U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                             No. 201600421
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.
                       JUSTIN W. SCHMIDT
                Staff Sergeant (E-6), U.S. Marine Corps
                               Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
       Convening Authority: Commanding General, III Marine
               Expeditionary Force, Okinawa, Japan.
    Staff Judge Advocate’s Recommendat ion: Lieutenant Colonel
                   Christopher B. Shaw, USMC.
      For Appellant: Commander R. D. Evans, Jr., JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
          USN; Lieutenant Taurean K. Brown, JAGC, USN.
                      _________________________

                       Decided 31 January 2018
                        _________________________

 Before H UTCHISON , FULTON, and SAYEGH, Appellate Military Judges
                     _________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.

                        _________________________
HUTCHISON, Senior Judge:
    At an uncontested general court-martial, a military judge convicted the
appellant of one specification each of attempted sexual assault of a child,
attempted sexual abuse of a child, and attempted adultery, in violation of
                    United States v. Schmidt, No. 201600421


Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880. The
military judge sentenced the appellant to a reprimand, 36 months’
confinement, reduction to paygrade E-1, and a dishonorable discharge. The
convening authority (CA) disapproved the reprimand but approved the
remainder of the sentence as adjudged.
    The appellant raises five assignments of error: 1) the government’s delay
in carrying out the pretrial agreement’s forfeiture provision was
unreasonable; 2) the detailed defense counsel should have withdrawn from
representation after the appellant accused her of incompetence; 3) the staff
judge advocate (SJA) misrepresented to the CA that the appellant did not
demand speedy review or raise speedy review concerns; 4) the government
failed to submit a complete record for appellate review;1 and 5) mandatory
minimum punishments do not apply to attempted violations of Article 120b,
UCMJ.2 Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and
fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    The appellant entered into a pretrial agreement (PTA) with the CA and
agreed to plead guilty to three attempt specifications arising from his online
interactions with a Naval Criminal Investigative Service undercover agent
posing as a 14-year-old girl. In exchange for his guilty pleas, the CA agreed,
inter alia, to suspend any confinement adjudged in excess of 18 months and
to defer and then waive any automatic forfeiture of pay. Regarding the
automatic forfeiture provision, the PTA provided:
       Automatic forfeiture of any pay and allowances I am due
       during my enlistment in the amount of $3,674.40 per month
       will be deferred and waived provided that I establish and
       maintain a dependent’s allotment in the total amount of the
       deferred and waived forfeiture amount during the entire period
       of deferment. . . This agreement constitutes my request for, and
       the convening authority’s approval of, deferment and waiver of
       automatic forfeitures in the amount of $3,674.40 per month
       pursuant to Article 58b(a)(1), UCMJ. The period of deferment

   1 On 6 June 2017, we granted the government’s motion to attach documents
missing from the record of trial, rendering this assignment of error moot.
    2 Raised pursuant to United States v. Grostefon, 

(C.M.A. 1982).

Having already resolved this issue in United States v. Henegar, 

(N-M. Ct.
Crim. App. 2016), rev. denied, 

(C.A.A.F. 2016), we summarily reject this
assignment of error. United States v. Clifton, 

(C.M.A. 1992).
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                      United States v. Schmidt, No. 201600421


         will run from the date automatic forfeiture would otherwise
         become effective under Article 58b(a)(1), UCMJ, until the date
         the convening authority acts on the sentence. . . I understand
         that the period of waiver may not exceed six (6) months from
         the date of convening authority’s action. The convening
         authority agrees that the period of waiver will run six (6)
         months from the date of the convening authority’s action.3
   The specific dollar figure in the PTA provision—$3,674.40—represented
the appellant’s basic pay as a staff sergeant (E-6). However, the PTA
provided no protection from automatic or adjudged reduction to paygrade E-
1.
    Because of this incongruity, following the conclusion of the trial, the trial
counsel (TC) sent the military judge an e-mail to bring this issue to his
attention. The TC indicated the parties might need to “go back onto the
record” to “make sure [the appellant] understood that once automatic
reduction went into effect, that he would no longer receive [E-6] pay.”4 The
military judge reminded the TC that the CA agreed to defer and waive a
specific dollar amount and that the easiest course of action for the CA would
be to suspend the reduction to E-1. The military judge then warned that,
“[o]therwise, there does not appear to be a meeting of the minds on this
provision[.]”5
    Three weeks after trial, on 27 May 2016, the government moved for a
post-trial, Article 39(a), UCMJ, session to “inquire into potentially conflicting
interpretations of the forfeiture provisions” in the PTA.6 The detailed defense
counsel opposed the government’s motion, arguing that the government was
asking her to disclose the appellant’s understanding of the PTA in order to
protect the record or to “withdraw from the agreement.”7 On 8 July 2016, the
military judge ordered a post-trial Article 39(a), UCMJ, session for 19 July
2016—two and a half months after the appellant pleaded guilty.
    During the Article 39(a), UCMJ, session, the military judge concluded the
forfeiture provisions of the PTA were clear and required no further inquiry:




   3   Appellate Exhibit (AE) II at 1-2.
   4   AE V at 12.
   5   

at 1.
   7   AE VII at 3.
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                        United States v. Schmidt, No. 201600421


         There is no need to inquire into the [appellant] about what his
         understanding was. The Court understands it’s $3,674.40 per
         month. It’s in black and white. It’s right there.8
The military judge went on to explain, before adjourning the Article 39(a),
UCMJ session, that there were three options for resolving the forfeiture
provision dispute: “specific performance of the term,” the appellant’s
withdrawal from the PTA, or alternative relief consented to by the appellant.9
    On 26 September 2016, the appellant requested mast with the CA.10 In a
five-page letter attached to his request, the appellant explained that after
signing his PTA, he and his wife began aggressively paying off debts and
“crafted a budget that would enable [them] to stretch the 6 months of post-
trial pay to cover . . . essentials as well as regular payments on all of [their]
bills[.]”11 In addition, the appellant expressed his frustration with his
detailed defense counsel for the confusion and uncertainty caused by the
PTA’s forfeiture provision and for “foolishly” resisting the government’s
request for an Article 39(a), UCMJ, session.12 The appellant also noted that
the “complete lack of competency” caused him to hire a civilian defense
counsel and further aggravate his financial condition.13 On 29 September
2016, the CA denied the appellant’s request, noting that he had not yet taken
action on the case. However, on 21 October 2016—three months after the
post-trial Article 39(a), UCMJ, session—the CA retroactively deferred the
appellant’s adjudged reduction in grade so “as to ensure [the appellant]
receive[d] the benefit of his bargain under the [PTA]—deferral of automatic
forfeiture of pay in the amount of $3.674.40 per month from the date of his
adjudged sentence until the date . . . [the CA took] action on his court-
martial.”14


   8   Record at 113.
   9   

   10  See Appellee’s Motion to Attach of 25 May 17, App. 3. Requesting mast is the
process by which individuals in the Naval service request to communicate directly
with their commanding officer. See U.S. Navy Regulations, Art. 1151.1 (1990) (“The
right of any person in the naval service to communicate with the commanding officer
in a proper manner, and at a proper time and place, shall not be denied or
restricted.”).
   11   Clemency ltr of 17 Nov 16, encl (3) at 1.
   12 

“My defense counsel has failed at every turn to either object to or
contest the Government’s breach of my PTA.” 

   13   

   14 Appellee’s Second Motion to Attach of 15 Jun 17 at App 1; CG, III MEF ltr
5814 Ser SJA of 21 Oct 16.
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                      United States v. Schmidt, No. 201600421


   Following receipt of the SJA’s recommendation (SJAR), the appellant
submitted clemency through his detailed defense counsel. Enclosed with the
appellant’s request for clemency were, among other items, the five-page
request mast letter and a Prisoner Restoration/Return to Duty, Clemency
and Parole Statement, that the appellant submitted to the Head, Navy
Clemency and Parole Board (NCPB letter), on 28 October 2016. Like the
request mast letter, the NCPB letter was critical of the detailed defense
counsel’s performance. In the NCPB letter, the appellant claimed that the
detailed defense counsel “was pushing for [a PTA] before she had even seen
my charge sheet” because attorneys in the region were “unqualified to litigate
the intricacies of a sexual assault case.”15
    In response to the appellant’s clemency request, the SJA submitted an
addendum to his recommendation, enclosing the appellant’s clemency
matters and noting that there was post-trial delay in excess of 120 days. See
United States v. Moreno, 

, 142 (C.A.A.F. 2006) (applying a
presumption of unreasonable delay when the CA does not take action within
120 days of the completion of trial). However, the SJA noted that the delay
was occasioned by the appellant’s request for additional time to submit post-
trial matters and that the appellant “did not demand speedy review nor raise
speedy review concerns in his post-trial matters.”16
    On 30 November 2016, the CA took action on the case and suspended the
adjudged and automatic reduction to E-1 and waived automatic forfeitures
for six months, “to ensure the [appellant] receive[d] the agreed upon amount
of $3,674.40 pay per month for six (6) months to be paid to his dependent[.]”17
                                    II. DISCUSSION
A. PTA forfeiture provision
   The appellant avers that the five-month delay in deferring his adjudged
reduction in rank was unreasonable and breached a material term of the
PTA.
   Interpretation of a PTA is a question of law which we review de novo.
United States v. Lundy (Lundy III), 

, 301 (C.A.A.F. 2006).
Whether the government complied with the material terms and conditions of

   15  Clemency ltr of 17 Nov 16, encl (1) at 4-5; NCPB Letter at 4-5. On appeal,
however, the appellant asserts only that his detailed defense counsel was ineffective
in her post-trial representation.
   16 SJAR Addendum of 21 Nov 16 at 1. The detailed defense counsel submitted an
additional request for clemency on 30 November 2016, but did not comment on the
post-trial delay or request speedy post-trial review.
   17   CA’s Action of 30 Nov 16 at 3.
                                          5
                         United States v. Schmidt, No. 201600421


an agreement is a mixed question of law and fact. 

must
examine the entire record to determine whether the timing of payment was
material to the appellant’s decision to plead guilty. 

(citing United
States v. Perron, 

, 85 (C.A.A.F. 2003)). “The appellant has the
burden of establishing that the term or condition of the agreement was
material to his decision to plead guilty, and that the government failed to
comply with that term or condition.” United States v. Hatcher, No.
200900572, 2010 CCA LEXIS 396, at *7, unpublished op. (N-M. Ct. Crim.
App. 21 Dec 2010) (citing Lundy 

).
    The record is clear that the appellant’s decision to plead guilty was based,
in part, on the CA’s promise to defer and waive automatic forfeitures in the
amount of $3,674.40 per month. Consequently, we conclude the forfeiture
provision of the PTA was a material term. However, our inquiry must go
further. We must decide whether the timing of the government’s performance
under the PTA was a material term, and if it was, whether the CA’s delay in
deferring the appellant’s adjudged reduction in rank—thereby making the
agreed upon payment of $3,674.40 per month to the appellant’s wife
possible—was so unreasonably dilatory as to constitute noncompliance. We
conclude that it was not.
    As a threshold matter, we note that the PTA was silent regarding when
the CA was required to take the administrative actions necessary to defer
imposition of forfeitures in the amount of $3.674.40.18 The PTA simply states
that “[a]utomatic forfeiture of any pay and allowances . . . will be deferred”
and “[t]his Agreement constitutes [the appellant’s] request for and the [CA’s]
approval of, deferment . . . of automatic forfeitures . . . .”19 The appellant
argues that language in the PTA defining the deferment period
“contemplates that the timing of payments to [the appellant’s wife] was
material to the agreement.”20 Specifically, the PTA provides that “[t]he period
of deferment will run from the date automatic forfeiture would otherwise
become effective under Article 58b(a)(1), UCMJ, until the date the convening
authority acts on the sentence.” We find this language simply defines the

    18 The CA did, in fact, take administrative action to defer imposition of automatic
forfeitures immediately following trial by sending a letter to the Director, Installation
Personnel Administration Center, directing the deferral and payment of automatic
forfeitures to the appellant’s wife. See Appellee’s Motion to Attach of 25 May 17, App.
1; CG, III MEF ltr 5814 Ser SJA of 5 May 2016. But because the PTA provided no
relief from the adjudged reduction in rank—and the CA did not immediately provide
such relief—the deferred forfeitures were paid to the appellant’s wife at the E-1 rate
of $1,566.90, vice the E-6 rate of pay.
    19   AE II at 1-2.
    20   Appellant’s Brief of 17 Feb 17 at 23.
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                    United States v. Schmidt, No. 201600421


period in which the appellant remained entitled to pay under the PTA, but
does not impose any deadline on the CA.
    Regardless, even assuming that the timing of the government’s
performance under the PTA was material to the agreement and thus, to the
appellant’s decision to plead guilty, we conclude that the CA’s administrative
actions to both defer automatic forfeitures and to subsequently—and
retroactively—defer the appellant’s adjudged reduction in rank, prior to
taking action, constituted compliance. The appellant cites no case—and we
have found none—that holds a CA’s pre-action deferral constitutes
noncompliance if it does not happen immediately after trial or before the
effective date of the sentences.21 Rather, in those cases where we have found
timing to be a material term and set aside a guilty plea as improvident, our
analysis has focused not on how long the CA had to comply with the material
terms of a PTA, but instead on the potential appellate remedy when the
government fails to comply.22 Unlike those cases, the appellant here did
receive his full entitlement to E-6 pay.
    In United States v. Lundy (Lundy II), 

(C.A.A.F. 2004), the
Court of Appeals for the Armed Forces (CAAF) examined a similar argument
related to forfeitures. In Lundy II, the CA agreed to defer and then suspend
any reduction in grade and to defer and then waive for six months any
forfeiture of pay, so that Lundy’s wife would receive the deferred and waived
forfeitures at the E-6 rate. However, the parties and the military judge
overlooked an Army regulation that prevented a CA from suspending a
mandatory reduction in grade. As a result, Lundy’s wife received waived
forfeitures at the E-1 rate. While the CAAF ultimately found a material
breach in the government’s failure to provide the agreed upon forfeiture


   21 See Article 57, UCMJ, 10 U.S.C. § 857 (“(1) Any forfeiture of pay or allowances
or reduction in grade that is included in a sentence of a court-martial takes effect on
the earlier of—(A) the date that is 14 days after the date on which the sentence is
adjudged; or (B) the date on which the sentence is approved by the convening
authority.”); Article 58b, UCMJ, 10 U.S.C. § 858b (Automatic forfeiture of pay “shall
take effect on the date determined under section 857(a) of this title (article 57(a)”).
   22  See e.g., United States v. Flores, No. 200501199, 2007 CCA LEXIS 73,
unpublished op. (N-M. Ct. Crim. App. 15 Mar 2007) (concluding that despite CA’s
deferral, suspension, and waiver of reductions in grade and forfeitures, the appellant
only received E-1 pay vice the agreed upon E-6 rate and that since timing was a
material term, it could not order specific performance and could not order alternative
relief—late payment—without the appellant’s consent); 

(“If . . . the timing of
the payments is material, then belated payment cannot be treated as specific
performance, but would constitute alternative relief, which we may not substitute
without the appellant’s consent) (citing Lundy 

(Effron, J.,
concurring); 

).
                                           7
                      United States v. Schmidt, No. 201600421


amount, the court recognized that “[d]uring the six-month period in which
[Lundy’s] wife received the waived forfeitures at the E-1 rate, it was still
possible to fulfill the agreement.” Lundy 

(emphasis added).
The court noted that Army officials could have granted a waiver or exception
to their policy in order to provide the waived forfeitures at the E-6 rate. Here,
although the appellant initially received deferred forfeitures at the E-1 rate,
the CA ultimately deferred the appellant’s adjudged reduction to E-1 prior to
taking action and ensured the deferral was retroactive to encompass the
entire period of deferral. The appellant received the full benefit of his
bargain. Consequently, although there was delay, we do not find the delay so
unreasonable as to amount to noncompliance.
    Finally, even if we did find government noncompliance with a material
term of the PTA, we would still deny relief. “‘When the issue on appeal
involves delayed timing of performance by the government, the question of
whether belated performance constitutes an adequate remedy must be
assessed on a case-by-case basis.’” Hatcher, 2010 CCA LEXIS 396, at *11
(quoting Lundy 

(Effron, J. concurring in part and in the
result)). The appellant has received the benefit of his bargain. Although the
appellant alleges that the delayed performance by the government caused
him financial distress, he has failed to demonstrate any actual harm
resulting from the CA’s delayed deferral. Indeed, the confusion caused by the
PTA’s forfeiture provision resulted in extended post-trial review that included
a post-trial Article 39(a), UCMJ, session. This longer-than-normal period
prior to the CA’s action resulted in the appellant being paid retroactively over
a six-month deferment term. As a result, the appellant’s wife received
additional payments of $3,674.40 she would not have received had the CA
simply deferred the adjudged reduction in rank immediately following trial.
B. Detailed defense counsel performance
    The appellant avers his detailed defense counsel was “no longer legally
competent to represent [him] in the post-trial process” because of an actual
conflict of interest.23 The alleged conflict of interest arose after the appellant
criticized his detailed defense counsel’s competency and performance in both
his Request Mast letter and the NCPB letter.24 The appellant argues that “he




   23   Appellant’s Brief at 33.
    24 The appellant does not allege on appeal that his detailed defense counsel was

incompetent or deficient at trial; only that her representation post-trial was
burdened by a conflict of interest. See 

(“[T]he alleged ineffective assistance
occurred post-trial.”).
                                           8
                     United States v. Schmidt, No. 201600421


suffered prejudice as a result of [his detailed defense counsel’s] conflicted
representation.”25
    We review ineffective assistance of counsel claims de novo. United States
v. Akbar, 

, 379 (C.A.A.F. 2015). The Sixth Amendment entitles
criminal defendants to representation that does not fall “below an objective
standard of reasonableness” in light of “prevailing professional norms.”
Strickland v. Washington, 

, 688 (1984). This right to
representation necessarily includes the “correlative right to representation
that is free from conflicts of interest.” Wood v. Georgia, 

, 271
(1981) (citations omitted)). Generally, in order to prevail on a claim of
ineffective assistance of counsel, an appellant must demonstrate both (1) that
his counsel’s performance was deficient, and (2) that this deficiency resulted
in prejudice. United States v. Green, 68 M.J 360, 361 (C.A.A.F. 2010) .
However, in this case we need not determine whether the detailed defense
counsel’s performance was deficient. “Rather, ‘[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.’” United States v. Datavs, 

, 424-25
(C.A.A.F. 2012) (quoting 

) (alteration in original).
In the post-trial context, “there is material prejudice to the substantial rights
of an appellant if there is an error and the appellant ‘makes some colorable
showing of possible prejudice.’” United States v. Wheelus, 

, 289
(C.A.A.F. 1998) (quoting United States v. Chatman, 

, 323-24
(C.A.A.F. 1997)).
    Conflicts of interest do not necessarily demonstrate prejudice under
Strickland’s second prong. United States v. Saintaude, 

, 180
(C.A.A.F. 2005). But when a defendant can show “that a conflict of interest
actually affected the adequacy of his representation[, he] need not
demonstrate prejudice in order to obtain relief.” Cuyler v. Sullivan, 

, 349-50 (1980) (citation omitted); see also United States v Hale, 

, 722 (N-M. Ct. Crim. App. 2017) (holding that an appellant is entitled to
presumption of prejudice where his counsel labored under an actual conflict
of interest, and where the conflict had an adverse effect on the counsel’s
performance), aff’d, __ M.J. __, 2017 CAAF LEXIS 1166 (C.A.A.F Dec. 20,
2017)).
    Regardless of which standard we apply—Cuyler or Strickland—the
appellant is entitled to no relief. First, we conclude any conflict present here
did not have an adverse effect on the counsel’s performance. An adverse effect
on counsel’s performance requires an “actual lapse in representation.” 

. As we noted in Hale, “[t]o prove a lapse in representation, an


   25   

                                       9
                      United States v. Schmidt, No. 201600421


appellant must show that some plausible alternative defense strategy or
tactic might have been pursued, but was not, and that the alternative defense
was inherently in conflict with or not undertaken due to the attorney’s other
loyalties or interests.” 

(citations and internal
quotation marks omitted).
    Here, the appellant has failed to demonstrate what plausible alternative
strategy or tactic might have been pursued. Article 60, UCMJ, limited the
CA’s ability to grant clemency in this case to action on the adjudged
reprimand, the adjudged and automatic reduction in rank, and the automatic
forfeitures—all actions the CA took in granting relief to the appellant after
the detailed defense counsel submitted two separate clemency requests.26
Given this result, the appellant has failed to demonstrate what plausible
alternative strategy or tactic might have been pursued.
    Likewise, analyzing prejudice under Strickland’s second prong, the
appellant has made no colorable showing of possible prejudice. The CA
granted all of the clemency he had the authority to grant pursuant to Article
60, UCMJ: he disapproved the reprimand, suspended confinement in excess
of 18 months pursuant to the PTA, suspended both adjudged and automatic
reduction to paygrade E-1 for six months, and waived automatic forfeiture of
pay for the maximum period of six months.27 Therefore, the appellant cannot
adequately describe what the convening authority “might have done to
structure an alternative form of clemency” because no alternate form of
clemency was available. United States v. Capers, 

, 270 (C.A.A.F.
2005).
C. Staff judge advocate’s recommendation
    Finally, the appellant contends that the SJA misled the CA when he
informed him “the accused did not demand speedy review nor raise speedy
review concerns in his post-trial matters.”28 The appellant argues that
throughout the post-trial process—in his Request Mast letter, his NCPB
letter, and in the detailed defense counsel’s initial clemency request—he
complained about the government’s inaction and delay.
   While the appellant did complain of delay, his complaints were couched in
terms of his desire for the CA to defer his adjudged reduction to E-1 and



   26  Her first request included both the appellant’s Request Mast letter and the
NCPB letter, despite the criticisms each letter leveled against her. See Clemency ltr
of 17 Nov 16.
   27   CA’s Action at 2-3.
   28   SJAR Addendum at 1, ¶ 4.
                                         10
                    United States v. Schmidt, No. 201600421


restoration of his E-6 pay.29 The appellant never demanded that the CA
expedite action on the case pursuant to Article 60, UCMJ. As a result, the
SJA did not mislead the CA.
    In any event, the appellant was not prejudiced by the SJA’s comments.30
Like our post-trial ineffective assistance of counsel review above, when
assessing claims of error in the SJAR, we only “require that the appellant
make ‘some colorable showing of possible prejudice.’” United States v.
Stevens, 

, 552 (N-M. Ct. Crim. App. 2015) (quoting 

), rev. denied, 

(C.A.A.F. 2016)). We find that the
appellant has not met even this low threshold. In taking his action on the
appellant’s case, the CA considered all of the matters presented by the
appellant, including the Request Mast letter, the NCPB letter, and the
detailed defense counsel’s clemency petitions. As a result, the CA was acutely
aware of the appellant’s concerns regarding delay and subsequently granted
all available clemency. Therefore, we find no colorable showing of possible
prejudice, even if the SJA’s comments may have misled the CA.
                                 III. CONCLUSION
   The findings and sentence are affirmed.
   Judge FULTON and Judge SAYEGH concur.
                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




   29  See Appellant’s Request Mast letter at 4 (“It has now been 147 days since my
trial and 70 days since my 39[a] hearing. . . . I continue to not receive the promised
benefit of my PTA.”); NCPB Letter at 15 (“It should not have taken 6 months for the
[CA] to decide to honor a PTA); Clemency ltr of 17 Nov 16 at 2 (“[The appellant’s]
family has also suffered financial hardship due to the late action taken on the
deferral of reduction to E-1. . . . They suffered financial difficulty that would not
[have] occurred had the deferral of his reduction taken place in May 2016.”).
   30 The appellant does not allege any error related to his right to speedy post-trial
review, see 

, only that the SJA misled the CA.
                                          11