UNITED STATES ARMY COURT 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 Division (Rear)(Provisional) 

Douglas K. Watkins, Military Judge 

Lieutenant Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial) 

For Appellant: Major Christopher D. Coleman, JA; Captain Matthew L. Jalandoni, 

JA (on brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA. 

5 May 2017 

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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 assault and abusive sexual contact in violation of 

Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct 

discharge and confinement for thirteen months. The convening authority approved 

only so much of the adjudged sentence as provided for a bad-conduct discharge and 

confinement for twelve months pursuant to a pretrial agreement. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises three issues personally pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982); two merit discussion and one merits relief. 
SMITH—ARMY 20160316 

2 

Post-Trial Delay 

Appellant complains he suffered an undue, post-trial delay because 284 days 

elapsed between his court-martial and the convening authority’s action. While we 

find no due process violation under Barker v. Wingo, 407 U.S. 514 (1972), we also 

find no reasonable explanation for the delay and processing errors in this case and 

accordingly provide relief in our decretal 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 convicted of putting the victim’s penis in appellant’s mouth, so he 

now claims he was not provident to Specification 2 of Charge I in that the victim 

was not penetrated. 

Paragraph 3-45 of the Benchbook defines “sexual act” 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 slight, of the vulva or anus or 

mouth of another by any part of the body or by any object, 

with an intent to abuse, humiliate, harass, or degrade any 

person or to arouse or gratify the sexual desire of any 

person. 

(Emphasis added.) 

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

Benchbook and the version of Article 120, UCMJ, under which appellant was 

charged, include the definition of sexual act as “contact between the penis and the 

 

1

 Dep’t of Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook 

[hereinafter Benchbook], para. 3-45 (10 Sep. 2014). 

2

 Appellant does not state to which paragraph or version of the Benchbook he is 

referring. 
SMITH—ARMY 20160316 

3 

vulva or anus or mouth.” 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 the sentence as provides for a bad-conduct discharge and 

confinement for eleven months. All rights, privileges, and property, of which 

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

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

 Judge HERRING and Judge PENLAND concur. 

 FOR THE COURT: 

 JOHN P. TAITT 

 Chief Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: