incomplete or inaccurate advice on the proper

standard he was to apply. Even if the staff judge advocate’s

original review was unclear, it was crystallized by Captain

N’s R.C.M. 1106(f) response to the review advocating a

rehearing on sentence because the two assessments could not

be done reliably, and the staff judge advocate’s addendum

thereto. We believe the convening authority was clearly aware

of the standards to be applied regarding reassessment to cure

error and sentence appropriateness. Cf. United States v. Hill,

27 M.J. 293 (C.M.A.1988).

Our discomfort is with whether the convening authority

could meaningfully determine what sentence would have

been adjudged in the absence of the disobedience offense.

This is especially so in view of the fact the disobedience

offense accounted for two-thirds of the authorized maximum

punishment at trial. See Reed, 33 M.J. at 99; United States v.

Sales, 22 M.J. 305 (C.M.A.1986). Further, although the staff

judge advocate defined the two functions the convening

authority had to perform, he did not state the basis for

determining 10 months confinement would have been

adjudged in the absence of the disobedience offense. Reed,

33 M.J. at 100. Nonetheless, at this stage of the proceedings,

we do not believe a rehearing on sentence will be necessary

to correct the situation. We will do so in our final

disposition.

63a

IV. REMAINING ASSIGNMENTS OF ERROR

[24] It was not plain error to admit appellant’s letter to

the Secretary of The Air Force. As indicated in Part II, above,

we find factually that appellant disregarded the advice of his

counsel during the administrative discharge action as well as

at other times. He cannot now be heard to complain regarding

the consequences. The trial judge properly admitted the letter

detailing appellant’s drug usage. Mil.R.Evid. 305. The issue

regarding fixed terms of trial and appellate judges has been

decided adversely to appellant. United States v. Graf, 35 M.J.

450 (C.M.A.1992). Any issue regarding trial counsel’s

argument on sentence is mooted by our disposition. We have

considered the remaining assignments of error and find them

without merit.

V. SENTENCE REASSESSMENT

[25] Because of the unique circumstances of this case,

we do not consider it in the best interests of justice to remand

for a rehearing on sentence. We are confident our action will

provide appellant with a sentence no more severe than he

would have received at trial had the disobedience offense not

been present or in the event of his acquittal thereof. United

States v. Peoples, 29 M.J. 426 (1990).

At trial, appellant never wavered regarding his views on

his use of marijuana. In fact, his adamant views on marijuana

were the source of inevitable tension between him and his

counsel. Appellant averred to the court that he used marijuana

as a sedative to relax and ease the tension of his marriage to

an alcoholic spouse. By time of trial, of course, he no longer

was married. His justification to the members was that his use

of marijuana did not interfere with the performance of his

duties. Applying our experience gained as Air Force officers

as well as trial and appellate *1115. judges on similar cases,

we are convinced the court members rejected this rationale.

64a

Further, we are also convinced they viewed appellant’s

misconduct as aggravated by the testimony that appellant’s

clothing smelled of marijuana during duty hours.

Because appellant was convicted of divers uses of

marijuana, combined with evidence of use during duty hours

and his noncommissioned officer status, we are confident

confinement would have been adjudged. The problem is

determining how much. However, regardless how much

confinement the court members would have adjudged,

appellant already has served the confinement. Thus, even if

we could accurately determine the lesser amount, assuming it

to be lesser, we cannot make appellant whole in that regard.

We can, however, adjudge a sentence which does not include

confinement or forfeitures, and will fall below the ceiling of

the entire sentence we are confident the court members would

have adjudged. Peoples, 29 M.J. at 428.

Consequently, we believe the only portions of appellant’s

sentence which are difficult to determine are the exact length

of the confinement and forfeitures. Nonetheless, we are

confident appellant’s sentence would have included, as a

minimum, a bad-conduct discharge and reduction. Peoples, 29

M.J. at 429; Sales, 22 M.J. at 307.

Accordingly, reassessing the sentence on the above basis,

we approve only so much of the sentence as provides for a

bad—conduct discharge and reduction to E-l. Article 59(a),

UCMSJ, 10 U.S.C. Sec. 859 (a) (1988). The sentence, as

reassessed, is fully appropriate. Article 66(c), UCMJ, 10

U.S.C. Sec. 866(c) (1988).

VI. DECRETAL

The findings and the sentence, as reassessed, are correct

in law and fact and are hereby,

‘hie het nh Mae sehr ae BM

6Sa

AFFIRMED.

Senior Judge O’HAIR and Judge GRUNICK concur.

FN1. In violation of Articles 90 and 112a, UCMJ, 10 USC

Secs. 890 and 912a (1988).

FN2. As a result of a command directed urinalysis which

tested positive for marijuana, appellant was the subject

of an administrative discharge action. See Air Force

Regulation (AFR) 39-10, Administrative Separation of

Airmen, Chap. 5, pare. 5-50.1 (Apr 1988). Captain F

initially represented appellant on that matter, but

appellant released him and requested Captain W. The

Secretary of The Air Force denied appellant’s request for

lengthy service probation and rehabilitation and directed

his discharge. Before the execution of his discharge,

however, appellant was selected for a base-wide random

urinalysis inspection. His sample tested positive for

marijuana, resulting in this court-martial.

FN3. In Appellate Exhibit I appellant sets forth his

dissatisfaction with all counsel who had represented him

to that point, and specifies his constitutional rights he

believed had been violated. He also stated Captain W

was the best counsel he had, but was still dissatisfied

with him. Appellant’s basic complaint was that counsel

refused to present his defense in the manner which he

desired. Counsel dispute this contention. They viewed

his strategy as ill-advised, but denied they refused to

present his desired defense.

FN4. The trial proceeded with only Captain W present.

Because of appellant’s criticism of him, the second

detailed counsel, Captain R. believed it improper for him

to continue. Upon his request, the trial judge excused

him from further participation.

66a

FNS. Appellant argues correctly that a military accused’s right

to counsel is broader in certain respects than those under

the Fifth and Fourteenth Amendments applicable to

civilian accused. See United States v. Gnibus, 21 M.J. 1

(C.M.A.1985). However, the specific extra breadth exists

primarily in the inapplicability of indigency to the

military right to counsel and the degree which the

attorney-client relationship, once formed, is protected.

Gnibus, 21 M.J. at 6. Further, the right to named counsel

under Article 38(b), UCMJ, 10 U.S.C. Sec. 838(b)

(1988) is not absolute, and there is no right to civilian

counsel at government expense.

FN6. Appellant asserted that, due to unlawful command

influence at Carswell Air Force Base, Texas, he could not

trust any military defense counsel to represent him and

present the defense he desired to present. Because of Air

Force defense counsel’s separate chain of command, this

premise rapidly collapses under its own weight. See AFR

111-1, Military Justice Guide. Chap. 18 (Sep 1988).

FN7. At the time of trial, appellant had over 19 years of

service. One of the trial judge’s essential findings is

appellant was seeking delay of his trial to reach 20 years

service, when he would be retirement eligible. In an

affidavit responding to appellant’s claim of ineffective

representation, Captain W states appellant informed him

and Captain R he was discharging them so he could

reach the 20 year point.

*1115—FN8. Faretta v. California, 422 U.S. 806, 95 S.Ct.

2525, 45 L.Ed.2d 562 (1975).

FN9. After beginning the Faretta inquiry, the trial judge

became distracted by appellant’s requests for delay and

sorting through them. However, it is far preferable for

trial judges to remain focused on the issue at hand before

67a

resuming Or moving on to another. This is the only

detraction from an otherwise commendable handling of a

case tried under difficult circumstances.

FN10. The trial judge also allowed appellant to seek another

mental evaluation during the trial, ordered trial counsel

to assist him in obtaining an appointment, and ordered

the examination to be conducted pursuant to R.C.M.

706(c)(3). There was no evidence forthcoming to

indicate appellant was other than chemically dependent

on marijuana.

FN11. Appellant tried to use that very risk to his advantage, as

represented by the following:

Acc: I think there’s a question of my psychiatric

disposition at this time. For proof of that, I am

standing here in a general court-martial defending

myself.

MJ: I agree with you that is not very smart. But that

alone does not raise insanity. I’ve been down this

road with you before. I agree your decision to go

represented by yourself has not been a smart one.

but that’s your constitutional right. But that doesn’t

raise insanity or incompetence to stand trial.

Additional exchanges in the record reflect appellant

explaining his assertion of mental incompetence to

mean he was unprepared to pursue his motions and

defense, not that he was unable to comprehend the

proceedings and meaningfully participate.

FN12. This questioning occurred after appellant had called

Captain W as a witness on part of his vindictive

prosecution motion. Although the trial judge fully

warned appellant he was making Captain W available for

cross-examination by doing so, the trial judge excused

Captain W from the witness stand without tendering him

68a

for cross-examination. We do not believe that was by

happenstance, but was done to preclude divulgence of

otherwise confidential communications.

FN13. Because of the assessed strength of the Government’s

case, including potential rebuttal evidence, and

appellant’s 19 years of service, Captain W advised

appellant to waive a board hearing and request lengthy

service consideration. See AFR 39-10, para. 6—35. If

granted, this would have placed appellant on probation

and allowed him to reach retirement eligibility.

|