## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class RONALD K. MCELHOSE United States Army, Appellant

ARMY 20140760

Headquarters, Fort Carson Douglas K. Watkin s, Military Judge
Colonel Paul J. Pe rrone, Jr., Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Scott A. Martin, JA (o n brief); Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather L. Tregle, JA; Captain Scot t A. Martin, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on brief).

8 April 2016

---------------------------------- MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

A military judge, sitting as a special court-martia l, convicted appellant, consistent with his pleas, of four specifi cations of absence wit hout leave terminated by apprehension, in violation of Article 86, Uniform Code of Military Justice, 10 U.S.C § 886 (2012) [hereinafter UCMJ]. Th e military judge sent enced appellant to a bad-conduct discharge and ninety-six da ys confinement and credited him with ninety-six days of pretrial confinement credit. The convening author ity approved the adjudged sentence a nd ninety-six days of confinement credit.

Appellant’s case is now be fore us for review pursua nt to Article 66, UCMJ. Appellant raises two assignments of erro r, both of which meri t discussion but no
relief.MCELHOSE – ARMY 20140760

2 BACKGROUND

While home on mid-tour leav e from his deployment to Iraq, appellant’s wife
informed him she wanted a divorce. As a result, on 7 September 2008, appellant went absent without leave (AWOL) and did not redeploy to Iraq as scheduled. A week after being AWOL, appellant contacted his unit rear detach ment at Fort Hood
to inform them of his wher eabouts but went AWOL again shortly thereafter on or about 19 September 2008. Ap pellant was arrested on a desertion warrant over two years later on 4 November 2010 and retu rned to military control.

On 10 May 2011, while stationed at Fo rt Carson, Colorado appellant went
AWOL a second time. * On 28 October 2011, appellan t was stopped by police for a
traffic violation and arrested on a desertion warrant. Appellant was ag ain returned to military control.

While at Fort Carson fo r only a few days, appellan t went AWOL a third time
on 1 November 2011. On 27 July 2013, appe llant was arrested on a desertion warrant after being involved in a traffic accident wherein his wife sustained serious injuries. Appellant was once agai n returned to mi litary control.

After being evicted from his home, appe llant went AWOL for a fourth time on 23 October 2013. On 1 Augu st 2014, after a traffic stop and license check in Baytown, Texas, appellant was arrested a fourth time pursua nt to a desertion
warrant. Once under militar y control again, appellant was placed in pretrial
confinement.

Combining appellant’s periods of AWOL , he was absent for approximately four and a half years.

Findings Adjudged by the Court-Martial

Appellant was initially ch arged with four specifi cations of desertion but pleaded guilty to four spec ifications of AWOL termin ated by apprehension. Appellant’s pleading at trial was consistent with the lang uage contained in his offer to plead guilty – with one exception.

At trial, before th e military judge sentenced a ppellant, the military judge reopened the providence inquiry when he determined the location of the first AWOL listed on the charge sheet, Specificatio n 1 of The Charge, was inaccurate. The military judge conclu ded appellant was AWOL from his unit in Iraq, not a unit at Fort Hood, Texas. After some discussion between the military judge and appellant’s defense counsel, appellant waiv ed his right to wi thdraw from the pretrial agreement

* Appellant’s unit was moved from Fort Hood, Texas to Fort Carson, Colorado.MCELHOSE – ARMY 20140760

3 and continued to plead guilt y substituting “Iraq” for “Fort Hood, Texas” on the charge sheet.

The military judge re-announ ced the finding for Specif ication 1 of The Charge incorporating the text of the charge and the under lying specification with the
substitutions to which a ppellant pleaded guilty.

Convening Authority Action

In the staff judge advocate post-trial recommendation (hereinafter SJAR), the Staff Judge Advocate (herei nafter SJA) provided the convening authority the general findings by the military judge. The SJAR and addendum di d not themselves contain the actual language of Th e Charge and its specificat ions, but incorporated by
reference the results of tria l and appellant’s offer to pl ead (hereinafter OTP) guilty.

In this case, the Dep’t of Defense Form 2707-1, Re port of Result of Trial (Mar. 2013) (DD Form 2707-1) however, reflects a shorthan d version of The Charge and its specifications, and the findings - indicating only that appellant was found guilty of four specificati ons of being absent with out leave terminated by apprehension. The resu lts of trial also incorporate by reference the OTP. The OTP
also does not contain the ac tual language of The Char ge and Specifications as reflected on the charge sh eet and promulgation order but rather reflects the exceptions and substitutions to which appellant agreed to plead guilty.

Additionally, the SJAR and addendum do not attach as an enclosure the charge sheet or the record of trial itself. As a result, such specifi cs as the length of each AWOL, the unit of each AWOL, and the military judge’ s substitution of “Iraq” for “Fort Hood, Texas” in Specification 1 of The Charge, are not contained in the
SJAR or the addendum.

The convening authority, in accordance with the SJA’s advice, approved the sentence as adjudged – a bad-conduct disc harge and nine ty-six days confinement – in other words, a bad-conduct discharg e and time served.

DISCUSSION

Ambiguity between Adjudged and Appr oved Findings

Appellant asserts on appeal th at the report of result of trial in appellant’s case incorrectly reflects the adjudged findings of which appellant wa s convicted, and as a result, the convening author ity did not properly approve the findings. Appellant argues that this court now lacks jurisdiction to act and asks us to return the record of trial to the convening authority for a new SJ AR and action. We decline to do so.MCELHOSE – ARMY 20140760

4 When a court-martial is adjourned following announ cement of the sentence, the findings and sentence are reported promptly to the convening authority. See UCMJ art. 60(a). The trial co unsel prepares the report of the findin gs and sentence, which must be submitted in writing. Id ; Rule for Courts-Mar tial [hereinafter R.C.M.] 1101(a). Neither the UCMJ nor the Manual for Courts-Martial, United States (2012 ed.), offers an y guidance as to the amount of detail that should be provided regarding the findings.

The convening authority mu st consider “[t]he reco mmendation of the staff judge advocate or legal officer under R.C.M. 1106. . . .” R.C.M. 1107(b)(3)(A)(i). The SJA’s advice is legally required to cont ain information as to the findings and sentence adjudged by the co urt-martial. R.C.M. 1106(d )(3). The SJAR may provide the convening authority with “concise in formation” about th e findings, “without specifying exactly what acts the appellant wa s found guilty of or what language was excepted or substituted.” United States v. Gunkle , 55 M.J. 26, 33 (C.A.A.F. 2001) (citation and quotation mark s omitted). Although disa pproval of th e findings requires express acti on by the convening au thority, the convening authority is not required to take express action to approve the findings. See UCMJ art. 60(c)(3); R.C.M. 1107(f). In that contex t, the SJA's description of a finding is sufficient if it provides a general depiction of the offense, without the necessity for reciting the exact specifications.

In the present case, the de scription provided in th e SJAR was sufficient.
While we hold the SJA’s actio ns satisfactory under these circumstances so as to comport with Article 60(c)(3 ), UCMJ, a more precise st atement of Th e Charge and its specifications in the pos t-trial matters would have avoided this issue altogether.

The Report of Result of Trial correctly reflects th at appellant was convicted of four specifications of absence without leave terminat ed by appreh ension. The convening authority’s action approving the sentence implicitly a pproved the findings
as reflected in the result of trial and incorporated by re ference the offer to plead. See generally Unite d States v. Diaz , 40 M.J. 335 (C.M.A. 1994). While not specifically attached as an enclosure or stated specifically, the OTP presumably incorporates the charge sheet by refe rence – otherwise th e OTP standing alone
makes no sense.

If the list of findings in the SJAR om its any reference to a particular finding,

see R.C.M. 1106(d)(3), this court may not presume that the c onvening authority implicitly approved or disapproved the omitted finding. Diaz , 40 M.J. at 343. That
did not occur in this case . The government correctly summarized the original charge, the pleas of appell ant, the court’s findings, and appellant’s adjudged sentence. Lastly, the promul gating order substantially reflects the findings of appellant’s court-martial.MCELHOSE – ARMY 20140760

5 Forfeiture

Even if we were to assu me appellant’s findings of guilt were not properly approved by the convening au thority as appellan t contends, appellant has forfeited this matter by not raising it in his post-trial matters.

The SJA served the SJAR on the defense prior to submission to the convening authority. R.C.M. 1106(f) (1). The defense had the opportunity to provide the convening authority with comments on the recommendation, as well as other matters. UCMJ art. 60(b); R. C.M. 1105; R.C.M. 1106(f). Consistent with the forfeiture provisions of Ar ticle 60(d), UCMJ, R.C.M. 1106(f)(6) provides that “[f]ailure of counsel for the accused to comment on any matter in the [SJAR] or
attached to the recomm endation in a timely matter shal l [forfeit] later claim of error with regard to such matter in the absence of plain error.” See United States v.

Green , 37 M.J. 380, 385 (C.M.A. 19 93) (failure to ob ject to racial id entifiers in the SJAR was forfeited absent plain error); see also United States v. Drayton , 40 M.J. 447 (C.M.A. 1994); United States v. Wright , ARMY 20010343, 2002 LEXIS 434 (Army Ct. Crim. App. 14 Jan. 2002) (mem. op.) (testing for plain error when a convening authority was mistakenly inform ed that the accuse d’s AWOL conviction was terminated by apprehension).

“Under a plain error analysis, [an appe llant] has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substa ntial right of the accused.” United States v. Payne , 73 M.J. 19, 23 (C.A.A.F. 2014 ) (internal quotation mark s and citations omitted).

Even if we assume plain an d obvious error, an error in a post-trial SJAR to the convening authority does not re sult in an automatic return by an appellate court of the case to the convening authority. United States v. Green , 44 M.J. 93, 95 (C.A.A.F. 1996). We must, in stead, determine if the erro r materially prejudiced a substantial right of appellant. Because bei ng AWOL from Iraq - a combat zone - is a
more serious offense than be ing AWOL from Fort Hood, Te xas, this omission in the SJAR predictably would not inure to appell ant’s detriment. Similarly, the absence of the length of each AWOL - totaling four and a half ye ars – in all likelihood did not disadvantage appellant. Under these fa cts, appellant has not demonstrated so
much as some colorable showing of possible prejudice affecting hi s opportunity for clemency . Kho, 54 M.J. at 65 (quoting United States v. Wheelus , 49 M.J. 283, 289 (C.A.A.F. 1998)). We do not believe it is reasonably possible that inclusion of specifics would have influenced the conven ing authority to act any differently. We
thus find no material prejudice to a substant ial right of appellant

.MCELHOSE – ARMY 20140760

6 CONCLUSION

The findings of guilty and sentence are AFFIRMED.

Senior Judge TOZZI and Judge CELTNIE KS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: