## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK

, CAMPANELLA , and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 JORDAN J. JONES United States Army, Appellant

ARMY 20 1 10974

Headquarters, I Corps (Rear) (Provisional)

Dav id L. Conn

, Military Judge

Colonel Kurt A. Didier , Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Captain Matthew R. Laird, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; L ieutenant Colonel James L. Varley , JA; Major Ca therine L. Brantley , JA ; Captain Samuel Gabremariam , JA (on brief)

.

31 December 201 3

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

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

Judge HAIGHT :

A military judge sitting as a genera l court

- marti al convicted appellant, in

accordance with his plea s
, of attempted larceny, conspiracy to commit larceny (nine specifications) , failure to repair (eight specifications), absence without leave (two specifications), willfully disobeying a superior commissioned officer 1

, larceny, (sixteen specifications), obstruction of justice, and bank fraud, in violation of

Article s 80, 81, 86, 90, 121, and 134

, Uniform Code of Military Justice, 10 U.S.C.

1 We note the military judge, during the providence inquiry, neither defined “willful disobedience” for appellant nor provid ed the Military Judge’s Benchbook explanation of that element as “an intentional defiance of authority.”JONES

— ARMY 20110974

2

§ § 880, 881, 886, 890, 921

, 934 (2006) [hereinafter UCMJ]. 2 The military judge

se ntenced appellant to a bad

- conduct discharge, t o be confined for four years

, and forfeiture of all pay and allowances. The convening authority approved the adjudged sentence and c redited appellant with 168 days of confinement credit against the sentence t o confinement

.

This case is before us for review under Article 66, UCMJ . Appellant raises one assignment of error to this court as well as matters p ursuant to United States v. Grostefon , 12 M.J. 431 (C. M.A. 1982)

. However, a separate issue must first be

addressed and resolved.

LAW AND DISCUSSION

“In a case referred to it, the Court of Criminal Appeals may act only with respect to the findings and sentence as appro ved by the convening authority.” UCMJ art. 66(c) . In this case, the convening authorit y’s action makes no mention of the

fi ndings of the court

- martial. Rule for Courts

- Martial [hereinafter R.C.M.] 1107(c) provides that “[a] ction on the findings is not required.” However, “a convening authority who does not expressly address findings in th e action impliedly acts in reliance on the statutorily re quired recommendat ion of the [staff judge a dvocate (SJA) ] and thus effectively purports to approve implicitly the findings as reported to the convening authority by the SJA.” United States v. Diaz

, 40 MJ 335, 337 (C.M.A. 1994) (internal citation omitted)

.

Here, neither the staff j ud ge a dvocate’s recommendation (SJAR) to the convening authority nor its addendum list s or detail s the findings adjudged at appellant’s court

- martial

, but both instead p roperly rely upon the Result of Trial,

included as an enclosure to the SJAR . In accordance with R.C.M. 1106, the SJAR is required to contain “a copy of the report of results of the trial, setting forth the findings , sentence, and confinement credit to be applied.” R

. C

. M

. 1106(d)(3) (emphasis added). However, in this case

, the standard DA Form 4430 Report of

Result of Trial that was enclosed with the SJAR omitted The Charge and its two

s pecifications

. Instead, the findings and specifications listed and de tailed on the DA Form 4430 begin with Additional Charge I. 3

2 The Charge consisted of two specifications of Article 134, UCMJ, for wr ongfully communicating a threat and obstructing justice. T he remaining offen ses were contained in Additional Charges I

- VIII.

3 This clerical omission of The Charge and its specifications is somewhat understandable given that appellant was ultimately charged with seventy

- six specifications under nine charges.JONES

— ARMY 20110974

3

Therefore, we are unable to determine whether the convening a uthority was

aware of the findings of the court with respect to The Charge and its specifications,

and we do not know if he approv ed the finding of guilty to Specification 2 of The Charge

. 4 “Simply put, if the SJAR omits or misstates a finding of guilty, we have no jurisdiction to affirm it. We may either affirm only those findings of guilty (or portions thereof) that are correctly and unambiguously stated in the SJAR, or return the case to the convening authority for a new SJAR and action.” United States v.

Henderson , 56 M.J. 911 , 913 (Army Ct. Crim. App. 2002). We opt to return this case as the obstruction of justice offense for med at least part of the basis for appellant’s pretrial confinement. Nor do we find this crime, which carries a maximum punishment that includes five years confinement and a dishonorable discharge, to be insignificant.

CONCLUSION

The convening auth ority ’s initial action, dated 17 May 2012, is set aside. The record of trial is returned to The Judge Advocate General for a new staff judge advocate recommendation and a new action by the same or different convening authority in accordance with Article 60(c)

- (e), UCMJ.

Senio r Judge COOK and Judge CAMPANELLA concur.

4 Specification 1 o f The Charge was dismissed. ANTHONY O. POTTINGER Chief Deputy Clerk of Court FOR THE COURT: