## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, HERRING, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class FREDRICK J. SMITH United States Army, Appellant

ARMY 20160316

Headquarters, 1st Cavalry Di vision (Rear)(Provisional) Douglas K. Watkin s, Military Judge

Lieutenant Colonel Oren H. McKnel ly, Staff Judge Advocate (pretrial) Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)

For Appellant: Major Christ opher D. Coleman, JA; Captai n Matthew L. Jalandoni, JA (on brief).

For Appellee: Lieu tenant Colonel A.G. Courie III, JA.

5 May 2017

---------------------------------- SUMMARY DISPOSITION

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CAMPANELLA, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of sexual assa ult and abusive sexual co ntact in violation of

Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge and confinement fo r thirteen months. The co nvening authority approved only so much of the adjudged sentence as provided for a bad-conduct discharge and confinement for twelve months pur suant to a pretrial agreement.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises three issues pe rsonally pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982); two merit discus sion and one merits relief.SMITH—ARMY 20160316

2 Post-Trial Delay

Appellant complains he su ffered an undue, post-tria l delay because 284 days elapsed between his court-ma rtial and the convening auth ority’s actio n. While we find no due process violation under Barker v. Wingo , 407 U.S. 514 (1972), we also

find no reasonable ex planation for the dela y and processing errors in this case and accordingly provide relief in our decret al paragraph. See United States v. Collazo

, 53 M.J. 721, 727 (Army Ct . Crim. App. 2000).

Definition of Sexual Act

Appellant argues that his actions did not meet the definition of sexual act from the Military Judges’ Benchbook, 1 which he claims defines sexual act as “the penetration, however slight, of the vulva or anus or mouth of another by the penis.” 2
Appellant was convicte d of putting the vict im’s penis in appellant’s mouth, so he now claims he was not provid ent to Specificati on 2 of Charge I in that the victim was not penetrated.

Paragraph 3-45 of the Be nchbook defines “sexual ac t” via two subsections:

(A) contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

or

(B) the penetration, however slig ht, of the vulv a or anus or mouth of another by any part of the body or by any object, with an intent to abuse, hum iliate, harass, or degrade any
person or to arouse or grat ify the sexual desire of any

person.

(Emphasis added.)

Appellant seems to merge these two definitions in his argument. Both the

Benchbook and th e version of Articl e 120, UCMJ, under wh ich appellant was charged, include the definition of sexual act as “contact betw een the penis and the

1 Dep’t of Army, Pam. 27-9, Legal Se rvices, Military Judges’ Benchbook [hereinafter Benchbook], pa ra. 3-45 (10 Sep. 2014).

2 Appellant does not state to which paragraph or versio n of the Benc hbook he is referring.SMITH—ARMY 20160316

3 vulva or anus or mout h.” UCMJ art. 120 ( 2012). We, therefore, find no reasonable

basis in law or fact to question the providence of his plea.

CONCLUSION

The findings of guilty are AFFIRMED.

After considering the entire record and the post-trial delay, the court AFFIRMS only so much of th e sentence as provides for a bad-c onduct discharge and confinement for eleven months. All righ ts, privileges, and property, of which appellant has been deprived by virtue of th at portion of the sentence set aside by this

decision are orde red restored. See UCMJ arts. 58b(c) and 75(a).

Judge HERRING and Ju dge PENLAND concur.

FOR THE COURT:

JOHN P. TAITT Chief Deputy Clerk of Court JOHN P. TAITT Chief Deputy Clerk of Court FOR THE COURT: