United States v. Specialist GARETH A. DRUMMOND ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist GARETH A. DRUMMOND
United States Army, Appellant
ARMY 20110400
Seventh U.S. Army Joint Multinational Training Command
Jeffery Nance and Wendy P. Daknis, Military Judges
Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate (pretrial)
Lieutenant Colonel David E. Mendelson, Staff Judge Advocate (post -trial)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA: Major Richard E. Gorini, JA; Captain James S. Trieschmann, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).
22 July 2013
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SUMMARY DISPOSITION
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Per Curiam:
A panel composed of officers and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of disobeying
a superior commissioned officer, one specification of stalking, one specification of
communicating a threat, and two specifications of indecent language, in violation of
Articles 90, 120a, and 134, Uniform Code of Military Justice, 1 0 U.S.C. §§ 890,
920a, 934 (2006) [hereinafter UCMJ]. Pursuant to his plea, the military judge
convicted appellant of assault in violation of Article 128, UCMJ, 10 U.S.C. § 928.
The panel sentenced appellant to a bad-conduct discharge, confinement for twenty-
eight months, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The convening authority approved only so much of the sentence as provided for a
bad-conduct discharge, confinement for twenty-four months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
DRUMMOND – ARMY 20110400
This case is before us for review under Article 66, UCMJ . Appellate counsel
raised one issue to this court and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issue raised by
appellate counsel merits discussion and relief. The matters personally raised by
appellant are without merit.
Appellant asks this court to dismiss Specifications 3, 4, and 5 of Charge V
because “[t]here is clear evidence that the convening authority accepted the SJA’s
advice” to dismiss the specifications because they failed to state an offense under
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), but the convening authority’s
action did not reflect that dismissal. The government agrees and also requests this
court dismiss the relevant specifications.
On 9 November 2011, appellant submitted matters to the convening authority
pursuant to Rules for Courts-Martial [hereinafter R.C.M] 1105 and 1106. As part of
his request for clemency, appellant, through counsel, requested the convening
authority dismiss Specifications 3, 4, and 5 of Charge V because the specifications
failed to state an offense under Fosler. In the second addendum to his post-trial
recommendation, the staff judge advocate (SJA) advised the convening authority the
Article 134, UCMJ, specifications failed to include the terminal elements of the
offense and recommended they be dismissed for failing to state an offen se. He also
recommended the convening authority “reassess the sentence using the principles of
United States v. Reed, 33 M.J. 98, 99-100 (C.M.A. 1991), United States v. Sales, 22
M.J. 305, and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006).” In light of the
reassessment, the SJA recommended the convening authority approve only twenty -
four months of confinement but approve the remainder of the adjudged sentence.
Finally, the SJA advised the convening authority that if the recommendations were
approved, the action would read:
In the case of Specialist Gareth A. Drummond . . . only so
much of the sentence extending to reduction to the grade
of Private (E-1), forfeiture of all pay and allowances,
confinement for twenty-four (24) months and a Bad-
Conduct Discharge is approved . . . .
The recommended action did not disapprove any findings of guilty. The
convening authority subsequently signed a memorandum stating “. . . the
recommendation of the staff judge advocate is approved.” However, the conv ening
authority’s action only reflected the language set forth in the SJA’s addendum and
did not specifically address the dismissal of Specifications 3, 4, and 5 of Charge V.
Here, the action failed to effectuate the convening authority’s clear intent .
See United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988) (ordinarily an erroneous
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DRUMMOND – ARMY 20110400
action requires remand to the convening authority for a new action). However, it is
clear the convening authority agreed with the recommendation of the SJA and
intended to dismiss the Article 134, UCMJ, offenses. Most notably, the convening
authority signed a memorandum wherein he agreed with the recommendation of the
SJA and he subsequently reduced appellant’s sentence to confinement by four
months–the exact number recommended by the SJA for the legal error. Additionally,
“in the absence of contrary evidence, a convening authority who does not expressly
address findings in the action impliedly acts in reliance on the statutorily required
recommendation of the SJA and thus effectively purports to approve implicitly the
findings as reported to the convening authority by the SJA.” United States v. Diaz,
40 M.J. 334, 337 (C.M.A. 1994). Accordingly, we find dismissing “the problematic
findings . . . cannot in any way prej udice appellant and will adequately vindicate the
interests of military justice in these proceedings” Diaz, 40 M.J. at 345.
CONCLUSION
Upon consideration of the entire record, submissions by the parties, and those
matters personally raised by appellant pursuant to Grostefon, the findings of guilty
of Specifications 3, 4, and 5 of Charge V and Charge V are set aside and those
specifications and Charge V are dismissed. The remaining findings of guilty are
AFFIRMED.
Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A.
1986) and United States v. Moffeit, 63 M.J. 40 (C.A.A.F.2006), to include the factors
identified by Judge Baker in his concurring opinion, the court affirms the sentence.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings and sentence set aside by this decision, are ordered
restored. See Articles 58b(c) & 75(a), UCMJ.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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