## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. First Lieutenant JEFFEREY M. FIORITO United States Army, Appellant

ARMY 20080535

United States Army Central Coalition Forces La nd Component Command (trial) Third Army (rehearing) Edward J. O’Brien, Military Judge (trial) Tiernan Dolan, Milita ry Judge (rehearing) Colonel Katherine Spaulding-Perkuc hin, Staff Judge Advocate (trial) Colonel Stephanie L. Stephens, Staff Judge Advocate (rehearing) (recommendation) Colonel Walter S. Weedman, Staff J udge Advocate (reh earing) (addendum)

For Appellant: Captain Tiffany K. Dewell, JA (argued); Colone l Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA; Captain Tiffany K. Dewe ll, JA (on brief); Li eutenant Colonel Jona than F. Potter, JA; Captain John L. Schriver, JA (on brief & reply brief following rehearing); Major Peter Kageleiry, Jr.

For Appellee: Captain Kevi n F. Sweeney, JA (argued); Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha C. Fo ss, JA; Major Sara M. Root, JA; Captain Kevin F. Sweeney, JA (on brief); Lieute nant Colonel Amber J. Roach, JA; Major Daniel D. Maurer, JA (on brief following rehearing).

21 May 2013

--------------------------------------------------------------- SUMMARY DISPOSITION ON FURTHER REVIEW

---------------------------------------------------------------

Per Curiam:

On 3 March 2011, this cour t set aside the findings and sentence in this case and authorized a rehearing. United States v. Fiorito , ARMY 20080535, 2011 WL 779922 (Army Ct. Crim. App. 3 Ma r. 2011) (mem. op.) . At the rehear ing, an officer panel convicted appellant, contrary to his pl eas, of two specifications of failure to obey a lawful regulation and assault upon a commissioned of ficer, in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 928 (2006)FIORITO—ARMY 20080535

2 [hereinafter UCMJ]. The convening auth ority approved the adjudged sentence to confinement for fourteen days, forfeiture of $4,000.00 pay and al lowances per month for three months, 1 and a reprimand. 2

On 12 September 201 2, the record of trial was re turned to this court for further review, but the reco rd only includes a summarized transcript of the rehearing. On 14 March 2013 , appellant moved th is court to order the government to complete a verbatim transc ript. The governmen t responded, requesting that this court, in lieu of ordering a verbatim tr anscript, approve a lesser punishment. We initially denied appellant’s motion for a verbatim transcri pt. Thereafter, appellant filed a brief arguing, “[t]his court cannot a ffirm a special court-martial sentence in
this case unless it is first convinced that the summarized record of trial before the court supports the findings as correct in law and fact.” Moreover, appellant argues, the record in its current state is “replete with error.” In re sponse, the government acknowledges that the record does not allo w for addressing the substantive errors alleged in appellant’s brief and requests, as an alternative, that this court return the case for completion of a verbatim transcript.

“[T]he record of trial shal l include a verbatim transcript of all sessions except
sessions closed for deliberations and voting when [a]ny part of the sentence adjudged exceeds six months confinement, forfeiture of pay grea ter than two-thirds pay per month , or any forfeiture of pay for more than six m onths. . . .” R.C.M. 1103(b)(2)(B) (emphasis adde d). UCMJ art. 54(c)(1 )(A). Here, the adjudged
forfeitures included allowan ces and are greater than two-thirds of appellant’s pay per month, thereby tri ggering the requirement for a verbatim transcript. When faced with an incomplete record due to a summarized transcript, this court may, inter alia

, order the government to complete a verb atim transcript, or simply approve a
sentence not in excess of the limits of R.C.M. 1103(b)(2) and Article 54(c)(1),

UCMJ. See United States v. Gaskins , 69 M.J. 569, 571 (Arm y Ct. Crim. App. 2010) (en banc). Under the unique facts of this case, we decl ine to apply the “pragmatic solution” of approving a lesser form of punishment. United States v. Thompson , 47 M.J. 134, 135 (A.C.M.R. 1973). Therefore, we agree with the parties and order the record to be returned for comple tion of a verbatim transcript.

1 Appellant’s pay at th e time of trial, as in dicated by the charge sheet, was $5,222.40 per month. “When an accused is not servin g confinement, the acc used should not be deprived of more than two-thirds pay fo r any month as a result of one or more sentences by court-martial . . . unless requested by the ac cused.” Rule for CourtsMartial [hereinafter R.C.M. ] 1107(d)(2) discussion. See United States v. Warner , 25 M.J. 64 (C.M.A. 1987).

2 Appellant alleges and the government concedes that a portion of the reprimand
refers to conduct of which appellant was acquitte d and should be deleted from the reprimand.FIORITO—ARMY 20080535

3 CONCLUSION

The action of the convenin g authority, dated 30 July 2012, is set as ide. The record of trial is returned to The Judg e Advocate General for the following to be accomplished by the same or a different c onvening authority: (1) completion of a verbatim transcript; (2) auth entication of the record of trial in accordance with Article 54(a), UCMJ; (3) a new staff judge advocate recommendation (SJAR); (4)
service of the SJAR and authenticated record; (5) processing of post-trial submissions, if any, in ac cordance with R.C.M. 1105 and 1106; (6) a new action in accordance with Article 60(c)–(e), UCMJ; and (7) return to th is court for review pursuant to Arti cle 66, UCMJ.

FOR THE COURT

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: