UNITED STATES ARMY COURT 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: Major Christopher D. Coleman, JA; Captain J. David Hammond, JA. 

For Appellee: Major John K. Choike, JA. 

12 April 2016 

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SUMMARY DISPOSITION 

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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 violation of Article 128, 

Uniform Code of Military Justice, 10 U.S.C. § 928 (2012) [hereinafter UCMJ]. The 

military judge sentenced appellant to a dishonorable 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 Article 66, UCMJ. Appellant 

personally raises four matters pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982), one of which merits discussion and relief. 

The military judge found appellant guilty, pursuant to his plea, of 

Specification 2 of The Charge, assault consummated by a battery, on divers 

occasions between on or about 1 September 2014 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 divers occasions, but there was evidence to support appellant 
ELOI—ARMY 20150382 

2

unlawfully struck TR on the buttocks with a knotted rope on only one occasion. 

Consequently, we will provide relief in our decretal paragraph by deleting the words 

“and buttocks” from Specification 2 of The Charge.*

CONCLUSION 

Upon consideration of the entire record, 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 about 1 September 2014 and on 

or about 9 October 2014, on divers occasions, unlawfully 

strike TR, a child under the age of 16 years, on the hands 

with a knotted rope. 

The remaining findings of guilty are AFFIRMED. 

We are able to reassess the sentence on the basis of the amended findings, and 

do so after conducting a thorough analysis of the totality of circumstances presented 

by appellant’s case and in accordance with the principles 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 landscape or the gravamen of 

appellant’s criminal conduct. 

Reassessing the sentence on the basis of the errors noted, 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 property, of which 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 Judge Advocate’s Post-Trial 

Recommendation regarding Specification 2 of The Charge. 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 Judge Advocate’s Post-Trial Recommendation, 

fails to except the word “back” in Specification 2 of The Charge. This is inconsistent 

with the finding of the military judge. We find no prejudice to appellant, however, 

since the Record of Trial, containing the correct finding of the military judge, is also 

included as an enclosure to the Staff Judge Advocate’s Post-Trial Recommendation. 

FOR THE COURT: