United States v. McCALLON, 201600307

Background

Appellant pleaded guilty at a special court-martial to assault consummated by a battery (touching a victim’s pelvic area with his face) and to making a false official statement; originally charged with abusive sexual contact at a general court-martial.
Military judge sentenced appellant to 6 months confinement, reduction to E‑1, reprimand, forfeitures, and a bad‑conduct discharge; the convening authority (CA) disapproved some forfeitures and the reprimand, approved the remainder, and executed the sentence except the punitive discharge.
Trial defense counsel submitted two post‑trial clemency requests asking the CA to disapprove the punitive discharge; the first also requested disapproval of "remaining confinement."
Under the 2014 amendments to Article 60, UCMJ, the CA lacked authority to disapprove a punitive discharge for offenses committed after June 24, 2014, so the requests to disapprove the discharge were legally ineffective.
The court considered whether defense counsel’s erroneous clemency requests constituted ineffective assistance of counsel at the post‑trial stage and whether the appellant suffered prejudice from those errors.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Whether post‑trial counsel rendered ineffective assistance by requesting disapproval of a punitive discharge the CA lacked authority to grant	Counsel’s repeated request undermined credibility with the CA and failed to present a viable clemency request, prejudicing appellant	Counsel erred but appellant failed to show colorable prejudice; CA considered clemency and declined to reduce confinement	No relief — error found but no material prejudice shown
Whether counsel’s post‑trial submissions effectively resulted in no clemency advocacy	Trial defense counsel essentially asked for no meaningful relief by focusing on an unavailable remedy	Record shows counsel did request disapproval of remaining confinement and CA acknowledged clemency; CA chose not to act	No — counsel did advocate for disapproval of remaining confinement; CA declined to grant it
Whether the CA’s action indicates he was misled by counsel’s erroneous request	Appellant suggests CA may have been misled and thus failed to exercise discretion favorably	SJA did not clarify the error; no record evidence CA was aware the request was erroneous	Court presumes CA considered submissions and chose not to reduce sentence
Whether appellant needed an affidavit to show prejudice from post‑trial ineffective assistance	Appellant did not submit an affidavit alleging prejudice	Government notes absence of affidavit and reliance on the trial record	Court notes affidavits are often necessary; absence of affidavit weighed against appellant

Key Cases Cited

Scott, 24 M.J. 186 (C.M.A. 1987) (Sixth Amendment right to effective assistance of counsel applies in military cases)
Cornett, 47 M.J. 128 (C.A.A.F. 1997) (right to effective assistance extends to post‑trial counsel)
Tippit, 65 M.J. 69 (C.A.A.F. 2007) (two‑part ineffective assistance test: deficient performance and prejudice)
Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (post‑trial claims: a colorable showing of possible prejudice establishes material prejudice)
Datavs, 71 M.J. 420 (C.A.A.F. 2012) (review of post‑trial ineffective assistance claims is de novo; may resolve on prejudice first)
Kruse, 75 M.J. 971 (N‑M. Ct. Crim. App. 2016) (Article 60 authority limitations for offenses after June 24, 2014)
Doughman, 57 M.J. 653 (N‑M. Ct. Crim. App. 2002) (presumption that CA considered clemency submissions absent contrary evidence)
Lewis, 42 M.J. 1 (C.A.A.F. 1995) (affidavit often required to demonstrate prejudice from post‑trial counsel errors)