## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant GARY J. ELOI United States Army, Appellant

ARMY 20150382

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill Charles L. Pritchard, Jr., Military Judge

Colonel David E. Mendelson , Staff Judge Advocate

For Appellant: Majo r Christopher D. Coleman, JA; Captain J. David Hammond, JA.

For Appellee: Major John K. Choike, JA.

12 April 2016

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Per curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of aggravated assault and one specification of assault consummated by a battery, in violat ion of Article 128, Uniform Code of Military Ju stice, 10 U.S.C. § 928 (2012) [hereina fter UCMJ]. The military judge senten ced appellant to a dishonorabl e discharge, confinement for eighteen months, and reduction to the grade of E- 1. The convening authority approved the sentence as adjudged.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant personally raises four matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), one of which me rits discussion and relief.

The military judge found appellant guilty, pursu ant to his plea, of Specification 2 of The Ch arge, assault consummated by a battery, on divers

occasions between on or ab out 1 September 20 14 and on or about 9 October 2014, for unlawfully striking TR, a child under the age of 16 years, on the hands and buttocks with a knotted rope . Our examination of the record finds evidence to support the allegation that appellant unlawfully struck TR on the hands with a knotted rope on dive rs occasions, but there was ev idence to support appellantELOI—ARMY 20150382

2 unlawfully struck TR on the buttocks with a knotted rope on only on e occasion. Consequently, we will provide relief in ou r decretal paragraph by deleting the words “and buttocks” from Specif ication 2 of The Charge. *

CONCLUSION

Upon consideration of the entire reco rd, including the matters submitted

pursuant to Grostefon, the court affirms only so much of the finding of guilty of Specification 2 of The Charge as finds that:

[Appellant], U.S. Army, did, at or near Fort Sill, Oklahoma, between on or ab out 1 Septembe r 2014 and on

or about 9 October 2014, on divers occa sions, unlawfully strike TR, a child under the ag e of 16 years, on the hands with a knotted rope.

The remaining findings of guilty are AFFIRMED.

We are able to reassess th e sentence on the basis of the amended findings, and do so after conducting a thorou gh analysis of the totality of circumstan ces presented by appellant’s case and in accordance with the pr inciples articulated in United States

v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013). In evaluating the Winckelmann factors, we first find no change in the penalty land scape or the gravamen of appellant’s criminal conduct.

Reassessing the sentence on the basis of the errors note d, the entire record, and in accordance with the principles of Winckelmann , 73 M.J. at 15-16, we

AFFIRM the sentence. All rights, privileges, and pr operty, of whic h appellant has been deprived by virtue of that portion of his findings set aside by this decision, are

ordered restored.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

* We note an administrative error in the Staff Judg e Advocate’s Post-Trial Recommendation regardin g Specification 2 of The Char ge. The Corrected Copy of the Dep’t of Defense Form 2707-1, Report of Result of Trial (Mar. 2013) (DD Form 2707-1),

included as an enclosure to the Staff Ju dge Advocate’s Post-Trial Recommendation, fails to except the word “back” in Specificat ion 2 of The Charge. This is inconsistent with the finding of the military judge. We find no prejud ice to appellan t, however, since the Record of Trial, c ontaining the correct finding of the milita ry judge, is also

included as an enclosure to the Staff Ju dge Advocate’s Post-Trial Recommendation. FOR THE COURT: