UNITED STATES ARMY COURT 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 Land Component Command (trial) 

Third Army (rehearing) 

Edward J. O’Brien, Military Judge (trial) 

Tiernan Dolan, Military Judge (rehearing) 

Colonel Katherine Spaulding-Perkuchin, Staff Judge Advocate (trial) 

Colonel Stephanie L. Stephens, Staff Judge Advocate (rehearing) (recommendation) 

Colonel Walter S. Weedman, Staff Judge Advocate (rehearing) (addendum) 

For Appellant: Captain Tiffany K. Dewell, JA (argued); Colonel Mark Tellitocci, 

JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley M. Voorhees, JA; 

Captain Tiffany K. Dewell, JA (on brief); Lieutenant Colonel Jonathan F. Potter, JA; 

Captain John L. Schriver, JA (on brief & reply brief following rehearing); Major 

Peter Kageleiry, Jr. 

For Appellee: Captain Kevin F. Sweeney, JA (argued); Colonel Norman F.J. Allen 

III, JA; Lieutenant Colonel Martha C. Foss, JA; Major Sara M. Root, JA; Captain 

Kevin F. Sweeney, JA (on brief); Lieutenant Colonel Amber J. Roach, JA; Major 

Daniel D. Maurer, JA (on brief following rehearing). 

21 May 2013 

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SUMMARY DISPOSITION ON FURTHER REVIEW 

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Per Curiam: 

On 3 March 2011, this court 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 Mar. 2011) (mem. op.). At the rehearing, an officer 

panel convicted appellant, contrary to his pleas, of two specifications of failure to 

obey a lawful regulation and assault upon a commissioned officer, 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 authority approved the adjudged sentence to 

confinement for fourteen days, forfeiture of $4,000.00 pay and allowances per month 

for three months,1

 and a reprimand.2

On 12 September 2012, the record of trial was returned to this court for 

further review, but the record only includes a summarized transcript of the 

rehearing. On 14 March 2013, appellant moved this court to order the government to 

complete a verbatim transcript. The government responded, requesting that this 

court, in lieu of ordering a verbatim transcript, approve a lesser punishment. We 

initially denied appellant’s motion for a verbatim transcript. Thereafter, appellant 

filed a brief arguing, “[t]his court cannot affirm 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 response, the government 

acknowledges that the record does not allow 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 shall 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 greater than two-thirds 

pay per month, or any forfeiture of pay for more than six months. . . .” R.C.M. 

1103(b)(2)(B) (emphasis added). UCMJ art. 54(c)(1)(A). Here, the adjudged 

forfeitures included allowances and are greater than two-thirds of appellant’s pay 

per month, thereby triggering 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 verbatim 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 (Army Ct. Crim. App. 2010) 

(en banc). Under the unique facts of this case, we decline 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 completion of a verbatim transcript. 

 

1

 Appellant’s pay at the time of trial, as indicated by the charge sheet, was $5,222.40 

per month. “When an accused is not serving confinement, the accused should not be 

deprived of more than two-thirds pay for any month as a result of one or more 

sentences by court-martial . . . unless requested by the accused.” 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 acquitted and should be deleted from the 

reprimand. 
FIORITO—ARMY 20080535 

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CONCLUSION 

 The action of the convening authority, dated 30 July 2012, is set aside. The 

record of trial is returned to The Judge Advocate General for the following to be 

accomplished by the same or a different convening authority: (1) completion of a 

verbatim transcript; (2) authentication 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 accordance with R.C.M. 1105 and 1106; (6) a new action in 

accordance with Article 60(c)–(e), UCMJ; and (7) return to this court for review 

pursuant to Article 66, UCMJ. 

 FOR THE COURT 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: