Carlos V. DIAZ-DUPREY
Staff Sergeant, U. S. Army, Appellant
Crim. App. No. 9600181
THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
Argued June 1, 1999
Decided July 30, 1999
For Appellant: Peder C. Wold (argued); Major Leslie A. Nepper and Captain John C. Einstman.
For Appellee: Captain Troy A. Smith (argued); Lieutenant Colonel Eugene R. Milhizer, Major Patricia L. Ham, and Captain Arthur J. Coulter (on brief); Colonel Russell S. Estey.
Military Judge: Patrick K. Hargus
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
We granted appellant’s petition to consider whether he was denied effective assistance of counsel at his court-martial. __ MJ __ (Daily Journal Feb. 4, 1999). We conclude that appellant has made a colorable claim of ineffective assistance of counsel, see, e.g., United States v. Wean, 45 MJ 461, 464 (1997), which can only be resolved by an evidentiary hearing. See United States v. Ginn, 47 MJ 236 (1997).
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for further proceedings under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). After such proceedings are concluded, the record of trial, along with the military judge’s findings of fact and conclusions of law, will be returned to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice, 10 USC § 866(c). Thereafter, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
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