UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

YOB, LIND, and KRAUSS

Appellate Military Judges

UNITED STATES, Appellee

v.

Private First Class SAMIR ZUBAIR

United States Army, Appellant

ARMY 20110433

Headquarters, 82d Airborne Division

Patrick Parrish, Military Judge (motions hearing)

Karin Tackaberry, Military Judge (arraignment and trial)

Colonel Lorianne Campanella, Staff Judge Advocate

For Appellant: Major Richard Gorini, JA; Captain Susrut A. Carpenter, JA (on 

brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad Fisher, JA; 

Captain Kenneth Borgnino, JA (on brief). 

31 December 2013

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

LIND, Judge:

A general court-martial composed of officer members convicted appellant, 

contrary to his pleas, of two specifications of attempted distribution of hashish; one 

specification of making a false official statement; one specification of distribution of 

hashish on divers occasions; and one specification of use of hashish on divers 

occasions, in violation of Articles 80, 107, and 112a, Uniform Code of Military 

Justice, 10 U.S.C. §§ 880, 907, 912a (2006) [hereinafter UCMJ]. The panel 

sentenced appellant to a bad-conduct discharge, confinement for three years, 

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

convening authority approved the adjudged sentence. 

 

This case is before the court for review under Article 66, UCMJ. Appellant 

alleges, and the government concedes, that: the military judge abused his discretion 

by denying the defense’s motion to suppress appellant’s confession , and 
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2

consequently, the false official statement findings of guilty should be set aside ; that 

the evidence was factually and legally insufficient to support the findings of guilty

of the two specifications of attempted distribution of hashish; that the staff judge 

advocate failed to comment on legal errors raised in appellant’s post-trial matters; 

and that the excessive post-trial delay in this case warrants relief under United 

States v. Collazo, 53 M.J. 721 (Army Ct. Crim. App. 2000). We accept the 

government’s concessions and will grant relief in our decretal paragraph. We have 

also considered those matters personally raised by appellant pursuant t o United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find that they lack merit. 

FACTS

In early April 2010, appellant’s first sergeant (1SG), 1SG MH, reassigned 

appellant from Camp Stone, Afghanistan to Combat Outpost (COP) Ricketts, 

Afghanistan. Prior to appellant’s arrival at COP Ricketts, a number of soldiers 

bought hashish from local nationals in the Afghan National Army and Afghan 

National Police (ANA/ANP). The soldiers at COP Ricketts used and distributed the 

hashish among themselves. Appellant spoke Dari and Pashto and performed duties 

as an interpreter. While assigned to COP Ricketts, appellant bought hashish from 

ANA/ANP local nationals, and on divers occasions, appellant both used the hashish 

with other soldiers and distributed the hashish to other soldiers. Appellant’s unit at 

Camp Ricketts suspected appellant of drug offenses, and on or about 21 June 2010 

transferred appellant back to Camp Stone. 

LAW AND DISCUSSION

I. Military Judge’s Denial of Motion to Suppress Appellant’s Statement

A. Background

Upon appellant’s arrival at Camp Stone from COP Ricketts on or about 

21 June 2010, appellant was summoned to 1SG MH’s office. Several other noncommissioned officers were present. First sergeant MH asked appellant, “what’s 

going on?” When appellant did not respond, 1SG MH left the room, called 

appellant’s first sergeant from COP Ricketts, and learned that appellant was returned 

to Camp Stone because he had been identified at COP Ricketts as having used 

hashish. First Sergeant MH became “angry” and “upset,” returned to his office, and 

without advising appellant of his Article 31(b), UCMJ, rights, asked appellant: 

“Why would you do something like this?” or words to that effect. First sergeant MH 

spoke to appellant for approximately fifteen to twenty minutes, telling appellant, 

among other things, that he was “personally upset [appellant] had done this.” 

Appellant “began to show obvious signs of stress,” including “tearing up a little bit.” 

At that point, 1SG MH and another non-commissioned officer both asked appellant: 
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3

“what’s going on?” Appellant eventually stated “there was drug use going on” and 

that appellant had “smoked hashish.” 

First sergeant MH stopped questioning appellant and went to the unit’s legal 

advisor for advice as to how to proceed. They decided to have Captain (CPT) JF 

advise appellant of his Article 31(b), UCMJ, rights and take a sworn statemen t from 

appellant. Appellant was escorted by a non-commissioned officer to this meeeting 

with CPT JF. Captain JF advised appellant of his Article 31(b), UCMJ, rights, but 

did not administer a cleansing statement. Appellant waived his Article 31(b), 

UCMJ, rights and denied involvement in any use or distribution of hashish at COP 

Ricketts. This meeting lasted approximately ten to fifteen minutes. 

After 1SG MH learned appellant had denied any wrongdoing in his statement 

to CPT JF, appellant was escorted back to 1SG MH’s office. First Sergeant MH was 

“angry,” “upset,” and “disappointed” because appellant was “lying to somebody.” 

Once again, in the presence of other non-commissioned officers, and without reading 

appellant his Article 31(b), UCMJ, rights, 1SG MH asked appellant: “why are you 

doing this?” and “why are you lying?” First sergeant MH informed appellant that 

the soldiers at COP Ricketts who are using hashish are also “guarding the firebase,” 

and that if appellant did not tell the truth, “somebody is going to get killed.” First 

sergeant MH then told appellant, “you need to go in [t]here and you need to tell the 

truth.” Appellant began crying and shaking his head, stating, “no, no, no.” First 

sergeant MH repeatedly urged appellant “to tell the truth.” The meeting with 1SG 

MH concluded when 1SG MH ordered appellant to “go back to [CPT JF].” This 

second meeting with 1SG MH lasted approximately thirty minutes. A non -

commissioned officer escorted appellant back to the building where he had 

previously met with CPT JF. 

Shortly thereafter, CPT JF returned to the same building in order to ask 

appellant whether he would consent to a urinalysis. Appellant consented to the 

urinalysis. Captain JF also decided to ask appellant whether he wished to gi ve 

another statement. Appellant told CPT JF that he wanted to give another statement 

because he “want[ed] to get something off [his] chest.” Captain JF then reminded 

appellant of his right to counsel (although not to silence), and appellant made the 

statement in Prosecution Exhibit 3: “I did not give hashish to anyone to include 

American Soldiers,” which is the basis for the sole false official statement 

specification of Charge II. Appellant also admitted in the statement that he “smoked 

[hashish]” on one occasion in either April or June 2010. This second meeting with 

CPT JF lasted at most thirty minutes.

At trial, defense filed a pretrial motion to suppress Prosecution Exhibit 3. 

During the Article 39(a), UCMJ, hearing, both 1SG MH and CPT JF testified to the 

facts outlined above. The military judge concluded appellant’s statement was 
ZUBAIR—ARMY 20110433

4

voluntary, and denied the motion to suppress. At trial, the government entered 

Prosecution Exhibit 3 into evidence.

B. Law and Analysis

Appellant contends the military judge abused his discretion by denying the

motion to suppress his second statement to CPT JF. Appellant argues the military 

judge erred when he ruled that appellant’s statement to CPT JF was voluntary; that 

the statement should therefore not have been admissible at trial; and that the false 

official statement conviction (Charge II and its specification) should be overturned 

because appellant’s involuntary statement was the sole basis for the false official 

statement charged. The government concedes that at trial, the government did not 

prove by a preponderance of the evidence that appellant’s statement was voluntary. 

The government also concedes that Charge II and its specification should be set 

aside and dismissed.

“We review a military judge’s ruling on a motion to suppress for abuse of 

discretion.” United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004) (citing 

United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000)). “In reviewing a 

military judge’s ruling on a motion to suppress, we review factfinding under the 

clearly-erroneous standard and conclusions of law under the de novo standard.” 

United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus on a mixed 

question of law and fact . . . a military judge abuses his discretion if his findings of 

fact are clearly erroneous or his conclusions of law are incorrect.” Id.

Our superior court has looked at the Supreme Court’s decision in Oregon v. 

Elstad, 470 U.S. 298 (1985), “for guidance on evaluating the admissibility of a 

confession obtained subsequent to one that is deemed illegally obtained.” United 

States v. Brisbane, 63 M.J. 106, 114 (C.A.A.F. 2006). 

[W]here the earlier confession was “involuntary” only 

because the suspect had not been properly warned of his 

panoply of rights to silence and to counsel, the 

voluntariness of the second confession is determined by 

the totality of the circumstances. The earlier, unwarned 

statement is a factor in this total picture, but it does not 

presumptively taint the subsequent confession.

Brisbane, 63 M.J. at 114 (quoting United States v. Cuento, 60 M.J. 106, 109 

(C.A.A.F. 2004)). The additional factors considered in a voluntariness analysis are 

found in the Supreme Court’s decision in Schneckloth v. Bustamonte, 412 U.S. 218

(1973): 
ZUBAIR—ARMY 20110433

5

In determining whether a defendant’s will was overborne 

in a particular case, the Court has assessed the totality of 

all the surrounding circumstances—both the 

characteristics of the accused and the details of the 

interrogation. Some of the factors taken into account have 

included the youth of the accused, his lack of education, 

or his low intelligence, the lack of any advice to the 

accused of his constitutional right, the length of detention, 

the repeated and prolonged nature of the questioning, and 

the use of physical punishment such as the deprivation of 

food or sleep.

Brisbane, 63 M.J. at 114 (quoting Schneckloth, 412 U.S. at 226 (citations omitted)).

On the facts before us, we agree with the parties that the military judge

abused his discretion when he concluded appellant’s second statement to CPT JF was 

voluntary. After 1SG MH found out appellant had denied any wrongdoing, 1SG MH 

had appellant escorted back to his office. First sergeant MH then accused appellant 

of lying to CPT JF and repeatedly told appellant in an angry tone of voice that he 

had to “go in [t]here and . . . tell the truth.” While an “admonishment to tell the 

truth does not ordinarily render a subsequent statement inadmissible,” 1SG MH went 

past merely exhorting appellant to tell the truth when he also ordered appellant to 

return to meet with CPT JF. United States v. Morgan, 40 M.J. 389, 394 (C.M.A. 

1994) (citation omitted). Appellant, a private first class, had already confessed to 

drug use to 1SG MH earlier, but never received a cleansing warning. Appellant was 

crying and denying his involvement during this second meeting with 1SG MH. 

Immediately after appellant received the order to “go back to [CPT JF]” from his 

first sergeant, he was escorted by a non-commissioned officer to meet CPT JF. We 

therefore find the military judge abused his discretion when he denied appellant’s 

motion to suppress. We will set aside Charge II and its specification in our decretal 

paragraph.1 

1Neither party suggests that appellant’s conviction for wrongful use of hashish on 

divers occasions (Specification 2 of Charge III) should be set aside because of the 

admission of appellant’s statement. We find the error in admitting appellant’s 

statement was harmless beyond a reasonable doubt with respect to Specification 2 of 

Charge III. See United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing 

Arizona v. Fulminante, 499 U.S. 279, 285 (1991)). “For an error in admitting the 

statement to be harmless beyond a reasonable doubt, this court must be convinced 

that there was no reasonable likelihood that its erroneous admission contributed to 

the verdict.” United States v. Hutchins, 72 M.J. 294, 299 (C.A.A.F. 2013) (citation 

omitted). The evidence of appellant’s use of hashish on divers occasions is 

(continued . . .)
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II. Factual and Legal Sufficiency of Attempted 

Distribution of Hashish to Specialist DP and Private AA

A. Background

The evidence presented at trial showed that on or about 16 June 2010, after 

appellant had been at COP Ricketts approximately two months, appellant asked 

Specialist (SPC) DP and Private (PVT) AA if they wanted hashish. Both SPC DP 

and PVT AA declined. Although there was evidence that appellant had purchased 

hashish from ANA/ANP local nationals regularly since his arrival to COP Ricketts 

in early April 2010, and that he also regularly used hashish with and distributed 

hashish to fellow soldiers, SPC DP and PVT AA testified that appellant did not show 

them hashish when he made the offer. There was also no evidence put on by the 

government that, at the time appellant offered the hashish to the two soldiers, 

appellant had access to hashish.

B. Law & Analysis

Appellant argues his convictions for attempted distribution of hashish 

(Specifications 1 and 2 of Charge I) are factually and legally insufficient. 

In performing our duty under Article 66, UCMJ, we conduct a de novo review 

of legal and factual sufficiency. United States v. Gilchrist, 61 M.J. 785, 793 (Army

Ct. Crim. App. 2005) (citing United States v. Washington, 57 M.J. 394, 399 

(C.A.A.F. 2002)). The test for legal sufficiency is “whether, considering the 

evidence in the light most favorable to the prosecution, a reasonable factfinder could 

have found all the essential elements beyond a reasonable doubt.” United States v. 

Lubasky, 68 M.J. 260, 263 (C.A.A.F. 2010) (citations omitted). The test for factual 

sufficiency is “whether, after weighing the evidence of record and making 

allowances for not having personally observed the witnesses, [this c ourt is] 

convinced of appellant’s guilt beyond a reasonable doubt.” Gilchrist, 61 M.J. at 793 

(citing United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987)).

Article 80, UCMJ, provides that an “act, done with specific intent to commit 

an offense under this chapter,” must amount “to more than mere preparation.” 

(. . . continued)

overwhelming. Four soldiers testified that they smoked hashish with appellant on 

multiple occasions while at COP Ricketts; a fifth soldier testified he smoked hashish 

with appellant on one occasion. Appellant’s statement admitting to use of hashish 

on one occasion added little to the government’s case with respect to this 

specification.
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UCMJ art. 80(a). The conduct must constitute a “substantial step toward 

commission of the crime.” United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987). 

This substantial step has to “unequivocally demonstrate that the crime will take 

place unless interrupted by independent circumstances.” United States v. 

Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011) (citations and internal quotation 

marks omitted). 

The only evidence presented by the government to support the attempted 

distribution charge was that appellant offered to sell hashish to SPC DP and PVT 

AA. We agree with appellant’s argument, and the government’s concession, that 

appellant’s conduct in this case did not amount to more than mere preparation. See 

Byrd, 24 M.J. 286; United States. v. Presto, 24 M.J. 350 (C.M.A. 1987). See 

generally United States v. Jones, 37 M.J. 459, 461 (C.M.A. 1993). Therefore, we

find the evidence is legally and factually insufficient to sustain the findings of guil ty 

of Charge I and its specifications, and we will provide relief in our decretal 

paragraph.

III. Staff Judge Advocate’s Failure to Address Legal Errors

Raised in Appellant’s Rule for Courts-Martial 1105 matters

Appellant argues the staff judge advocate (SJA) failed to comment on the 

following legal errors raised in appellant’s post-trial matters: (1) the military judge 

erred in denying the defense motion to dismiss Specification 1 of Charge I because 

“it was the beginning of the completed distribution of hashish” charged in 

Specification 1 of Charge III; and (2) the military judge erred in denying the defense 

motion to dismiss Specification 2 of Charge I because “the evidence was factually 

insufficient to substantiate a ‘substantial step’ required” for an offense of attempted 

distribution of hashish. Appellant seeks a new staff judge advocate recommendation 

(SJAR) and action. 

The government concedes the SJA failed to identify or address as legal error 

appellant’s submissions regarding dismissal of Specifications 1 and 2 of Charge I. 

Although not raised by appellant, the government further concedes that the SJA 

failed to acknowledge or opine on another legal error raised by appellant in his posttrial matters: disparate sentences between appellant and a co-actor, PVT Teague.2

 

2 Appellant alleged in his post-trial matters that: “Reduction in the sentence is 

equitable because PVT Teague, a much more culpable individual convicted of 

substantially similar crimes, was adjudged a 24 month sentence.” In light of the 

government’s concession, we accept that this amounts to an assertion of legal error 

of sentence disparity under the circumstances of this case.
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The government concurs with appellant that remand to the convening authority for a 

new SJAR and action is appropriate. 

While the SJA acknowledged in the addendum the relief the defense requested 

in the post-trial matters, we agree with the parties that the SJA did not identify or 

offer an opinion on the legal errors raised by appellant as required by Rule for 

Courts-Martial 1106(d)(4). Ordinarily, “failure by the [SJA] to respond to an 

allegation of legal error . . . requires remand to the convening authority for comment 

by the [SJA].” United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988). However, our 

superior court has permitted us to examine the underlying allegation of error, and if 

we find “there is no error in the first instance at trial, [then there is no] prejudicial 

error in the failure of the SJA to respond . . . .” United States v. Welker, 44 M.J. 85, 

88-89 (C.A.A.F. 1996); see also Hill, 27 M.J. at 297 (“[Service courts are] free to 

affirm when a defense allegation of legal error would not foreseeably have led to a 

favorable recommendation by the [SJA] or corrective action by the convening 

authority.”).

We do not agree that a remand to the convening authority is appropriate in 

this case. Applying Welker and Hill, we examine the underlying allegation of errors 

raised by appellant in his post-trial matters. We have already found appellant’s 

allegations that Specifications 1 and 2 of Charge I are factually and legally 

insufficient meritorious. However, the military judge’s merger of Specifications 1 

and 2 of Charge I with Specification 1 of Charge III (distribution of hashish) for 

sentencing and the relief we provide in our decretal paragraph moots any possibility 

of prejudice to appellant by the SJA’s failure to comment on the legal errors.

We now turn to appellant’s allegation of disparate sentencing a s compared to 

PVT Teague. Courts of criminal appeals are required to “engage in sentence 

comparison with specific cases . . . ‘in those rare instances in which sentence 

appropriateness can be fairly determined only by reference to disparate sentences 

adjudged in closely related cases.’” United States v. Lacy, 50 M.J. 286, 288 

(C.A.A.F. 1999) (quoting United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)). 

Appellant bears the burden of proving that: (1) the cases are “closely related;” and 

(2) the sentences are “highly disparate.” Id. If appellant meets both prongs, the 

burden shifts to the government to show a “rational basis” for the disparity. Id. 

Closely related cases include those which pertain to “coactors involved in a common 

crime, servicemembers involved in a common or parallel scheme, or some other 

direct nexus between the servicemembers whose sentences are sought to be 

compared.” Id. Sentence disparity is determined by reference to the adjudged 

sentence in closely related cases. United States v. Roach, 69 M.J. 17, 21 (C.A.A.F. 

2010). “Sentence comparison does not require sentence equation. ” United States v. 

Durant, 55 M.J. 258, 260 (C.A.A.F. 2001) (citations omitted).
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Turning to this case, we take judicial notice of the promulgating order in PVT 

Teague’s trial.3 Both appellant and PVT Teague were convicted of wrongful use and 

distribution of hashish on divers occasions at or near Maqur, Afghanistan during 

similar timeframes4 while receiving special pay under 37 U.S.C. § 310, in violation 

of Article 112a, UCMJ. Private Teague was also convicted of one specification of 

attempted distribution of hashish; two specifications of failure to go to his appointed 

place of duty; one specification of failing to obey a lawful regulation by possessing 

drug paraphernalia; one specification of assault consummated by a battery; one 

specification of obstruction of justice; and one specification of wrongful solicitation 

of another to distribute hashish, in violation of Articles 80, 86, 92, 128, and 134 

UCMJ. Private Teague testified at appellant’s trial that he and appellant were 

coactors involved in a common crime with respect to the use and distribution of 

hashish, thus, appellant has met his burden that the cases are “closely related .” 

In conducting our analysis as to whether appellant has met his burden to show 

that the sentences are “highly disparate,” we recognize that PVT Teague stands 

convicted of additional misconduct while appellant, as a result of our setting aside 

Specifications 1 and 2 of Charge I and the Specification of Charge II, does not. 

Appellant’s adjudged sentence was a bad-conduct discharge, confinement for three 

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

Private Teague’s adjudged sentence was a bad conduct discharge, confinement for 

twenty-seven months, and forfeiture of all pay and allowances. Other than reduction 

in rank, which was not a sentencing option in PVT Teague’s case because he was an 

E-1 at the time of his court-martial, the sentence disparity is nine months of 

confinement. Appellant has failed to meet his burden that the sentences are “highly 

disparate” under the facts of this case. See, e.g., Lacy, 50 M.J. 286. Thus, his claim 

of disparate sentencing in his post-trial matters lacks merit and would not have 

resulted in a favorable recommendation by the SJA or any corrective action by the 

convening authority. 5

3 General Court-Martial Order Number 16, Headquarters, 82d Airborne Division, 

Fort Bragg, North Carolina, dated 11 August 2011, as corrected by United States v. 

Teague, ARMY 20110198 (Army Ct. Crim. App. 22 May 2012) (order).

4 Appellant’s use and distribution of hashish occurred between on or about 1 April 

2010 and on or about 22 June 2010. PVT Teague’s use of hashish occurred between 

on or about 1 February 2010 and 22 June 2010. PVT Teague’s distribution of 

hashish occurred between on or about 1 October 2009 and on or about 22 June 2010.

5 We note the convening authority reviewed appellant’s post-trial matters and was 

given the opportunity to grant appellant clemency based solely on appellant’s 

allegation that: “Reduction in the sentence is equitable because PVT Teague, a much 

(continued . . .)
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IV. Post-Trial Delay

Finally, appellant moves for relief for dilatory post-trial processing. The 

parties agree that, absent defense delay, it took the government 366 days to process 

this 496-page record of trial from announcement of sentence to action. Appellant 

alleges he deserves relief because the excessive post-trial delay violated his dueprocess right to a timely review of his case. Appellant also argues that this court 

should grant relief for the excessive delay under our Article 66, UCMJ, sentence 

appropriateness powers. While the government denies that appellant suffered a due 

process violation, the government concedes that appellant should receive two months 

of sentence credit as a result of the unreasonable and unexplained delay.

 Despite the excessive delay in the processing of appellant’s case, appellant 

fails to demonstrate the prejudice necessary to warrant relief as a matter of law 

under United States v. Moreno, 63 M.J. 129, 138-41 (C.A.A.F. 2006).

Though we find no prejudice as a result of the excessive delay, the court must 

still review the appropriateness of the sentence in light of the unjustified dilatory 

post-trial processing. UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224 

(C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ, 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.”). See generally United States v. Toohey, 63 M.J. 

353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613, 617 (Army Ct. 

Crim. App. 2010); Collazo, 53 M.J. at 727. Given the unjustified dilatory post-trial 

processing of appellant’s case, and in light of our review of the entire record and the 

government’s concession, we find it appropriate to set aside two months of 

appellant’s confinement. 

CONCLUSION

The findings of guilty of Charge I and its specifications and Charge II and its 

specification are set aside and dismissed. The remaining findings of guilty are 

AFFIRMED. 

Although appellant requests a sentence rehearing, after conducting a thorough 

analysis in accordance with the principles articulated in United States v. Sales, 

(. . . continued)

more culpable individual convicted of substantially similar crimes, was adjudged a 

24 month sentence,” notwithstanding the SJA’s failure to identify the issue as legal 

error. 
ZUBAIR—ARMY 20110433

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22 M.J. 305 (C.M.A. 1986) and United States v. Winckelmann, M.J. , slip op. 

at 12-13 (C.A.A.F. 18 Dec. 2013), we are confident in our ability to reassess 

appellant’s sentence to cure the errors noted. 

In evaluating the Winckelmann factors, we find there is no dramatic change to 

the sentencing landscape. The military judge merged Specifications 1 and 2 of 

Charge I (attempted distribution of hashish) with Specification 1 of Charge III 

(distribution of hashish) for sentencing. Our dismissal of the specification of 

Charge II (false official statement) only reduces the maximum punishment from 

thirty-two years to twenty-seven years of confinement. The gravamen of appellant’s 

misconduct is the distribution of hashish to fellow soldiers on divers occasions and 

his use of hashish on divers occasions in a deployed setting. Furthermore, the 

offenses of which appellant remains convicted, involving the use and distribution of 

controlled substances, are commonly reviewed by this court. 

After our review of the record, we are confident that, absent the errors noted, 

appellant would have received a sentence of at least a bad-conduct discharge, 

confinement for thirty-two months, total forfeiture of pay and allowances, and 

reduction to the grade of E-1. See Sales, 22 M.J. at 308. Furthermore, having 

considered the excessive post-trial delay, the entire record, and the particular facts 

and circumstances of this case, we also find a two-month reduction in the sentence 

appropriate. See UCMJ art. 66(c). 

We affirm only so much of the sentence as provides for a bad-conduct 

discharge, confinement for thirty months, total forfeiture of pay and allowances, and 

reduction to the grade of E-1. 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 UMCJ arts. 58a(b), 58b(c), and 

75(a). 

Senior Judge YOB and Judge KRAUSS concur.

ANTHONY O. POTTINGER

Chief Deputy Clerk of Court

FOR THE COURT: