SIBLEY – ARMY 20080037

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

ZOLPER, COOK, and BAIME

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Specialist DANIEL A. SIBLEY**

**United States Army, Appellant**

ARMY 20080037

Headquarters, United States Army Alaska

Debra L. Boudreau, Military Judge

Major William D. Smoot, Acting Staff Judge Advocate 

For Appellant:  Lieutenant Colonel Jonathan F. Potter, JA; Major Teresa L. Raymond, JA; Captain Jennifer A. Parker, JA (on brief). 

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA; Lieutenant Colonel Paul T. Cygnarowicz, JA (on brief).

29 August 2008

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SUMMARY DISPOSITION

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Per Curiam:

Appellant was convicted by a military judge sitting as a special court-marital empowered to adjudge a bad-conduct discharge, pursuant to his pleas, of drunken operation of a motor vehicle, wrongful use of marijuana (two specifications), larceny of military property of a value more than $500.00, and adultery, in violation of Uniform Code of Military Justice [hereinafter UCMJ] Articles 111, 112a, 121, and 134; 10 U.S.C. §§ 911, 912a, 921, and 934 (2005).  Appellant alleges the military judge erred in accepting appellant’s plea of guilty to larceny of military property on divers occasions of a value of more than $500.00.  The appellant asserts that the military judge improperly instructed appellant that the third element of larceny required only that each item of property was of “some value,” and failed to instruct that the stolen property was “of a value more than $500.00.”  The government denies error, and argues that there is no substantial basis in law or fact to overturn appellant’s guilty plea to larceny.(  We agree with appellant that his plea to larceny of military property of a value in excess of $500.00 was not provident and we will not affirm the finding of guilty to that offense.  However, there is no dispute that the appellant stole military property of a lesser value.  We therefore affirm the finding as to The Specification of Charge I by excepting the words and figures “of a value more than $500.00” and substituting the words “of some value.”  

The remaining findings of guilty are affirmed.  Appellant was sentenced to a bad-conduct discharge, confinement for seven months, and reduction to Private E-1.  Reassessing the sentence on the basis of the error noted, the entire record, and applying 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 those principles identified by Judge Baker in his concurring opinion, the court affirms the sentence.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

( While not cited by either party, we find United States v. Harding, 61 M.J. 526 (Army Ct. Crim. App. 2005) persuasive. In Harding, the court found that appellant’s providency inquiry failed to establish larceny over $500.00, as charged; however, the court was able to amend and affirm the findings of guilty to reflect an amount over $100.00, as supported by the providency inquiry. Id at 529-530. 

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