United States v. Specialist JEREMY A. HUGHES ( 2009 )

                              JOHNSON, COOK, and BAIME
                              Appellate Military Judges
                               UNITED STATES, Appellee
                             Specialist JEREMY A. HUGHES
                            United States Army, Appellant
                                    ARMY 20090144
                 Headquarters, 3d Infantry Division and Fort Stewart
                             Tara Osborn, Military Judge
       Colonel Jonathan C. Guden, Staff Judge Advocate (pretrial and addendum)
          Lieutenant Colonel Stacy E. Flippin, Acting Staff Judge Advocate
    For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M.
    Miller, JA; Major Timothy W. Thomas, JA; Captain Pamela Perillo, JA (on
    For Appellee: Colonel Norman F.J. Allen III, JA;  Lieutenant Colonel Martha
    L. Foss, JA; Major Christopher B. Burgess, JA (on brief).
                                   9 December 2009
                                 SUMMARY DISPOSITION
    Per Curiam:
          A military judge sitting as a special court-martial convicted
    appellant, pursuant to his plea, of desertion, in violation of Article 85,
    Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 885.  The
    military judge sentenced appellant to confinement for nine months,
    reduction to the rank of E-1, and a bad-conduct discharge.  Pursuant to a
    pretrial agreement, the convening authority approved only seven months of
    the sentence to confinement, but otherwise approved the adjudged sentence.
    The convening authority also credited appellant with twenty-five days of
    pretrial confinement credit.
          This case is before us for review under Article 66, UCMJ.  Appellate
    defense counsel allege unreasonable post-trial delay as well as matters
    raised personally by appellant pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982).  For the reasons below, we will not consider these
    matters at this time and instead return the record of trial for a new
    review and action.
          The court notes a request for waiver of automatic forfeitures dated 23
    February 2009 in the record of trial.  Although the body of the request
    references the Rule for Courts-Martial (R.C.M.) 1101(c) provision
    concerning deferment of forfeitures, we consider this an oversight as the
    document is clearly styled in terms of waiver of automatic forfeitures and
    the request is for payment directly to the appellant’s family members.
    This document was inserted in the record of trial between two other post-
    trial documents: a disapproved request for a post-trial discharge in lieu
    of court-martial, dated 10 August 2009, and the DA 4430 (Report of Result
    of Trial).  Markings on the waiver request lead us to believe the
    government received this document on 2 March 2009.   We found no evidence
    in the record of trial indicating the convening authority ever saw this
    request, let alone acted upon it.  This was not cited as error in
    appellant’s R.C.M. 1105 submissions or his appellate brief.
          We are cognizant that R.C.M. 1101(d) does not require written denial
    of a request for waiver of forfeitures nor service of that denial on the
    accused.  See also United States v. Zimmer, 
    56 M.J. 869
    , 872 (Army Ct.
    Crim. App. 2002) (discussing R.C.M. 1101(d)).  However, any request
    authorized under these rules is meaningless if the convening authority does
    not at least have the opportunity to consider it, along with the factors
    listed in R.C.M. 1101(d)(2).
          Appellant has dependents, and explained in his waiver request and 1105
    matters that they were in financial need.  Based on these submissions, we
    cannot say appellant failed to demonstrate a “colorable showing of possible
    prejudice,” especially when the record contains no evidence the convening
    authority acted on the requested waiver of automatic forfeitures.  See
    United States v. Wheelus, 
    49 M.J. 283
    , 289 (C.A.A.F. 1998) (discussing
    appellant’s burden).
          This court enjoys broad powers to remedy acknowledged errors in the
    post-trial processing of cases.  See United States v. Fagan, 
    59 M.J. 238
    244 (C.A.A.F. 2004).  By returning this case for a new review and action,
    appellant has an opportunity to have his request for waiver of automatic
    forfeitures considered in a revised clemency submission.
          The action of the convening authority, dated 8 October 2009, is set
    aside.  The record of trial will be returned to The Judge Advocate General
    for a new review and action by the same convening authority in accordance
    with Article 60(c)-(e), UCMJ.
                                      FOR THE COURT:
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of Court

Document Info

DocketNumber: ARMY 20090144

Filed Date: 12/9/2009

Precedential Status: Non-Precedential

Modified Date: 1/9/2015