UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

BURTON, CELTNIEKS, and HAGLER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant ERIC A. SPITALE 

United States Army, Appellant 

ARMY 20170128 

Headquarters, 21st Theater Sustainment Command 

David H. Robertson, Military Judge 

Colonel Paula I. Schasberger, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Michael P. Baileys, Acting Staff Judge Advocate (post-trial) 

Colonel John S. Frost, Staff Judge Advocate (new addendum) 

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. 

Simpson, JA; Captain Heather M. Martin, JA (on brief and reply brief). 

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, 

JA; Major Michael E. Korte, JA (on brief). 

16 August 2018 

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SUMMARY DISPOSITION ON FURTHER REVIEW 

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HAGLER, Judge: 

We return this case to The Judge Advocate General for a new action by the 

same or a different convening authority, as specified in our decretal paragraph. 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of failing to obey a lawful general regulation and making a 

false official statement, in violation of Articles 92 and 107, Uniform Code of 

Military Justice, 10 U.S.C. §§ 892, 907 (2012) [UCMJ]. Contrary to his pleas, 

appellant was found guilty of indecent conduct in violation of Article 134, UCMJ, 

but the military judge conditionally dismissed this offense as an unreasonable 

multiplication of charges with the Article 92 offense. The military judge sentenced 

appellant to a bad-conduct discharge, confinement for four months, and reduction to 

the grade of E-3. The convening authority approved the adjudged sentence. 
SPITALE—ARMY 20170128 

2

On 14 February 2018, this court returned the case for a new action by the 

convening authority.1 The former convening authority’s successor approved the 

adjudged sentence. The case is again before us for review under Article 66, UCMJ. 

Appellant now assigns one error: the new convening authority failed to give 

appellant an opportunity to present additional matters under Rule for Courts-Martial 

(R.C.M.) 1105. Appellant asks this court to return the case for a new action and for 

any other appropriate relief.2 

BACKGROUND 

Appellant was a 39-year-old noncommissioned officer stationed in Korea, who 

regularly socialized with a junior soldier he directly supervised, Specialist (SPC) P. 

Appellant went to bars with him, invited SPC P to his off-post residence, and 

eventually involved SPC P in sexual activities with appellant and appellant’s wife. 

These activities, which appellant recorded on video, gave rise to the charges in this 

case. Appellant pleaded guilty to having a relationship with SPC P prohibited by 

Army Reg. 600-20, Personnel-General: Army Command Policy (18 Mar. 2008) 

(Rapid Action Revision, 20 Sept. 2012) [hereinafter AR 600-20], and to lying to a 

military law enforcement agent when asked whether he had shared the sex videos 

with other people. Appellant pleaded not guilty to indecent conduct by engaging in 

sexual acts in the presence of SPC P, but he was found guilty of this specification by 

the military judge.3

After the case was returned for a new action, the Staff Judge Advocate (SJA) 

prepared a new addendum, noting why the previous action had been set aside and 

specifically mentioning appellant’s request to disapprove the bad-conduct discharge. 

The addendum correctly informed the convening authority that he could disapprove 

the adjudged sentence in whole or in part, mitigate the sentence, or change the 

punishment to one of a different nature, so long as he did not increase the severity. 

 

1 United States v. Spitale, ARMY 20170128, 2018 CCA LEXIS 74 (Army Ct. Crim. 

App. 14 February 2018) (summ. disp.). 

2

 Appellant personally raises several matters pursuant to United States v. Grostefon,

12 M.J. 431 (C.M.A. 1982). In addition to the matters discussed in this opinion, 

appellant claims that government counsel elicited improper sentencing evidence on 

the merits and made improper sentencing argument, assertions we find to be without 

merit. 

3

 After findings and before sentencing, the military judge found this specification to 

be an unreasonable multiplication of charges, as it was wholly encompassed by the 

conduct alleged in the Article 92 violation. The judge granted a conditional 

dismissal of the specification, to take effect if the Article 92 charge and its 

specification survived appellate review. 
SPITALE—ARMY 20170128 

3

The list of enclosures to the addendum included the record of trial, the Report 

of Result of Trial, appellant’s clemency matters, and this court’s opinion setting 

aside the previous action. The convening authority’s new action memorandum 

contains a list of items he considered, to include the addendum enclosures and an 

itemized listing of appellant’s clemency matters, which were the same as those he 

submitted previously. The government did not give appellant an opportunity to 

modify his previous submissions or to present additional clemency matters. 

LAW AND DISCUSSION 

The Court of Appeals for the Armed Forces (CAAF) has explained that a 

convening authority “is not limited to considering the circumstances as they existed 

at the time of the initial review. The convening authority may consider other 

appropriate matters—including changes in circumstances following the initial action 

on the case—for purposes of determining whether clemency or other post-trial action 

is warranted.” United States v. Rosenthal, 62 M.J. 261, 262-63 (C.A.A.F. 2005). 

The CAAF has similarly held, “[a] new, as opposed to a corrected, action requires a 

new [Staff Judge Advocate’s Recommendation (SJAR)] under R.C.M. 1106 and the 

opportunity for the accused to submit additional matters under R.C.M. 1105.” 

United States v. Mendoza, 67 M.J. 53, 55 (C.A.A.F. 2008).4

 

While both parties agree that the government’s failure to give appellant this 

opportunity was error, we must still determine whether appellant suffered prejudice. 

See, e.g., United States v. Wheelus, 49 M.J. 283, 288-89 (C.A.A.F. 1998). In this 

context, “[b]ecause clemency is such a highly discretionary Executive function, 

there is material prejudice to the substantial rights of an appellant if there is an error 

and the appellant ‘makes some colorable showing of possible prejudice.’” Id. at 289 

(citing United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)). 

Here, the government argues appellant suffered no prejudice, because the 

convening authority considered all the matters appellant previously submitted for 

clemency. Appellant counters that his Grostefon matters satisfy the low standard of 

prejudice, as he could have raised these issues to the convening authority as part of 

submitting additional matters. Based on the specific facts of this case, we agree 

with appellant. 

For example, as part of his Grostefon matters, appellant raises the issue of 

post-trial delay between sentencing and the new post-trial processing. As another 

example, appellant highlights a series of issues with the Report of Result of Trial, 

 

4

 Perhaps the Staff Judge Advocate was misled by the by the fact that in returning 

the case for a new action, this court did not specify that appellant must have an 

opportunity to submit matters, consistent with Mendoza. If so, we regret the 

misunderstanding and offer more specific direction in our decretal paragraph. 
SPITALE—ARMY 20170128 

4

which does not fully and accurately capture his pleas and the findings.5 First, it does 

not reflect language excepted from the false official statement specification, 

consistent with appellant’s pretrial agreement and his final pleas. Second, it does 

not show that the dates of the indecent conduct and prohibited relationship 

specifications were amended before appellant entered his final pleas, thereby 

reducing the time period for those offenses. Finally, it does not mention the 

conditional dismissal of the indecent conduct specification. 

In our previous decision in this case, we declined to speculate on what the 

convening authority might have done if he had not misunderstood his clemency 

powers. While any conclusion on prejudice during the clemency process involves 

some degree of conjecture, as this case now stands, we find ourselves on firmer 

footing. The SJA properly advised the new convening authority of his clemency 

powers, and after considering everything appellant previously submitted for 

clemency, the convening authority approved the adjudged sentence. At the same 

time, appellant was denied his right to submit new matters to the convening 

authority, and we have before us additional claims the convening authority might 

have considered. Under the specific facts of this case, we narrowly conclude that 

appellant has presented “some colorable showing of possible prejudice.” Chatman, 

46 M.J. at 323-24.6

 

5

 This issue was not raised in appellant’s initial post-trial submissions. If a defense 

counsel fails to comment on the SJAR and its attachments in a timely manner, the 

error is waived absent plain error. R.C.M. 1106(f)(6); United States v. Scalo, 60 

M.J. 435, 436 (C.A.A.F. 2005). However, since we returned this case for a new 

action, appellant could have raised these errors with the Report of Result of Trial 

when submitting additional matters to the convening authority. On this point, we 

note that appellant raised these errors in his previous and current Grostefon

submissions to this court. 

6

 Appellant also claims several documents are missing from the record of trial. 

First, appellant highlights a missing page of an evaluation from his “good soldier” 

book admitted at trial. Although the evaluations were not in chronological order, we 

located the errant page in the exhibit. Second, appellant asserts missing enclosures 

from a record of non-judicial punishment admitted as a prosecution sentencing 

exhibit. We find these witness statements were removed from the exhibit after 

defense counsel objected to them at trial. Finally, appellant alleges items are 

missing from the post-trial record, to wit: several enclosures to his “Request for 

Deferral and Waiver of Automatic Forfeitures and Reduction in Rank,” dated 8 

March 2017. 
SPITALE—ARMY 20170128 

5

CONCLUSION 

The convening authority’s action, dated 12 March 2018, is SET ASIDE. The 

record of trial will be returned to the Judge Advocate General for a new SJAR, 

submission of new matters under R.C.M. 1105 and 1106, and a new action by the 

same or a different convening authority in accordance with Article 60(c)-(e), UCMJ. 

The government should correct any identified defects in the Report of Result 

of Trial and ensure any omitted items from the record of trial are available to the 

convening authority to consider in taking action. 

Senior Judge BURTON and Judge CELTNIEKS concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: