CAAF decides Furth

In United States v. Furth , Judge Ohlson writes for the court finding no prejudice, while Judges Maggs and Hardy dissent and argue that a Dubay hearing was required before the court can determine prejudice or lack thereof.

A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of one specification of absence without leave (AWOL) and one specification of wrongful appropriation. The convening authority approved Appellant’s adjudged sentence of a reprimand, confinement for three months, and dismissal from the service. The United States Army Court of Criminal Appeals (CCA) affirmed the findings and only so much of the sentence as provided for confinement for three months and a reprimand.

​We granted review on the following issue: Whether Appellant received effective assistance of counsel when he was erroneously advised that his pending resignation request, if approved, would vacate his guilty plea. United States v. Furth, 80 M.J. 319 (C.A.A.F. 2020) (order granting review). We assume without deciding that trial defense counsel’s performance was deficient, but conclude that Appellant has failed to establish prejudice. We therefore affirm the lower court’s decision that there was no ineffective assistance of counsel in this case.