UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

LIND, KRAUSS, and PENLAND

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist MICHAEL A. HOSS

United States Army, Appellant

ARMY 20120086

Headquarters, III Corps and Fort Hood (convened)

Headquarters, Fort Hood (action)

James L. Varley, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate (pretrial;

recommendation; first addendum)

Colonel Richard W. Rousseau, Staff Judge Advocate (second addendum)

For Appellant: Colonel Kevin Boyle, JA; Captain Sara E. Lampro, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain 

Timothy C. Donahue, JA (on brief). 

19 December 2014

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SUMMARY DISPOSITION

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LIND, Senior Judge:

A panel of officer and enlisted members sitting as a general court-martial 

convicted appellant, contrary to his pleas, of one specification of violating a lawful 

general order, one specification of aggravated assault with a dangerous weapon, one 

specification of reckless endangerment, and one specification of negligent discharge 

of a firearm in violation of Articles 92, 128, and 134, Uniform Code of Military 

Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 928, 934 (2006). The panel 

sentenced appellant to a bad-conduct discharge, confinement for six months, 

forfeiture of all pay and allowances, and reduction to the grade of E-1. The 

convening authority approved only five months of confinement and the remainder of 

the sentence as adjudged.

This case is before the court for review pursuant to Article 66, UCMJ.
HOSS—ARMY 20120086

2

Unreasonable Multiplication of Charges

Appellant’s sole assignment of error alleges that Specification 1 of Charge II 

(reckless endangerment by chambering a round in a firearm, pointing the firearm at 

another soldier, and squeezing the trigger), Specification 2 of Charge II (negligent 

discharge of a firearm), and the Specification of Charge III (violation of a lawful 

general order by wrongfully chambering a round in a firearm) constitute an 

unreasonable multiplication of charges for findings with the Specification of 

Charge I (aggravated assault with a loaded firearm). Appellant asks that we dismiss 

Specifications 1 and 2 of Charge II and the Specification of Charge III. The 

government concedes only that both specifications of Charge II (reckless 

endangerment and negligent discharge of a firearm) are an unrea sonable 

multiplication of charges for findings with the Specification of Charge I (aggravated 

assault with a loaded firearm) and joins appellant in asking that we dismiss the 

specifications of Charge II. The government does not concede that the Specification 

of Charge III (violation of a lawful general order by wrongfully chambering a round 

in a firearm) is an unreasonable multiplication of charges for findings with the 

Specification of Charge I (aggravated assault with a loaded firearm). 

All three charges arose from a single incident in which appellant chambered a 

round in his M-9 pistol, pointed the pistol at a fellow soldier’s chest, and negligently 

discharged a single round. The round struck the soldier’s chest and resulted in the 

soldier’s paralysis from the chest down. Under the facts of this case, we accept the 

government’s concession and will grant relief in our decretal paragraph by setting 

aside and dismissing Specifications 1 and 2 of Charge II. See United States v. 

Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001); Rule for Courts-Martial [hereinafter 

R.C.M.] 307(c)(4).

1

 We also note that pursuant to our superior court’s recent 

jurisprudence, “when a ‘panel return[s] guilty findings for both specifications and it 

was agreed that these specifications were charged for exigencies of proof, it [is] 

incumbent’ either to consolidate or dismiss a specification. ” United States v. 

Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014) (quoting United States v. Mayberry, 

72 M.J. 467, 467-68 (C.A.A.F. 2013) (summ. disp.)). In this case, the military judge

asked whether the government was “essentially charging [the Specification of 

Charge I and both specifications of Charge II] under alternative theories,” and trial 

counsel answered in the affirmative.

Contrary to appellant’s assertion, we do not find the charge of violating a

lawful general order is an unreasonable multiplication of charges for findings with 

the remaining aggravated assault charge. Each offense is aimed at a distinct 

 

1

The military judge merged all of the offenses for sentencing. Applying the 

reassessment principles of United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), we 

are confident the panel would have adjudged a sentence at least as severe as the 

approved sentence.
HOSS—ARMY 20120086

3

criminal interest: the gravamen of the aggravated assault is the bodily harm actually 

inflicted upon the soldier that was caused by the negligent firing of a loaded firearm; 

the gravamen of the violation of a lawful general order for wrongfully chambering a 

round is the blatant disregard of an order issued by the area commander for the 

purposes of good order, discipline, and safety. 

Post-trial Delay

Appellant also personally raises additional matters pursuant to United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which merits discussion, but no 

relief. Appellant personally complains of excessive delay during the post-trial 

processing of his case and requests relief in the form of confinement credit.

Appellant was sentenced on 27 January 2012. The record of trial was 

1,049 pages in length. On 8 April 2013, 437 days after completion of appellant’s 

trial, defense counsel first received the record for review and promptly completed 

his errata within 7 days. The military judge received the record of trial 22 days later 

and completed authentication of the record within 16 days on 23 May 2013. The 

staff judge advocate’s recommendation was prepared 47 days later on 9 July 2013. 

The post-trial recommendation was served on appellant on 16 July 2013. Appellant 

submitted his R.C.M. 1105 matters 20 days later on 5 August 2013. In his post-trial 

matters, appellant complained that his due process right to speedy post-trial review 

was violated. The first addendum was prepared 23 days later on 28 August 2013, 

and the staff judge advocate advised the convening authority that “because of the 

lengthy delay between time of trial and time of Action, I recommend you grant 

clemency” by reducing appellant’s sentence to confinement by one month.2 The first 

addendum, which contained new matter, was served on appellant on 11 September 

2013. Five days later on 16 September 2013, appellant submitted a memorandum in 

response to the addendum. On 20 September 2013, the staff judge advocate prepared

a second addendum, again recommending that appellant receive one month of 

clemency. The same day, the convening authority adopted the recommendation and 

took action in appellant’s case. The record of trial was received at this court on 

25 October 2013.

We review claims that an appellant has been denied his due process right to a 

speedy post-trial review de novo. United States v. Moreno, 63 M.J. 129, 135 

(C.A.A.F. 2006). Our superior court has adopted the four factor test of Barker v. 

Wingo, 407 U.S. 514, 530 (1972) to determine whether a due process violation has 

occurred: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant's 

assertion of the right to timely review and appeal; and (4) prejudice. Id. 

There is a presumption of unreasonable delay when more than 120 days have 

elapsed between completion of an appellant’s trial and action by the convening 

 

2 Appellant had already served his six-month sentence to confinement.
HOSS—ARMY 20120086

4

authority. Id. at 142. A similar presumption is applied where the record of trial is 

not received by the service court of criminal appeals within 30 days of convening 

authority action. Id. These presumptions trigger analysis of the remaining three 

factors. Id. In this case, the total post-trial processing time from sentence to action 

was 602 days and the record of trial was docketed with this court 35 days after 

action. The government did not provide either a contemporaneous explanation or an 

explanation on appeal for the delay. The only explanation we can find for any 

portion of the delay in the record is a memorandum for record written by the military 

judge explaining the minimal delay of 16 days to authenticate the 1,049-page record. 

Given the government’s lack of explanation or justification for the total delay, t he 

second factor weighs in appellant’s favor. Turning to the third factor, while 

appellant complained of the unreasonable post-trial processing in his case, he waited 

to do so until he submitted his R.C.M. 1105 matters, 556 days after completion of 

the trial. This was the first time that appellant made any assertion of his right to 

speedy post-trial review. The untimely demand weighs slightly against appellant. 

See id. at 138; see also United States v. Canchola, 64 M.J. 245, 246 (C.A.A.F. 2007) 

(per curiam). While appellant asserted prejudice in his R.C.M. 1105 matters, he 

does not renew his claim of prejudice on appeal. Upon review of the record, we find 

no prejudice to appellant. Under Moreno, we hold appellant’s due process right to 

speedy post-trial review was not violated.

However, even when there is no showing of prejudice, we may nonetheless 

find a due process violation if “in balancing the other three factors, the delay is so 

egregious that tolerating it would adversely affect the public’s perception of the 

fairness and integrity of the military justice system.” United States v. Toohey, 

63 M.J. 353, 362 (C.A.A.F. 2006). Having considered the lengthy delay, the lack of 

any explanation by the government, and appellant’s less than timely assertion of his 

right to speedy post-trial review, we hold that the post-trial delay in this case is not 

so egregious as to find a due-process violation under Toohey.

3

Finally, we must also review the appropriateness of appellant’s sentence in 

light of the lengthy post-trial processing. See UCMJ art. 66(c); United States v. 

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, 

 

3

Even assuming a due process violation under Toohey, we would find the error 

harmless beyond a reasonable doubt. See United States v. Arriaga, 70 M.J. 51, 56 

(C.A.A.F. 2011) (citing United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006)). 

The convening authority, upon staff judge advocate advice, granted appellant one -

month relief for dilatory post-trial processing. Appellant requests this court to 

afford additional confinement credit. We find that further relief is not warranted. 

See United States v. Rodriguez-Rivera, 63 M.J. 372, 386 (C.A.A.F. 2006) (even 

assuming a due process violation for post-trial delay, “to fashion relief that would be 

actual and meaningful in this case would be disproportionate to the possible harm 

generated from the delay. Accordingly, we conclude that no additional relief is 

appropriate or warranted in this case.”).
HOSS—ARMY 20120086

5

service courts are] required to determine what findings and sentence ‘should be 

approved,’ based on all the facts and circumstances reflected in the record, including 

the unexplained and unreasonable post-trial delay.”). Upon review of the entire 

record, to include, inter alia, the lengthy post-trial delay, the lack of any 

documented explanation or justification by the government for the delay, the lack of 

timely demand for speedy trial by appellant, the clemency of one-month confinement 

credit granted by the convening authority, the nature and seriousness of appellant’s 

offenses, the dismissal of Specifications 1 and 2 of Charge II, and the resulting 

reassessed sentence, we find appellant’s reassessed sentence is appropriate. See 

United States v. Garman, 59 M.J. 677, 683 (Army Ct. Crim. App. 2003) (holding 

that the post-trial delay “was not so egregious under the totality of the circumstances 

as to render appellant’s otherwise appropriate sentence inappropriate.”).

CONCLUSION

The findings of guilty of Charge II and its specifications are set aside and 

dismissed. The remaining findings of guilty are AFFIRMED. Reassessing the 

sentence on the basis of the errors noted, the entire record, and in accordance with 

the principles of Winckelmann, 73 M.J. at 15-16 and Sales, 22 M.J. at 307-08, we are 

confident the panel would have adjudged a sentence at least as severe as the 

approved sentence. We find this reassessed sentence is appropriate. See UCMJ art. 

66(c). The sentence is AFFIRMED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision, are ordered restored.

Judge KRAUSS and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR. 

Clerk of Court

FOR THE COURT: